How Far Do Text and Early History Take Us? A Comment on Seth Barrett Tillman's Intriguing Argument

By Mike Dorf

Seth Barrett Tillman's argument that the Constitution permits the same person to serve simultaneously in Congress and as either President or VP is elegant and seemingly airtight.  Nonetheless, I'm not persuaded by it, at least not yet.

Let's begin with three shared premises.  (1) I agree with Tillman that, as he aptly puts it, "Policy and law overlap, but they are not the same."  (2) Thus, we also agree that there are plenty of stupid, wrongheaded and crazy things that government or individual government actors might do that would not violate the Constitution.  And because we also agree that (3) it would be "nuts" for Paul Ryan (or just about anyone else) to serve as a member of the House and as VP simultaneously, we have the nub of the question: Is this one of those stupid, wrongheaded or crazy things that doesn't violate the Constitution or is it one of those things that is so stupid, wrongheaded or crazy that we ought, if possible, to try to read the Constitution to forbid it?

That brings me to what I believe to be our disagreement, which is not so much about the relevant evidence, but about how to weight various pieces of it.  Tillman has persuaded me that, standing alone, the text and early history of the Constitution are probably best read to permit a single person simultaneously to serve in Congress and as either President or Vice-President.  But text and early history do not stand alone.  To use language coined by Philip Bobbitt, there are other "modalities" of constitutional interpretation, including structure and prudence--and these seem to me to give ample room to implement the intuition that dual service in Congress and the Presidency or Vice Presidency is nuts.

The notion that some practice is nuts is another way of saying that the "prudential" modality of constitutional interpretation counts against it.  Prudence alone is virtually never a sufficient basis for a constitutional conclusion, of course.  Among other things, it cannot by itself overcome unambiguous text.  For example, suppose the Constitution contained the following language: "Nothing in this Constitution shall be construed to forbid an otherwise qualified person from serving simultaneously as both a member of either House of Congress and as President or Vice President."  If so, then I would fully agree with Tillman that, no matter how nuts, Paul Ryan could hold onto his House seat even as he served as VP.

But the Constitution does not contain such unambiguous language.   To be sure, Tillman's textual argument is a good one.  He uses a technique that Akhil Amar has called "intra-textualism" to glean the meaning of a term--"Office"--from how it and other terms are used in other parts of the document.  If we had only the text of the Constitution, I think I would be persuaded by his reading.  But the Constitution is not the perfect word of God.  Sometimes its juxtapositions contain just those meanings that we attribute to them.  And even if this is not such a circumstance, there is, in my view, enough wiggle room for the text to support what may turn out to be an ahistorical view.

Moreover, given all that has happened since the Founding, I'm not sure how helpful the early history is here.  Consider that for about a month and a half in 1801, John Marshall served as both Secretary of State and Chief Justice.  Doing so did not violate the Incompatibility Clause, of course, because Marshall was not a member of Congress.  (He left the House in June 1800, six days before becoming Secretary of State.)  But I think today we would rightly regard such dual service as inconsistent with the structural principle of separation of powers.  Given that one core purpose of an independent judiciary is to check the executive, it seems a pretty blatant violation, in fact. 

Wouldn't modern separation of powers principles yield the same result for dual congressional/executive service?  After all, in our system, Congress and the executive are also meant to serve as checks on one another.

We might even concede that Tillman is right that the Incompatibility Clause itself doesn't prohibit Paul Ryan from serving as VP and a member of Congress simultaneously, but the structural principle of separation of powers does--or at least should.  Modern separation of powers doctrine condemns some practices that are not expressly forbidden by any  constitutional text--like the legislative veto.  In his dissent in INS v. Chadha, Justice Byron White made precisely this point: Article I, Section 7 does not expressly forbid a legislative veto.  But seven Justices rejected the legislative veto because of how it upset the system of checks and balances.  They read the text of Article I, Section 7--one might even say they stretched the text--in light of the structural principle of separation of powers.

Having said all of that, I think Professor Tillman deserves enormous credit for articulately defending a view that seems quite counter-intuitive on first hearing.  Notwithstanding the objections I have raised, I could see a court buying his argument.  And if so, I don't think that would necessarily be so bad.  There are such strong political checks on simultaneous service in Congress and as Pres or VP that if someone were to attempt it nonetheless, that would likely be because we are facing some crisis to which the ordinary rules of politics do not apply.