The rationale for what is now called “originalism” has chiefly to do with the legitimacy of the 1787 Constitution.
In Jennifer Mascott’s new paper, Who are the Officers of the United States?, she argues that the definition of an officer was much broader than the Buckley standard of significant authority pursuant to the laws of the United States and that it included positions with ministerial duties. I think the evidence that the paper discusses supports this conclusion.
The common definition of office defined it broadly, as Chief Justice Marshall did in 1815, when he wrote it was “ ‘a public charge or employment,’ and he who performs the duties of the office, is an officer. If employed on the part of the United States, he is an officer of the United States.” This broad interpretation accorded with many statements, including those by George Mason and Gouverneur Morris that Mascott mentions (and that are referenced in a reader’s comment to my prior post). Mascott also notes Thomas Bailey’s dictionary included more than 500 references to the term “officer” – and those references to officers “encompassed numerous record-keepers, assistants, and other officials with duties of a menial nature.”
While the fact that the definition is broader than the one Buckley employs is important, the question remains how one draws the line between an officer and a non-officer. Although today we call the latter category an employee, Mascott notes that the Framers’ generation would not have used the term “employee.” When they spoke of non-officers, they tended to refer to “servants or attendants.”
Mascott proposes a definition of an officer as one who enforces a statutory duty. Even assuming this is the correct standard, this standard still requires more precision, because it is unclear what enforcement of a statutory duty is. One might define that standard broadly to include servants on the theory that they helped implement an agency’s statutory duty and mission. After all, if they did not, hiring them at all would presumably not be authorized. How then to draw the line in a way that is faithful to the concepts of the Framers’ generation?
One possibility is that the Framers had a concept of distinguishing between significant and minimal authority, like Buckley’s, but that they drew the line to include as officers many more people who had ministerial duties. That is certainly a possibility. Under that view, we would need to know more about how to draw the line, but the positions they included and excluded from the officer category would provide helpful guidance. Moreover, under that view, modern government workers, such as secretaries and assistants, might be excluded from being officers as not sufficiently exercising authority.
But it is not clear that is the correct way to understand the Framers’ world. Perhaps they distinguished servants based on social understandings at the time that drew a distinction between a servant and other jobs (such as those filled by gentlemen plus other people lower in the social hierarchy) that informed the concept of an officer. That social understanding would then be relevant to the constitutional meaning of an officer.
Under this possibility, the hardest part would be applying it to the modern day. If the social distinction between servants and others no longer apply in our world, then it might be hard to apply it to arguably new positions such as secretaries and assistants, while remaining faithful to the concepts of the Framers world.