Parchment Barriers: Why Tillman and Natelson Are Wrong about the Anti-Corruption Principle
posted by Zephyr Teachout
I have argued in several articles and a forthcoming book that the Anti-Corruption Principle was and is a foundational constitutional principle. Larry Lessig has argued the same in a book, several articles, and a brief before the Supreme Court. He also runs a fascinating tumblr of corruption conversations at the convention. We both show how it motivated the Constitutional convention and was the overwhelming topic of the convention. The founding drafters would judge their own success or failure in terms of the Constitution in terms of whether or not it protected against corruption. As George Mason said as the Constitutional Convention got under way: “If we do not provide against corruption, our government will soon be at an end.” I am not going to recite the argument here–its a substantial, text and history based argument. However, it leads to treating the Anti-Corruption Principle like federalism or the separation of powers–a fundamental structural part of the Constitution.
There are two general disagreements with this view: First, that I, and or Lessig, don’t characterize the meaning of corruption at the time properly (we have slight differences), and second, that it was not and is not a Constitutional principle. Seth Tillman, and Rob Natelson citing Seth Tillman, have both recently argued that there is no such principle. Tillman sees a kind of smoking-gun flaw with the argument–the evidence that the word “corruption” was taken out of the impeachment clause as a ground for impeachment.
Tillman writes: ”But when the Framers had a chance (actually multiple chances) to give this concept prominence in the Constitution’s actual text, the Framers chose not to do so. It is not as if they forgot to use this term or, instead, used some close synonym; rather, they actively took this term out of the Constitution. So why should we today embrace the corruption concept as one having constitutional scope or dimension?”
I have three responses. First, the absence of the word “corruption” does no more to the anti-corruption principle than the deliberate choice to exclude “separation of powers” does to the separation of powers principle. Second, the reason the word was taken out is because corruption is ill-suited to bad-intent criminal law statutes, and well-suited to prophylactic statutes or constitutional provisions that don’t reference state of mind. Tillman has a common confusion–he treats the scope of the word corruption as that which can be defined in a criminal-law like statute. Third, Tillman’s particular argument contrasts with his general support for the anti-corruption principle.
(1)First, the founders made a similar choice with regards to separation of powers. When critics objected, Madison skewered them with the argument that they were making “parchment barriers” be more important than fundamental understandings of power. If Tillman’s argument applies to the anti-corruption principle, it applies with even greater force to the separation of powers principle.
There is no text in the Constitution which refers to “separation of powers.” The choice not to include this separation of powers principle was deliberate, and in direct opposition to the trend in the states. Several State Constitutions had particular sections of their constitutions committing their state governments to separation of powers. In Maryland, for instance, the Constitution included this phrase: “…”. Virginia’s Constitution stated that “the legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either House of Assembly.” In North Carolina, the Constitution allowed that “the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other.” Georgia’s Constitution stated that “the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercised the powers properly belonging to the other.” Many other states had similar provisions. A few years after the Constitution, the Declaration of Man in France included an express “separation of powers” provision: “A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all.”
During ratification debates, critics pointed out the absence of such a provision.
They also argued that the new Constitution’s structure violated the basic principle that separate departments was supposed to serve. The “vortex of influence,” as Lee calls it in the Antifederalist papers 77 and 78, was a central evil to be avoided, but could be avoided if the virtuous aspirations of good men were tapped into. The problem was that the new federal government was going to have few enough legislators that each one of them could be tempted by the possibility of serving in a lucrative office. The legislators, being prominent men, would likely expect that they would be selected to serve in offices after having served their constituencies. So the new Constitution did not adequately protect against this temptation by including a set amount of time in which the legislators could not later take one of these offices. Lee was concerned that the legislative function could be hurt by the “hankerings and corruption of offices.”
The veto power, critics argued, would undermine the basic idea behind separated functions of government. William Penn explains the core meaning of separation of governmental powers in federalist 73. Tyranny comes, he explains, when the same group of people who have the power to raise money can use it for their own benefit. If legislators have the power to appoint, he argued, they will appoint friends to offices. Penn’s great concern was that the new constitution gave the executive branch legislative power with the veto, or the negative. He believed that with the “negative” power, the Executive could come to control the legislative branch, then having in one place the powers that are most dangerous—the ability to create and fund lucrative offices.
Critics charged the new Constitution with being a function of the elites, designed to serve elite interests. The Constitution was designed for “men of great wealth in expectation of public offices who “like greedy gudgeons” want to “satiate their voracious stomachs with the golden bait.” The golden bait is jobs.
Madison summarized these accusations as such:
One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.
Madison’s response to the charge was to separate out the formal statement of the principle (separation of powers) from the precise concerns related to the principle.. Madison, in Federalist 47 and 48, rejects the formal understanding as a parchment model that is unrelated to the real concerns. His argument depended on two pillars. First, he argued, there was no evidence of a clean line between the executive, legislative, and executive branches within the existing states that had, in fact, included explicit provisions for separations within their constitutions. Because of this, he said, a “parchment” commitment to separation of powers would do no practical work. The state constitutions he believed to have been “hastily” drafted, and without the benefit of experience. Second, he argued that there was necessarily some overlap between the different functions, and a strict rule could disable a functioning of the principle: power can’t be drafted in a law, while functions can, but that doesn’t mean that power isn’t important.
Instead of separation of powers as a formal commitment, Madison says, what is important is that the structure be built in a way that would lead to too much accumulated power in one branch of government. The trouble is not overlapping functions, but concentrated power, and the things that accompany that concentration of power. The complaint, therefore, is not so much that power be separated between three branches, or within the branches—Madison never accepts that argument. Instead, the trick is that there be no way for accumulation of power in “the same hands.” “Parchment barriers” are overrated.
I could go further–for now suffice it to say that I hope Tillman and Natelson are equally willing to dispose of the separation of powers principle.
(2) Second, Tillman confuses the legitimate scope of the meaning of corruption with its legitimate use as a tool for individual judgement.
This far, Tillman is correct:
“Corruption” appeared in a preliminary draft of the Constitution’s Impeachment Clause. But this language was dropped, and superseded by “treason, bribery, and maladministration,” but the “maladministration” language appeared too vague. (Meigs, The Growth of the Constitution in the Federal Convention of 1787 233-34 (1899).) The Convention did not return to the earlier “corruption” language, and instead, it chose “treason, bribery, or other high crimes and misdemeanors.”
This seems right to me, and not an indication on its face that there was an anti-corruption principle, but rather that it was not an appropriate tool for the role of determining who should be impeached. Bribery and extortion were high misdemeanors at the time, so any “high crimes and misdemeanors” would include bribery and extortion and other crimes related to abuse of office. The choice to take out the particular word, as too vague, doesn’t mean the founders didn’t believe in corruption (the most cursory review of any writing shows the opposite), but that they saw government’s tools for fighting corruption to be better placed in prophylactic rules. The anti-corruption provisions of the constitution, like emoluments clauses or the veto clause or the residency clause are designed to limit corruption but don’t reference particular corrupt actors.
Assume, for a moment, that corruption was taken out for vagueness–that doesn’t make it not a founding era principle, it simply makes it a bad candidate for being the grounds of impeachment. Arguably, the vagueness cuts the other way–it is such a fundamental concept of enormous foundational import that it would threaten to trivialize it if were litigated in terms of legitimate impeachment.
Laws that include or refer to “corrupt” or “corruptly” always threaten to violate some of these requirements of non-vagueness, because it is not always clear and intelligible what behavior is covered by corruption statutes.
Let me give an example. A jury is told they must find that a defendant acted “corruptly” to convict under a federal bribery statute and that corruptly means, among other things, “intent to give some advantage inconsistent with official duty and the rights of others.” The scope of “official duty and rights of others” is broad. In some jurisdictions, the jury is essentially asked to make a judgment about whether the defendant thought he shouldn’t be getting the advantage he was getting. This seems to give prosecutors, and juries, enormous leeway to determine what constitutes official duty and deviance therefrom. One might argue that this is an unworkable and unconstitutional jury instruction, because it gives too much law-making ability to fact-finders, and leaves citizens without clear guideposts about what constitutes illegal vs. illegal behavior. Rick Pildes and Sam Issacharoff argued as much in an amici brief on behalf of former Alabama Governor Don Siegelman, convicted of bribery (among other things) for trading official acts for campaign donations. They argued that the vagueness of the jury instruction in Siegelman’s case is unconstitutionally vague. Here’s the instruction: “A Defendant does not commit a crime by giving something of value to a government official unless the Defendant and official agree that the official will take specific action in exchange for the thing of value.” Instead, they argue, the Court should instruct the jury that it must find evidence of an explicit quid pro quo.
However, whatever legal determination is made about whether it is a legal jury instruction should not then be used as evidence of the scope of what “corruption” means more generally. It is simply a statement about what is appropriate to criminalize. The scope of permissible enacted corruption concepts must be disentangled from the question of the meaning of the concept. The limits of possible law do not serve as the limits of conceptual understanding. If they are not untangled, the conceptual analysis suffers from an unspoken and under-theorized positivist limitation on the corruption concept. The sensible thesis, which is simply that: “Laws that reference corruption must do so in a way that will not violate the Due Process clause” should not bleed into this less defensible thesis: “corruption means only that which can be written in a statute that does not violate the Due Process clause.”
The sensible conclusion that corruption is too vague as a basis for impeachment has no fundamental relationship to the argument that anti-corruption was a foundational constitutional principle. To tie these two first arguments together, the founders could have taken out an impeachment clause for “bribery, treason, and violation of the separation of powers” on grounds that the latter was too vague for impeachment; that wouldn’t make it too vague to have constitutional meaning.
(3) Tillman’s initial historical read was more supportive.
Tillman, up to now, has generally supported the argument for an anti-corruption principle . In a colloquy between us at Northwestern he wrote: “There is a structural anti-corruption principle of constitutional dimension. That principle, the ACP, vindicates substantial congressional control over statutory officers, i.e., officers under the United States. It puts federal statutory officers in a fiduciary relationship under the government, in respect to the officers’ elected masters and all of the nation’s citizens.” However, he and I disagree about the scope–he thinks it applies only to appointed, not elected officers. Tillman’s general interest, for those being introduced to the debate, is the meaning of the word “officers”–his argument is in the prior article, my response on officers is here. We disagree about offices, but I think he has strong and interesting arguments. I hope he returns to this basic principle, and engages the question of what corruption means inside the historical context of the acceptance, instead of rejection of the principle.