Wednesday, January 6, 2010

Tillman on Originalism and the Annals of Congress

Seth Barrett Tillman has posted Originalism, the Annals of Congress, and the Problem of Constitutional Memory. Here's the abstract:
The Constitution contains several clauses referring to government “offices” and “officers.” The precise phrasing used in the different clauses is similar but textually distinct. In several recent publications, I have that argued that these fine textual distinctions were purposely drafted by Gouverneur Morris (the Committee of Style’s primary draftsperson) and by the other members of the Federal Convention and that they were also meaningful to the Constitution’s intended audience, even if such distinctions usually pass without analysis or even notice by modern commentators. The purpose of this short Article is not to rehash that debate, or even to present a further substantial defense of the ideas already presented on several prior occasions. Instead, the purpose of this Article is to explain one reason why modern scholarship in this area failed to fully engage the Constitution’s text. My answer is a simple one. Modern scholars treats the Annals of Congress as an official record of contemporaneous congressional debate. That was and is a mistake. Nor is it a mistake limited to those scholars researching obscure constitutional word-choice relating to “office” and “officer.” It is a mistake made by the widest body of scholars, left or right or center, researching virtually each and every provision of the original Constitution of 1787 and its antebellum amendments. My topic here is a narrow one, but it has implications for constitutional scholarship generally.
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