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A Drafting Error in the Constitution?

Did the framers of the Constitution in 1787 in Philadelphia make a mistake in the document they drafted? I don't mean a "mistake" in the sense that the Constitution recognizes slavery or contains other flaws. I mean a drafting error. Did the framers include language in the document which they did not intend? Did they write something in the Constitution by mistake?

Drafting Documents Circa 1787

The delegates needed to agree not only on the general form of government, but the language -- the drafting -- of the Constitution as a document. We tend to forget the practical challenges this presented in 1787. There were no Google docs. Nobody could say: "Attached are comments from the Virginia delegates in redline." Anyone who has negotiated a contract knows that agreeing on the principal terms -- the price or basic conditions of a transaction -- is really only the beginning of the drafting process. At the Constitutional Convention, there were dozens of delegates from thirteen different states. Opinions differed fiercely, and ego was not in short supply. Money, power, and the future were on the line. Every word of the Constitution might be scrutinized for generations to come. How did the framers come to agreement on drafting the language for a shared document?

There were two key moments in this process. When the delegates first gathered in May 1787, they began discussing the contours of a possible new government at the broadest level. By late July, they had made enough progress to prepare a draft document -- a first draft of the Constitution itself. Thus, between July 27 and August 5, the Constitutional Convention did not meet, but instead, a committee of five delegates, known as the Committee of Detail, met separately and prepared a draft constitution. Returning to full session August 6, 1787, the first thing the Convention did was distribute to each delegate one copy of the Committee of Detail's draft constitution. The delegates would work off that draft through the 1787 summer, debating and editing its language and various provisions.

It is noteworthy that Madison's notes of the Constitutional Convention specifically record that a printed copy of the Committee of Detail draft was distributed to each delegate before the Convention began working through it. Working off a common document was a significant technical step for the delegates. Printing and sharing a draft was expensive but important. The Convention would have two chances to print a preliminary draft of the Constitution. This was one of them.

The second was at the end of the summer. After five weeks debating the first draft of the Constitution, the delegates had reached agreement on many of their differences, and voted to include, remove or edit much of the document's language. A second committee -- the Committee of Style -- synthesized all these comments and prepared a nearly final draft of the Constitution on September 12, 1787 -- just a few days before the Convention wrapped up and the delegates went home.

The September 12 draft of the Constitution was very nearly final, but the delegates squeezed in just a few more changes on September 13th and 14th, and one of those, we shall see, creates a potential textual problem in the document. The delegates changed a provision in the draft which was rational on its own, but which created an inconsistency with another provision. Importantly, those last minute changes on September 13 and 14, 1787, were never reviewed by a committee tasked with synthesizing and merging the delegates' comments into a single coherent document. After September 12, there was no time or interest to review all the Constitution's other provisions and debate how those might be affected by a few last minute changes. The delegates had the votes to approve and were eager to go home.

The Problem

The Appointments Clause of the United States Constitution reads (U.S. Const. Art. 2 sec. 2):

he [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law

So, the President can appoint officers of the United States, "whose appointments are not herein otherwise provided for." Put differently, if the Constitution establishes how a particular officer is to be selected -- for example, if the Constitution says there is a particular officer of the government who must be appointed by Congress -- then the Constitutional process must be honored. The President has no right to appoint such an officer. All other officers -- all the officers whose "appointments are not... otherwise provided for" -- are appointed by the President with the advice and consent of the Senate.

Problem: there are no officers of the United States whose appointments are "otherwise provided for" in the Constitution. The President appoints all the officers, so who and what are the non-Presidential appointments "herein otherwise provided for"?

The Constitution does establish various positions in the government which are filled by non-Presidential appointments. The Speaker of the House is chosen by the House of Representatives -- not the President. But these positions are not "officers of the United States." The Speaker of the House is an officer of the House of Representatives, not an "officer of the United States." Senators and Representatives are similarly not "officers of the United States." They work for their constituents, not for the federal government, and the Constitution does not describe them as "officers" nor their positions as "offices." (I appreciate there is some controversy around this particular point; for now, I am keeping things simple.)

One Possible Solution

Possibly, the phrase could be read to refer to the President and Vice-President themselves -- that is, a President has no authority to appoint his vice-president, nor to appoint an "acting president" while he goes on vacation. Textually, this works. The President can appoint "all the officers of the United States" except for those officers whose "appointments are otherwise provided for" -- namely, the President and Vice-President, who must be selected through a national election described elsewhere in the Constitution. This may be the answer, and if so, it would offer strong textual evidence that the President and Vice-President are "officers of the United States," a proposition which has become surprisingly controversial in recent years. While I think the President and Vice-President are "officers," I tend to think it is strange to read the Appointments Clause in this way. The Constitution provides a detailed and elaborate system for choosing the President and Vice-President. It seems unlikely the drafters would feel the need to clarify that a President's authority to appoint officers does not extend to the appointment of these two elected positions.

The Historical Explanation

Realistically, I think it is likely the drafters of the Appointments Clause had something else in mind. To understand what, we need to retrace the drafting process at the Constitutional Convention.

The draft constitution that emerged from the Committee of Detail on August 6, 1787 contains substantially similar language to the Appointments Clause in our final Constitution. It states the President, "shall appoint officers in all cases not otherwise provided for by this Constitution." Here, the phrase made sense. In this draft of the constitution, ambassadors and Supreme Court justices -- that is, certain "officers of the United States" -- were to be appointed by the Senate, and the Treasury Secretary was to be appointed by Congress. The President's appointment authority did not extend to these positions -- so the President could "appoint" all the "officers" who were "not otherwise provided for." The drafters wanted it to be crystal clear that, while the President had broad authority to appoint officers, he could not appoint officers where the Constitution gave that power to another branch of the government.

The delegates deliberated for five weeks, and on September 12, 1787, the Convention's Committee of Style prepared another draft of the Constitution. As of the September 12 draft, much like our final Constitution, the President appointed officers, "whose Appointments are not herein otherwise provided for." And as of the September 12 draft constitution, the Treasury Secretary -- undoubtedly, an "officer of the United States" -- was, still, to be chosen by Congress. The draft provided:

"The Congress may by joint ballot appoint a treasurer."

All other officers, in the September 12 draft, were appointed by the President.

It made sense that the Framers vested appointment of the Treasury Secretary -- who handled the nation's cash -- in Congress. This was an intentional restraint on President's power. A "joint ballot" would mean Congress voted together, as a single house. Importantly, this would circumvent any requirement that the President approve (known as "Presentment," which is only required for matters on which each House must vote). The provision implies the President does not nominate anyone for the post, again a way to diffuse power. The framers feared that, "the person who nominates will always in reality appoint."

So, within the draft prepared by the Committee of Style, the Appointments Clause continues to read smoothly. The President appoints all officers of the United States, "whose appointments are not herein otherwise provided for" -- meaning, the President appoints all the officers other than the Treasury Secretary, whose appointment is vested in Congress. That was one office the President could not appoint, and framers wanted that explicitly stated.

Closing remarks, reading the final Constitution, and signatures, were on September 17, 1787. On the second-to-last day of deliberations -- September 14, 1787 -- by 8-3 vote, the convention struck the phrase that the Treasury Secretary would be selected by Congress. The President would appoint the Treasurer, just like all the other officers. But while the delegates struck the provision in Article 1 of the Constitution granting Congress the authority to appoint a Treasurer, the delegates did not review the rest of the Constitution to edit and reconcile other provisions which had referred to that (now deleted) clause. The language in the Appointments Clause in Article 2 which referenced "appointments... otherwise provided for" in the Constitution -- that is, referencing the appointment of a Treasurer by Congress -- remained untouched.

So, in the final version of the Constitution, the Appointments Clause links to a provision which actually does not exist -- a provision which was deleted at the last minute. If so, there is a (slight) drafting mistake in the Constitution of the United States.

The Takeaway

On the question of how to interpret the Appointments Clause, hardcore constitutional textualists should take the view that the President's authority to appoint, "officers of the United States, whose appointments are not herein otherwise provided for," means the President can appoint officers other than an "acting president" or Vice-President themselves -- that those are the "officers of the United States" who the President cannot appoint. This would lead to the textual conclusion that the President and Vice-President are themselves "officers of the United States." This became a remarkably controversial issue in recent years, and was even presented to the Supreme Court during the Trump Presidency. I hope to have more to say about that in a future post.

Personally, I am altogether skeptical of this sort of extreme constitutional textualism. Scholars who divine deep and consequential meanings in every constitutional turn of phrase are too rigid in their approach generally -- including with respect to the 18th century drafting process. To me, it is hardly remarkable that the Constitution contains slight discrepancies in its various clauses or use of language. This would be the natural product of a drafting process among delegates who used language differently, who were drafting a novel document, and who had competing interests in advancing their conflicting views about the document's meaning -- all of which was conceived and consummated in less than 120 days over the summer of 1787. What is surprising are not the document's discrepancies, but to the contrary, that the Constitution reads as smoothly and coherently as it does. For that, we are indebted to the drafters.

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