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Unpublished Paper
Legislative Officer Succession: Part III - A Constitutional Conjecture
  • Seth Barrett Tillman, None

Parts I and II of "Legislative Officer Succession" can be found at This is the third section. This section of the paper is not a discursive essay; rather, it is a (constitutional) conjecture put forward in chart form which attempts to distinguish the Constitution's varying terminology in regard to "offices" and "officers" and "trusts," including officers "of" and "under" and "under the authority of" the United States. Thus, this paper is a response to Professors Akhil Reed Amar and Vikram David Amar's 1995 Stanford Law Review publication which boldly took the position that:

The Constitution employs the concepts of offices and officers in many different provisions. At various points the document refers to "Officers of the United States," to "civil Officers of the United States," to "civil Office under the Authority of the United States," to "Office under the United States," and to "Office of Trust or Profit under the United States." As a textual matter, each of these five formulations seemingly describes the same stations (apart from the civil/military distinction) – the modifying terms "of," "under," and "under the Authority of" are essentially synonymous.

Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 STAN. L. REV. 113, 114-15 (1995); cf. John F. Manning, Response: Not Proved: Some Lingering Questions About Legislative Succession to the Presidency, 48 STAN. L. REV. 141, 146 (1995) ("The Presidency is surely an 'Office under the United States' . . . ."); Steven G. Calabresi, Response: The Political Question of Presidential Succession, 48 STAN. L. REV. 155, 159 n.24 & 161 n.34(1995) (taking the position that the President is an "officer of the United States").

This paper seeks to illustrate that the Constitution's varying terminology is not without purpose, meaning and effect, and that the four commentators who authored the three articles of the Stanford Trilogy failed to fully consider all the (reasonable) alternatives. See, e.g., 2 Joseph Story, Commentaries on the Constitution of the United States, Sec. 791 (1833).

The charts can be found on my BEPRESS website: (under "Stanford Trilogy Charts").

The individual charts my be accessed at:

Comments, queries and citations are welcomed.

[May 2, 2011]

  • office,
  • officer,
  • official,
  • magistrate,
  • Sucession,
  • Legislative Officer,
  • Speaker,
  • Senate President,
  • Pro tem,
  • Pro tempore,
  • President,
  • Congress,
  • Cabinet
Publication Date
January, 2008