1 Stat. 112 (1790)
sbarretttillman at yahoo.com
Sun Apr 18 12:46:55 PDT 2010
re: An Act for the Punishment of Certain Crimes
against the United States, ch. 9, Stat. 112 ( 1790), stated that any
person offering a bribe “to obtain or procure the opinion, judgment, or decree
of any judge of the United States, in any suit, controversy, matter, or cause
... and shall be thereof convicted ... [and the judge accepting such bribe]
shall forever be disqualified to hold any office of honor, trust, or profit,
under the United States.”
It seems to me that there are (at least) 3 ways to interpret this provision. First, the Congress and President (who signed it), thought that they were adding to the qualifications for the presidency and vice-presidency, to the extent that the latter two offices may be subsumed under the statutory language: "office of honor, trust, or profit, under the United States." (Yes, I am aware that, arguably, the pre-XII Amendment vice-presidency had no textual qualifications -- but let's leave that aside.)
The intent of Congress was to reach statutory and/or appointed officers, not elective office-holders, but they gave no thought to the P and VP and to the extent that the statutory language reached the P and VP, the statute may be over broad and possibly unconstitutional on the theory that you cannot add by statute to the qualifications for office set out in the Constitution. (Powell v. McCormack; U.S. Term Limits v. Thornton).
The phrase "office of honor, trust, or profit, under the United States" does not reach and was not understood to reach the presidency or vice-presidency, and the statute is not over broad. The phrase only reaches statutory and/or appointed offices, not elected set out in the Constitution.
Does anyone have any reason to prefer one of these interpretations over any other? (Opinions and sources welcomed.)
Seth Barrett TillmanAdjunct Professor Rutgers Law School (Newark)http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=345891http://works.bepress.com/seth_barrett_tillman/
RECENT RESPONSES TO MY PUBLICATIONS:Jeremy D. Bailey, Response, The Traditional View of Hamilton's Federalist No. 77 and an Unexpected Challenge, 33 Harv. J.L. & Pub. Pol'y 169 (2010), http://tinyurl.com/yz8sldo, responding to http://tinyurl.com/yffqfzn.Randall Balmer, Response to Geoffrey R. Stone and Seth Barrett Tillman, Essay, 2010 Cardozo Law Review de novo (forthcoming circa May 2010).
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