Academic journal article Harvard Law Review

The Ineligibility Clause's Lost History: Presidential Patronage and Congress, 1787-1850

Academic journal article Harvard Law Review

The Ineligibility Clause's Lost History: Presidential Patronage and Congress, 1787-1850

Article excerpt

Few current constitutional provisions are considered less relevant than the Ineligibility Clause, (1) which renders a member of Congress (MC) ineligible for appointment to any federal civil office that has been created or had its emoluments increased during the MC's elected term. Republican and Democratic administrations, characterizing the clause as incoherent and asserting that the policy behind it was easily evaded by appointment to preexisting office, have restricted the clause to its narrowest, most formalistic meaning. (2) The "Saxbe fix," through which Congress removes an MC's ineligibility by reducing an office's salary, (3) is another example of confining the clause's applicability. Some commentators have even advocated reading the clause out of the Constitution. (4) Labeled "obscure" (5) and "esoteric," (6) the clause has largely disappeared from public debate.

Yet its contemporary irrelevance obscures how significant the Ineligibility Clause once was. During the Republic's first six decades, Presidents, MCs, and commentators debated not whether the clause should be evaded or ignored, but rather whether its prohibition should be expanded to achieve its broader purposes. Designed to preserve the separation of powers, legislative accountability, and MCs' disinterest-edness by inhibiting office hunting, the clause, Justice Story reported, had been deemed an "admirable provision against venality, though not perhaps sufficiently guarded to prevent evasion." (7) Given the evasion made possible by appointments to preexisting offices, leading MCs from all major parties advocated strengthening the clause through broad interpretation or constitutional amendment.

From 1789 to 1850, over thirty amendments were proposed that would have rendered MCs ineligible for all federal civil appointments--including preexisting offices and, under some proposals, even elected offices like the presidency--during their elected terms, and often for an additional period after their terms. Amending the clause to inhibit office hunting was among the era's most salient issues. In his final act as Senator, for example, Andrew Jackson called for such an amendment, without which "corruption will become the order of the day." (8) Emulating his foe, two decades later Henry Clay advocated an amendment to bolster the clause in a last senatorial address. (9) Confronted with a text considered too weak to accomplish its goals, Jackson, Clay, and others sought to strengthen the clause, not ignore it.

Like the Ineligibility Clause itself, this antebellum history has been neglected. (10) Most articles discussing the clause do so only tangentially (11) or mainly in reference to the Saxbe fix. (12) Articles that do address the clause's history tend to view it through the lens of the clause's contemporary insignificance, and therefore contain important misconceptions or omissions about the earlier history. (13) Yet the clause, once lauded in valedictory addresses, invoked religiously, (14) and embraced by statesmen of all persuasions, was not predestined to irrelevance.

This Note attempts to restore the Ineligibility Clause's lost history. Drawing upon congressional debates and records of appointments, it provides a first account of patronage and the Ineligibility Clause in Congress from 1789 to 1850. Although there were major efforts to amend the clause to tighten its gaps, including some that succeeded in the states, none succeeded at the federal level for at least two reasons. First, the perceived connection between office hunting and corruption depended on the perceiver's current political position--those who advocated amendment when out of power embraced appointments of MCs when in power. Second, with the rise of political parties, the notion of checks and balances increasingly developed along party rather than institutional lines. Party politics was seen partly to reduce the need for a broader clause because appointments came to be viewed as promoting the legitimate end of shared ideology, not corruption. …

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