[**Thank you for your willingness to take a look at this very early draft. My intention in this project is to build on some of the themes of “officer” accountability that I touched on in an earlier historical study of the Appointments Clause. By the end of this project, I intend to have mined all of the state ratification debate records. As of this point in the project, I have canvassed only the 600+ pages on the Ratifying Convention in volume 3 of Elliot’s Records. Subsequent drafts of this project will incorporate officer accountability themes from the remaining 8 state records in volumes 2 and 4 of Elliot’s Records. Thank you very much for your feedback and suggestions for further developing the themes in this early draft.]

The Ratifiers’ Theory of Officer Accountability Jennifer Mascott

June 8, 2018 Early Draft: Please do not cite or circulate.

Introduction

This past Term the Supreme Court considered investment advisor Raymond Lucia’s claim that an administrative law judge (ALJ) in the Securities and Exchange Commission (SEC) improperly exercised government authority in his case.1 The stakes were high. The SEC ALJ had imposed a $300,000 fine on Mr. Lucia and barred him from future practice in his securities-related profession. Mr. Lucia contended that the ALJ lacked the constitutional authority to do so because he had not been appointed as an “Officer of the ” pursuant to the Appointments Clause in Article II of the U.S. Constitution. Under the Appointments Clause, any federal official falling within the category “Officers of the United States” must be appointed by the President alone, the President with Senate consent, the head of an Executive Branch department, or a court of law.2 The ALJ originally presiding over Lucia’s case had been hired by staff. In the late twentieth century, the Supreme Court suggested that any federal official exercising “significant authority” constitutes an Article II “officer.” The Court has also indicated that several factors demonstrating an official has “significant

1 See Lucia v. SEC (S.Ct. No. 17-130).

2 U.S. CONST. art. II, § 2, cl. 2.

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authority” include the exercise of discretion in handling significant tasks such as taking depositions or ruling on evidence in agency adjudicative proceedings. The Supreme Court has also explained that an official’s ability to take final governmental action may be indicative of “officer” status.3 But significant evidence suggests that as a historical matter, neither discretion nor final-decisionmaking authority were necessary preconditions for “officer” status as officials as low level as ministerial record-keeping clerks were “officers.”4 The weight of the Founding-era evidence suggests that any federal official carrying out an ongoing statutory duty was an “officer.”5 Both the historical evidence and modern Supreme Court jurisprudence indicate that Appointments Clause restrictions on the selection of officers are intended to ensure electoral accountability in the exercise of power. The idea was that if the selection of officers was restricted to the President or an executive department head, the President or department head would have to take care to pick qualified officers because she would bear the blame if those officials poorly performed.6 But the specter of applying the Appointments Clause requirements of selection by politically accountable officials to agency adjudicators evaluating liberty and property rights has brought two, at least superficially conflicting, governmental accountability ideals to a head. On one hand, if agency adjudicators exercise power within the Executive Branch, perhaps they should be subject to the Article II chain of accountability7 requirements that protect the electorate from abuse of power through their ability to vote out of office the President who directed, supervised, and appointed the problematic officers. On the other hand, if agency adjudicators have influence to strip liberty and property rights, perhaps they should

3 Lower courts disagree on whether the Supreme Court has established final decision-making authority as a necessary, or merely a sufficient, condition for Article II “officer” status. See, e.g., Bandimere v. SEC, 844 F.3d 1168 (10th Cir. 2016); Raymond J. Lucia Cos. v. SEC, 832 F.3d 277 (D.C. Cir. 2016).

4 Jennifer L. Mascott, Who are “Officers of the United States”?, 70 STAN. L. REV. 443, 511-12 (2018).

5 Id. at 450.

6 See, e.g., id. at 447, 558-60 (discussing accountability).

7 See Dina Mishra, An Executive Power Non-delegation Doctrine for the Private Administration of Federal Law, 68 VAND. L. REV. 1509 (2015) (employing this phrase).

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be more independent from politically elected officials, with tenure and selection protections more like those that insulate Article III judges from the political winds.8 Perhaps needless to say, advocates on behalf of Mr. Lucia tended to highlight the applicability of electoral accountability protections to ALJs via the Article II requirement of proper appointment9—and, perhaps, stronger recognition of inherent executive power to impact officer removal.10 Those who supported the SEC’s initial process for staff-level selection of ALJs, in contrast, highlighted the need for independence in determinations impacting individual rights.11 Both the ideals of electoral accountability as well as the need for independence in the protection of individual rights are longstanding constitutional values. Which governs the constitutional questions at play in Lucia? Should both values impact structural protections related to agency adjudicators? Can these values work together? What is their provenance? Previously I published a study on the meaning of the phrase “Officers of the United States” at the time that the Appointments Clause was ratified as part of the Constitution.12 The study examined thousands of late eighteenth century uses of the terms “office(s),” “officer(s),” and “Officers of the United States” and examined the appointments practices of the First Congress. But one set of constitutionally significant Founding-era documents that the study mined just in part was the record of the State ratification debates—looking only at the debates’ contextual references to the phrase “Officers of the United States” rather than the debates’ discussion of governmental office and officers in general.

8 One third approach, not advocated by the litigants in Lucia, would be for the Court to confirm that Appointments Clause requirements apply to executive branch officials like ALJs who exercise significant authority but insist that cases involving vested property and liberty rights be adjudicated directly in Article III courts rather than in an administrative forum. See, e.g., Mascott, Constitutionally Conforming Agency Adjudication, 2 LOY. U. CHI. J. REG. COMPLIANCE 22 (2017). ALJs, appointed via the constitutional mechanisms of Article II, could continue to adjudicate matters involving the distribution of governmental benefits, licensing, and disputes involving governmental revenue collection—all disputes that historically were considered suitable for executive adjudication because they did not involve divesting individuals of liberty and property rights. See, e.g., Lawson; Nelson; McConnell; and Chapman.

9 See, e.g., Petitioner’s brief.

10 See the briefs filed by the Government and amicus CATO.

11 See, e.g., the briefs filed by the Court-appointed amicus, ALJ organizations, and Administrative Law professors.

12 See Mascott, supra note 4.

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Elliot’s Records of the Ratification Debates13 provide a fascinating account of the debate among the individuals that state legislatures selected to deliberate, and ultimately vote on, whether to ratify the new charter of government proposed by the Constitutional Convention in 1787. The close to three volumes of state debate records contain more than 800 references to the terms office(s) and officer(s). Nonetheless the debates spend little time discussing specifically who qualifies as an officer or even how the Appointments Clause itself works in operation. Rather, many of the debates’ references to office and officer refer to elected federal officials rather than subordinate executive officers. Debate discussions focus heavily on mechanisms within the constitutional structure for keeping federal elected officials accountable for working in the best interest of the people and preserving liberty. The heavy focus on accountability for the elected Representatives, Senators, and President as agents of the people is due in large measure to the ratifiers’ understanding that the direct (or indirect) election of officials by the people was the lawful source of those officials’ legitimacy and power—not the expertise or independence of entities that Congress would eventually create to carry out federal policy. The state ratifying conventions’ votes in favor of the Constitution gave the charter its place as governing law. This paper will canvas and explore the ratifiers’ numerous theories for how to maintain officer accountability in this new governmental system that prized individual liberty and property and continued self- governance within the States.14 This analysis is intended to be descriptive, unearthing the ratifiers’ range of views on governmental accountability mechanisms and briefly describing several ways in which contemporary administrative theories of governance may diverge from them. The paper does not intend to normatively debate how closely current administrative practice should hew to the original functionalist goals and purposes of the Constitution as understood by the ratifiers.15

13 The Debates in the Several State Conventions, on the Adoption of the Federal Constitution (Jonathan Elliot ed., Washington, Jonathan Elliot 2d ed. 1836) [hereinafter “Volume 3”]. 14 ***As of this early draft, I have examined only the 600 pages of Virginia debates in volume 3 of Elliot’s Records. This draft incorporates only small portions of discussion from the other eight States’ debate summaries, which span more than 1000 pages throughout volumes 2 and 4 of the Records. Subsequent drafts will incorporate analysis from the complete collection of state ratification debates.

15 Cf., e.g., Gillian E. Metzger, Foreword: 1930s Redux: The Administrative State Under Siege, 131 HARV. L. REV. 1 (2017) (challenging the rigor of claims that current administrative practices are constitutionally illegitimate and positing that many of today’s purported new constitutional battles already were raised, and lost, in the mid-twentieth century); JON D. MICHAELS, CONSTITUTIONAL COUP: PRIVATIZATION’S THREAT TO THE AMERICAN REPUBLIC (2018) (suggesting various proposals for creating a separation of powers within administrative agencies patterned on the constitutional model without tying these exercises of administrative authority directly back to representative elections, see Jennifer Mascott, The Alternative Separation of Powers in Constitutional Coup, 36 YALE J. ON REG.: NOTICE & COMMENT (Mar. 9, 2018), http://yalejreg.com/nc/the-alternative-separation-of-powers-in-constitutional-coup/).

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The ratifiers’ understanding of the mechanisms under the new system that could restrain the federal government from encroaching on liberty or abusing power roughly fall under three broad categories. First, there was the mechanism of electoral accountability—if federal actors abused their power, they would be voted out of office. Second, there were structural mechanisms related to the setup of the federal system—the division of power within the federal government as well as the restricted role of the federal government in relation to the power retained by the States. Third, there were mechanisms that would operate against government officials in their individual capacity, subjecting the officials to certain restraints or potential punishments if they misused their power or engaged in misdeeds. Some of the potential mechanisms within this third category of individual- level accountability are the more well-known and familiar mechanisms of impeachment or expressions of commitment to the oath of office. But the ratifiers also understood there would be in place several additional mechanisms for preventing officer misdeeds that apparently preexisted the Constitution. These are mechanisms are neither required nor prohibited by the Constitution but were utilized and continued as policies by the early Congress. In particular, first, officers handling government finances could enter office only after posting bond to provide security that they would not abscond with government funds. And, second, federal officers were subject to personal liability for state-level common law claims if they acted without proper governmental authority. Regarding the non-immunity of governmental officers in particular, none of the ratifiers suggested that the text of the Constitution spoke one way or the other as to whether Congress should authorize qualified immunity for federal officers facing personal liability claims in state court. Nor is there any indication, in contrast to the holding of Bivens,16 that the ratifiers believed the Constitution itself would provide a source of a claim against a federal officer.17 But at least some of the ratifiers did seem to believe that the ability to bring state-level common law claims against federal officers would be a beneficial complementary mechanism enabling officers to face accountability for bad acts that did not rise to the level of impeachable offenses.18 And, as detailed in Part III, multiple provisions enacted by the First Congress rested on the assumption that federal officers would face potential personal liability in state court for their governmental acts.

16 Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

17 Cf. Volume 3 at 86, 90 (Madison: observing that the Constitution leaves many decisions up to the people’s elected representatives: “Is nothing to be left to future legislation, or must every thing be immutably fixed in the Constitution?”).

18 See infra Part III.

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I. Electoral Accountability The record of remarks from the Virginia Ratifying Convention demonstrate that many ratifiers believed the core protection for individual rights and accountability in the exercise of power was the system of regular elections for those wielding federal authority.19 As an initial matter, the ratifiers believed that the federal government would hold authority only to the extent that “We the People”20 had authorized their representatives to exercise such power.21 even expended the effort, among his many other objections during the ratification process, to contest this phrase in the preamble to the Constitution because he believed that the Constitution should instead reflect that it is the States delegating

19 See, e.g., Volume 3 at 7, 14 (Nicholas: “A short continuance in office, and a return of the officers to the mass of the people, there to depend solely on their former good conduct for their reelection, is of the highest security to public liberty.”); Volume 3 at 293, 298 (Pendleton: “While we are in pursuit of checks, and balances, and proper security in the delegation of power, we ought never to lose sight of the representative character. By this we preserve the great principle of the primary right of power in the people; and should deviations happen from our interest, the spirit of liberty, in future elections, will correct it—a security I esteem far superior to paper bills of rights.”); Volume 3 at 41, 43 (Lee, of Westmoreland, comparing the House of Representatives to the House of Commons’ ability to counteract the power of the king: “[N]o danger can be apprehended that our House of Representatives is not amply able to protect our liberties. I trust that this representation is sufficient to secure our happiness . . . .”); Volume 3 at 125 (Gov. Randolph, discussing representative bodies: “It is an established maxim, that such a body ought to be numerous enough to be well acquainted with the interest of the people, to prevent corruption, and give a chance to men of merit to be elected.”); Volume 3 at 631, 637 (Innes, describing Congress: “[A]s they are eligible and removable by ourselves, there is sufficient responsibility; for where the power of election frequently reverts to the people, and that reversion is unimpeded, there can be no danger.”); Volume 3 at 644, 644 (Zachariah Johnson, describing the representative structure of Congress and the presidency: “I say, when I review all these things, that I plainly see a security of the liberties of this country, to which we may safely trust. Were this government defective in this fundamental principle of representation, it would be so radical that it would admit of no remedy.”).

20 U.S. CONST. (preamble).

21 See, e.g., Volume 3 at 86, 90 (Madison: stating that governmental powers “are in the hands of the people; delegated to their representatives chosen for short terms”); Volume 3 at 23, 28 (Gov. Randolph: “The gentleman then proceeds, and inquires why we assumed the language of ‘We, the people.’ I ask, Why not? The government is for the people; and the misfortune was, that the people had no agency in the government before.”); Volume 3 at 293, 298 (Pendleton: “As a republican, sir, I think that the security of the liberty and happiness of the people, from the highest to the lowest, being the object of government, the people are consequently the fountain of all power. They must, however, delegate it to agents, because, from their number, dispersed situation, and many other circumstances, they cannot exercise it in person. They must therefore, by frequent and certain elections, choose representatives to whom they trust it.”).

6 authority to the federal government—not the people at large, which smacks too much of consolidated national government for Henry’s tastes.22 The ratifiers’ conviction that the federal government would hold only the power that the people delegated to it through the Constitution formed the backbone of their belief that elections were central to the legitimacy and accountability of the new government.23 They also seemed to understand that the power given to each federal entity was commensurate with the degree to which that entity was electorally accountable.24 For instance, statements suggest that, because the House of Representatives constituted the only federal body directly elected by the people under the original Constitution, it was the most essential entity.25 Consequently the House was to wield the most significant policy-making power—evidenced, for example, through its role as the sole initiator of revenue-raising legislation.26 The Senate and the President also were motivated to represent public concerns through elections—but indirectly, as Senators at the time were selected by state

22 See Volume 3 at 21, 22 (Henry: “Who authorized them [the Convention] to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states.”).

23 See Volume 3 at 222, 232 (Marshall: “Is not liberty secure with us, where the people hold all powers in their own hands, and delegate them cautiously, for short periods, to their servants, who are accountable for the smallest mal-administration? Where is the nation that can boast greater security than we do?”).

24 See Volume 3 at 644, 644-45 (Zachariah Johnson: describing the House of Representatives as “the principal branch” and then, upon describing the various direct and indirect methods of representation in the two houses of Congress and the presidency, noting that the “terms of elections are short, and proportionate to the difficulty and magnitude of the objects which they are to act upon”). Cf. Volume 3 at 222, 232-33 (Marshall: explaining that it’s justifiable for States to “give away” power over “the sword and the purse” via the Constitution because the power is really just being transferred to the people’s “representatives, who are accountable for their conduct”).

25 Id. at 7, 8 (Nicholas, regarding Art. 2, § 2, on the House of Representatives: “If this part of the plan now under consideration be materially defective, I will readily agree it ought to be wholly rejected, because representation is the corner-stone on which the whole depends . . . .”).

26 See U.S. CONST. art. I, § 7, cl. 1 (revenue). See also id. at 7, 17 (Nicholas: “Any branch of government that depends on the will of another for supplies of money, must be in a state of subordinate dependence, let it have what other powers it may. Our representatives, in this case, will be perfectly independent, being vested with this power fully. Another source of superiority is the power of impeachment.”). Cf. Volume 3 at 222, 230 (Marshall: “I shall not go to the various checks of the government, but examine whether the immediate representation of the people be well constructed. I conceive its organization to be sufficiently satisfactory to the warmest friend of freedom. No tax can be laid without the consent of the House of Representatives. If there be no impropriety in the mode of electing the representatives, can any danger be apprehended? . . . Have you not as pointed and strong a security as you can possibly have?”).

7 legislatures27 and the President, then as now, was selected via “a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”28 These particular electoral mechanisms ensured that people’s interests were secured via the conduit of their more local- level representatives, the State governments.29 At least one of the ratifiers, , believed that the distribution of powers and varied election procedures among the three federal elected entities would enable the House—the entity of the three closest to the people—to ward off any attempted encroachments from the Senate or the Presidency. Specifically, he characterizes the President as having “limited powers” and “a small revenue.”30 Because, he believed, the Senate lacked its own interests, merely representing the views of the States, and the President’s power was limited in comparison to House impeachment and revenue powers—Nicholas concluded that the House could preserve its own interests in power struggles with the President and Senate.31 This picture again underscores the view at the time of ratification that the federal entity closest to the people had the largest role in legislating federal policies that would bind the rights of the public. The pro- Constitution ratifiers supported this arrangement as protective of individual liberty and continued strong State governance.32

27 U.S. CONST. art. I, § 3 (altered by Amendment XVII.)

28 U.S. CONST. art. II, § 1, cl. 2. See Volume 3 at 485-86 (Gov. Randolph: expressing opposition to ’s idea of forcing a President out of office after one term because of his view that facing reelection would motivate a President to be attentive to the interests of his constituents rather than his own private gain).

29 See, e.g., Volume 3 at 86, 97 (Madison: “This election of one branch of the federal by the state legislatures, secures an absolute dependence of the former on the latter.”); Volume 3 at 17 (Nicholas: describing the Senators as “accountable to the state legislatures, and having no separate interest from them or the people”). 30 Volume 3 at 17.

31 See Volume 3 at 16-18 (Nicholas: I think we may fairly conclude, that, if the House of Commons, in England, have been able to oppose, with success, a powerful hereditary nobility, and an hereditary monarch, with all the appendages of royalty, and immense powers and revenues, our federal House of Representatives will be able to oppose, with success, all attempts by a President, only chosen for four years, by the people, with a small revenue, and limited powers, sufficient only for his own support; and a Senate chosen only for six years, (one third of whom vacate their seats every two years,) accountable to the state legislatures, and having no separate interest from them or the people.”).

32 See, e.g., Volume 3 at 17-18 (Nicholas: contending that the States will be motivated to oppose congressional aggrandizement of power because “every new power given to Congress is taken from the state legislatures”; in his view, the fear of such opposition will check congressional behavior because States have such a powerful influence over the people that State opposition to congressional arrogation of power will cause Congressmen to fear losing out on reelection). See also Bradford R. Clark, The Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321 (2001) (contending that a core

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At the end of the day, the ratifiers as a group acknowledged that no governmental system is perfect.33 And even with all of the constitutional safeguards and limitations in place, some of the more transparent ratifiers admitted that ultimately, the well-being of the country would depend at least in part on the character and good qualities of the individuals serving in office.34 But they believed regular accountability through elections was one of the best safeguards possible to ensure that bad actors would not acquire entrenched authority.35 On numerous occasions ratifier statements explicitly stated that the security against officials making bad, or harmful, decisions in office was that the Representatives would face reelection.36 In these ratifiers’ views, Members of

constitutional protection was federalism, which in turn received critical protection from the Constitution’s separation of powers structure).

33 See, e.g., id. at 135 (Henry: describing government as “a choice among evils”); Volume 3 at 412, 413 (Madison, responding to Patrick Henry’s concerns about militia-related powers: “But it is urged that abuses may happen. How is it possible to answer objections against the possibility of abuses? It must strike every logical reasoner, that these cannot be entirely provided against.”); Volume 3 at 631, 637 (Innes: contending that the ratifiers should not search “in vain” for a perfect constitution and observing that “[t]hough [this Constitution] may have certain defects, yet I doubt whether any system more perfect can be obtained at this time”).

34 See Volume 3 at 222, 231 (Marshall: referring to Members of the House of Representatives as being “chosen for their wisdom, virtue, and integrity” and suggesting that, at least in part, this election on the basis of character will guard against corruption in public office; the idea is that the Members would originally be chosen for their good qualities and then would maintain those qualities to ensure their reelection); Cf., e.g., Volume 3 at 7, 10 (Nicholas: explaining that the “possible abuse here complained of”—i.e., the notion that the House of Representatives might intentionally approve unfair election procedures through its Art. I, § 2 powers—"never can happen as long as the people of the United States are virtuous” because the people would just elect new representatives who were not “wicked enough to harbor so absurd an idea”).

35 See Volume 3 at 231 (Marshall: describing electoral representation in the House as “a mode that secures an impossibility of being corrupted. If they are to be chosen for their wisdom, virtue, and integrity, what inducement have they to infringe on our freedom? We are told that they may abuse their power. Are there strong motives to prompt them to abuse it? Will not such abuse militate against their own interest? . . . Does the representative remain in office for life? . . . To procure their reelection, it will be necessary for them to confer with the people at large . . . .”); Volume 3 at 7, 17 (Nicholas: “The probability of their consulting most scrupulously the interests of their constituents must be self-evident; this probability will result from their biennial elections, whether they wish to be reelected or not. If they wish to be reelected, they will know that on their good conduct alone their reelection will depend . . . .”).

36 Recent scholarship suggests that this mechanism for electoral accountability may no longer be as effective in contemporary federal politics because modern voters are so poorly informed about national affairs that they would not know enough to cast a vote in response to actions taken by their legislators. Cf. ILYA SOMIN, DEMOCRACY AND POLITICAL IGNORANCE: WHY SMALLER GOVERNMENT IS SMARTER (2013). Aside from a potential counterargument that this concern is unduly paternalistic, it is not clear that the mechanism of electoral accountability necessarily depends on voters understanding each and every individual action taken by their legislators. Perhaps electoral accountability remains sufficiently effective

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Congress would not make the terribly oppressive decisions feared by some of the constitutional skeptics (like George Mason and Patrick Henry) simply because such actions might very well cause them to be booted from office.37 For example, contended that Congress would use its direct taxing power only if it was really necessary because “[it] can be of little advantage to those in power to raise money in a manner oppressive to the people.”38 Madison raised similar points about future elections motivating Members to act in the interests of the people when discussing other potentially oppressive governmental measures such as Congress’s ability to raise its own pay39 and alter the States’ manner of conducting elections.40 Henry Lee III responded to concerns that the Constitution did not mandate sufficiently frequent publication of House and Senate Journals by pointing out that, as a practical matter, Congress would have to regularly publish records of its proceedings or risk being thrown out of office by voters who wanted more transparency.41 Francis Corbin noted that the weight of reelection should have particular gravity for members of the House, who have to “return every second year

so long as voters inform themselves enough to cast a vote in response to the general direction of the country or in response to governmental actions on an issue they find particularly important. Further, even if the evidence of voter knowledge were to become so dire that voters truly were unresponsive to any meaningful governmental action at the federal level, the appropriate remedy might simply be to devolve more issues to State and local levels of government without abandoning federal electoral accountability. See id. (explaining that voters have more proportionate influence at smaller levels of government and may be able to become better informed about more localized issues).

37 Volume 3 at 114, 124 (Gov. Randolph: “Will the people reelect the same men to repeat oppressive legislation? Will the people commit suicide against themselves, and discard all those maxims and principles of interest and self preservation which actuate mankind in all their transactions?”).

38 Volume 3 at 95. See also Volume 3 at 230 (Marshall, explaining why the federal power to impose a direct tax will not be too oppressive: “Does any man believe that they would lay the tax without the aid of other information besides their own knowledge, when they know that the very object for which they are elected is to lay the taxes in a judicious and convenient manner? If they wish to retain the affections of the people at large, will they not inform themselves of every circumstance that can throw light on the subject?”; John Marshall also subsequently talks about how reelection prospects will deter Representatives from oppressive taxation, see id.); Volume 3 at 99 (Nicholas on the taxing power).

39 Volume 3 at 370-72.

40 Volume 3 at 407 (discussing U.S. CONST. art. I, § 4).

41 Volume 3 at 176, 185 (Lee, of Westmoreland, regarding U.S. CONST. art. I, § 5, requiring “[e]ach House” to “keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy”: “The honorable gentleman objects to the publication from time to time, as being ambiguous and uncertain. Does not from time to time signify convenient time? . . . For argument sake, say they may postpone the publications of the public accounts to the expiration of every ten year: will their constituents be satisfied with this conduct? Will they not discard them, and elect other men, who will publish the accounts as often as they ought?”).

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to mingle with their fellow-citizens” so why, “in the name of God,” would they ever “make laws to destroy themselves.”42 There were, of course, skeptical ratifiers who believed that the Constitution’s electoral mechanisms were insufficient to prevent abuse of federal power. For example, George Mason thought that congressional districts simply were too large for members, voting in the distant national capital, to remain informed about their constituents’ interests.43 thought that the prospect of being voted out of office was insufficient accountability and that there needed to be more mechanisms for disciplining elected officials who engaged in bad conduct.44 (See infra Part III.) And Patrick Henry held the idiosyncratic view that elected representatives could never be as mindful of personal liberty as a monarch because a hereditary monarchy retains office so indefinitely that the leader’s reputation is more tied to his country’s future than the reputation of an elected representative who serves only a short term.45 But the skeptics concluded, based on their concerns, that less federal power—not more—was the answer to their concerns about insufficient accountability from elections. For example, the key reform proposed by Patrick Henry was the adoption of a Bill of Rights patterned after Virginia’s own protections. The constitutional skeptics did not respond to concerns about elections with willingness to accede power to federal entities that expertly carry out executive, regulatory, and policy-making authority, independent from the accountability of the ballot box. These ratifiers’ concerns simply led them to believe there should be less power at the federal level, not more. Power subject to consequences for misperformance. Not sequestered from the accountability of the people via a vision of independence, which at the time applied just to Article III judges whose independence was secured through salary and tenure protections and the potential check of a jury trial. (See infra Part III.) Implications for Nondelegation?

42 Volume 3 at 417, 417.

43 See Volume 3 at 30, 85, 266. The Constitution set the minimum size of a congressional district at 30,000—except for States with smaller populations which still nonetheless must have one representative. See U.S. CONST. art. I, § 2.

44 See Volume 3 at 220.

45 See, e.g., Volume 3 at 388 (Henry: expressing concern that the “President will not have the same motives of self-love to impel him to favor [the people’s] interests” as the King because the President’s political position is “transient” whereas the “king of England has a more permanent interest. His stock, his family, is to continue in possession of the same emolument. The more flourishing his nation, the more formidable and powerful is he.”).

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Electoral accountability for the legislators is effective as a principal safeguard of individual rights only to the extent that Congress is the entity wielding power in the first place. If the ratifiers believed that direct elections of Representatives in the House would have a significant impact on freedom for individuals and the States, the ratifiers must have believed that the House was key to the imposition of federal power. This may have implications for understanding the degree to which the ratifiers envisioned that Congress would delegate policymaking decisions to the President or her administration. The only way that electoral constraints on Congress would impact taxes, commercial regulations, or other governmental policies would be if Congress were setting the policies and regulations that govern private individuals and businesses.

II. Structural Accountability

In addition to relying on elections as a mechanism for ensuring accountability to public interests, many ratifiers also directly tied the Constitution’s structural provisions to preservation of individual liberties. Structural mechanisms that the ratifiers thought would foster liberty and prosperity included the division of power among distinct federal entities; an overall limitation on federal power that leaves room for States to continue regulating in numerous critical areas; the Incompatibility Clause limitations on dual office-holding; and transparency.

A. Separation of Powers at the Federal Level One key theme of the ratification discussions is the notion that the Constitution’s division of power among three branches (and, further, between two separate Houses within the “principal” branch) would preserve liberty and even encourage federal officer accountability by preventing one set of actors from becoming too powerful at the expense of the others. Following are some representative statements explaining the ratifiers’ understanding of how this accountability constraint would work. Edmund Pendleton, the presiding officer of the Virginia Ratifying Convention, described the constitutional distribution of power among the three federal branches as the following: “a legislature to fix rules, impose sanctions, and point out the punishment of the transgressors of these rules; an executive to watch over officers, and bring them to punishment; a judiciary, to guard the innocent, and fix the guilty, by a fair trial.”46 He contended that every member of the Virginia committee

46 Volume 3 at 34, 39.

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considering ratification would oppose “vest[ing] these three powers in one body.”47 He believed that security for freedom came through elections and that power had to be subdivided among multiple actors at the federal level. Pendleton held these views even though he was not a committed skeptic of the newly proposed strengthened federal government like Patrick Henry. In contrast, Pendleton advocated that “Government must . . . have its complete powers, or be ineffectual.”48 His primary motivation in highlighting the Constitution’s separation of powers was to demonstrate to his fellow Virginians that the Constitution was worthy of ratification as it embodied the separation of powers they believed was an important change from the soon-to-be discarded former Articles of Confederation, which had consolidated the three types of governmental power in Congress.49 Governor Randolph echoed Pendleton’s understanding, decrying the combination of even two of the three types of governmental power within one branch: “Are we not taught by reason, experience, and governmental history, that tyranny is the natural and certain consequence of uniting these two powers [the legislative and executive], or the legislative and judicial powers, exclusively, in the same body? . . . Whenever any two of these three powers are vested in one single body, they must, at one time or other, terminate in the destruction of liberty.”50 Nicholas observed that “[o]ne branch is a check on the other,” with the House of Representatives having “a controlling power over the whole.”51 And Madison assured his fellow delegates that the combination of federalism with the subdivision of federal power into three independent branches would make this new government more secure and protective of liberty “than any government that ever was.”52 For contemporary theorists who believe that the present government should reflect the text and values of the original Constitution, these statements may raise questions about modern federal practice. Numerous federal administrative agencies, for example, are filled with staff exercising legislative, executive, and judicial-like power. Although agencies may have certain separations of functions in

47 Id.

48 Id.

49 See id.

50 See Volume 3 at 83.

51 Volume 3 at 242. See also supra note [] and accompanying text (including Nicholas’s explanation of how the House of Representatives’ powers surpass, in a certain sense, the powers granted to the Senate and the Executive).

52 See Volume 3 at 408-09.

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place within their four walls, (see, e.g., the Administrative Procedure Act’s separation of functions limitations walling off investigators from adjudicators presiding over formal hearings),53 agency staff as a collective whole still exercise all three types of governmental power subject to the authority of the same agency head that must supervise them all.54 Within the original subdivision of the federal branches, the judiciary was to play a unique role. Distinct from the other two branches as the only federal entity not subject to elections, the judiciary was to play an important role in protecting individual rights and restraining the other two branches from exceeding their constitutional limits. For example, Nicholas contended that if Congress ever were to exceed the scope of its enumerated legislative authority, the judiciary could declare the legislative act to be void.55 Pendleton focuses on the independence of the judiciary as strong security for individual rights, noting in particular that whenever “judges are independent, property is secure.”56 The ratifiers’ understanding of judicial independence involves both the “tenure of office and fixing of salary.”57 Adaption of these judicial independence protections to modern practice might require reconsideration of the extent to which non-Article III adjudicators may be involved with stripping individuals of vested property.58 Nowhere do the ratifiers suggest that independence from electoral constraints is a value to be sought after as a safeguard from executive or legislative power. In fact, electoral accountability is to be the key restraining feature of both of those categories of power—in contrast to the exercise of judicial power. So, for example, in the Supreme Court case of Lucia—to the extent that ALJs are exercising power historically characterized as “executive,” the proper mode of accountability is electoral, applied by the Constitution through the mechanism of the Appointments Clause. To the extent that Congress or administrative agencies have authorized ALJs to exercise power that is more traditionally judicial in nature, the kind of independence inherent to Article III is the only adequate accountability constraint. Independence (from the electorate), at least as of the time of the ratification, just did not appear to be a recognized constraint on the exercise of any executive power— adjudicative in nature or otherwise.

53 See 5 U.S.C. § 554.

54 See generally Gary Lawson, Rise and Rise of the Administrative State, HARV. L. REV. (1994).

55 Volume 3 at 443.

56 Volume 3 at 303.

57 See Volume 3 at 517 (Pendleton).

58 See generally Mascott, Constitutionally Conforming Agency Adjudication.

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Further, numerous ratifiers for and against the Constitution spoke of the critical protections for individuals that are secured via a trial by a jury of one’s peers59—a mechanism potentially available during adjudication by Article III courts, not in administrative adjudication. Concerns about the absence of an express civil jury guarantee in the text of the original Constitution culminated in the eventual ratification of the Seventh Amendment in the Bill of Rights.60 The fact that numerous Founders strongly valued the protection of federal jury trials for the security of individual rights suggests the federal government should carefully consider which matters are best reserved for Article III courts—perhaps erring on the side of Article III consideration as a matter of caution when the propriety of administrative adjudication is unclear.

B. Limited Federal Power: Non-Enumerated Powers Remained with the States Perhaps even more important than the subdivision within federal power, the ratifiers also considered the intended limited scope of the national government to be critical to keeping national officers in check. The state governments were to maintain a significant role in governing their constituents, whereas the national government would exercise only those powers delineated in the new Constitution. When constitutional opponents like Patrick Henry61 pleaded for the immediate inclusion of a Bill of Rights—arguing that the national government would have virtually unlimited power without such a protection, ratification proponents hit back hard. They strenuously objected to Henry’s claims that the Constitution included a plethora of implied powers—explaining repeatedly that the Constitution was constructing the national government from the ground up, leaving the States to retain any power that the Constitution did not assign to the federal government. Henry repeatedly protested, pointing to provisions like the prohibition on the suspension of the writ of habeas corpus62 as evidence that the Constitution was written against a background principle of muliple implied powers. Henry’s view was that if the Constitution had to include stipulations like the prohibition on the suspension of the writ or the prohibition on titles of nobility63 (among other

59 See, e.g., Volume 3 at 324 (Henry: “[T]rial by jury is the best appendage of freedom.”); Volume 3 at 562-70 (Grayson); Volume 3 at 67 (Gov. Randolph).

60 Cf. Volume 3 at 327 (Henry: arguing for a supplemental bill of rights to secure the jury trial right, among others).

61 See Volume 3 at 104 (Corbin: describing Henry as the “head of the opposition” to ratification in the Virginia Ratifying Convention).

62 U.S. CONST. art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”).

63 U.S. CONST. art. I, § 9, cl. 8 (“No Title of Nobility shall be granted by the United States . . . .”).

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prohibitions), the Constitution must have inferredly granted general powers from which these prohibitions are an exception.64 Multiple ratifiers debunked Henry’s understanding. They noted that every time the Constitution provided an exception it was not to an inferred power disconnected from textual roots, but rather an exception to a more general power already affirmatively granted by another constitutional provision. For example, the prohibition on suspension of the writ of habeas corpus limited the congressional power to regulate the courts that the Constitution grants in Art. I, section 8 and Article III; the prohibition on titles of nobility—titles that typically “sprang from military and civil offices”—limited federal office-creation authority.65 Ratification proponents supported the Constitution because they were convinced that it contained the structural mechanisms to keep the States in their rightful place over matters of more local concern and to keep American government from overwhelming the fundamental freedoms of its people. According to ratifiers— both for and against the Constitution—several of the freedoms most critical for protection included the freedom of the press, freedom of religion, and the right to a jury trial.66 The ratifiers favoring the Constitution believed it would preserve these rights based on their understanding that the new federal structure left adequate room for States to retain significant power and oppose attempted federal encroachments on their turf.67 As James Madison put it, the people would have security against their congressional representatives through "the general limitation of their power, and the general watchfulness of the States.”68 Francis Corbin echoed this understanding, explaining that “liberty is secured” through the limitation of the new government’s “powers, which are clearly and unequivocally defined, and which are to be exercised by our own representatives freely chosen.”69

C. Federal Officers Subject to the Laws They Enact

64 Cf. Volume 3 at 463-65 (Gov. Randolph: describing Henry’s arguments and responding to them).

65 See Volume 3 at 464-65 (Gov. Randolph: discussing these examples and a more comprehensive list of constitutional exceptions to previously granted textual powers).

66 See, e.g., Volume 3 at 462 (Patrick Henry).

67 See Volume 3 at 18 (Nicholas: contending that state legislatures would prevail in power struggles with the federal government because they remained closer to the people’s affections).

68 Volume 3 at 34, 35.

69 Volume 3 at 109-110.

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Also, multiple ratifiers mentioned that because government officials are subject to the laws they enact, they would have more accountability to enact laws beneficial for the American public.70 For example, Governor Randolph asked rhetorically: “What laws can they make that will not operate on themselves and friends, as well as on the rest of the people?”71 And near the conclusion of the Virginia debates, Zachariah Johnson noted that Representatives would think about the burdens their legislative acts would have on their families as they “will be as liable to be taxed as any other persons in the community.”72 Wilson Nicholas also noted that at the end of their service, federal elected officials will return to become part of “the mass of the people, where they will participate in the disadvantages of bad law.”73

D. Transparency in Congressional Proceedings Similar to values raised by numerous contemporary administrative law scholars,74 a number of the ratifiers identified the important role of transparency in keeping federal elected officials accountable. All of the ratifiers to address transparency agreed on the importance of the public having access to information about the actions of the elected legislature, although several also emphasized that in matters related to war and peace or ongoing treaty negotations confidentiality is critical and must be maintained.75

70 See, e.g., Volume 3 at 7, 17 (Nicholas: observing that Representatives will “return to the mass of the people, where they will participate in the disadvantages of bad laws”).

71 Volume 3 at 114, 124.

72 Volume 3 at 644, 647 (Zachariah Johnson: “Will they forfeit the friendship and confidence of their countrymen, and counteract their own interest? As they will probably have families, they cannot forget them. When one of them sees that Providence has given him a numerous family, he will be averse to lay taxes on his own posterity. They cannot escape them. They will be as liable to be taxed as any other persons in the community. Neither is he sure that he shall enjoy the place again, if he breaks his faith. When I take these things into consideration, I think there is sufficient responsibility.”).

73 Volume 3 at 17.

74 [See, e.g., Jennifer Nou; Eloise Pasachoff; Anne J. O’Connell].

75 See, e.g., Volume 3 at 232-33 (Marshall: positing that secrecy should be used “when necessary,” such as during deliberations on war or other instances “when it would be fatal and pernicious to publish the schemes of government”). Even Patrick Henry admitted that the need for secrecy in confidential matters impacting national security or international negotiations had to be balanced against the importance of transparency in “the common routine of business.” He, with his typical conviction, explained: “Such transactions as relate to military operations or affairs of great consequence, the immediate promulgation of which might defeat the interests of the community, I would not wish to be published, till the end which required their secrecy should have been effected. But to cover with the veil of secrecy the common routine of business, is an abomination in the eyes of every intelligent man, and every friend to his country.” See Volume 3 at 150, 170.

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Even Patrick Henry, one of the ratifiers most concerned that the Constitution failed to require sufficient access to records of federal business, agreed that secrecy was important in matters involving international negotiations and military affairs. But he believed that after the conclusion of negotiations and treaty ratification, the public should have access to knowledge about which Senators supported a treaty.76 He believed this access to information regarding treaty negotiations was critical “to secure some degree of certainty that the public interest shall be consulted in [the treaty’s] formation.”77 Henry’s specific concern for transparency regarding treaty negotiations stemmed from his cycnicism that the Constitution made it too easy for the President and the Senate to collude in forming treaties that might harm the public.78 In particular, he feared that northern Senators may collude with the President to the detriment of Southern interests. The future of rights to navigation on the Mississippi River was one international issue acutely on the minds of the Virginia ratifiers at the time.79 But Henry’s focus on the need for transparency and open records as a potential safeguard against abuses in the treaty power shows that, in general, public access to data was understood as a powerful means of governmental accountability even in the late 1700s. Further, the way in which the ratifiers discussed the ramifications of transparency also underscored their view of the importance of ensuring the locus of power remained with elected officials; transparency was desirable as a means of informing one’s vote. 80 In particular, the ratifiers highlighted the importance of Congress publicizing sufficient records for the public to understand and monitor congressional actions. Cynicism about how frequently the Constitution would mandate publication of congressional journals was one of Patrick Henry’s many points of opposition to the document. He read the Art. I, Section 5 requirement that each House of Congress publish a journal of its proceedings from “time to time” as vacuous, something that could be interpreted to permit Congress to go for years without publishing a record of its business.81 Henry Lee III disputed this claim, contending that “time to time”

76 See Volume 3 at 316.

77 Volume 3 at 316.

78 See Volume 3 at 316.

79 See, e.g., Volume 3 at 316.

80 See Henry at 397-98 (explaining that public access to the records of congressional proceedings is crucial to detect wrongdoing and discern whether to vote members out of office at the next election).

81 Volume 3 at 170 (Henry, regarding publication of congressional journals: “They have the power of keeping them secret as long as they please, for the provision for a periodical publication is too inexplicit and ambiguous to avail any thing. The expression from time to time, as I have more than once observed, admits of any extension. They may carry on the most wicked and pernicious of schemes under the dark

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just meant when convenient and (apparently) agreeing with Henry that public awareness of congressional business was critically important.82 Wilson Nicholas pointed to the additional requirement that congressional votes be recorded upon the request of one-fifth of the members present83 as another important vehicle for transparency. He observed that the publication of the congressional voting record would cause the members to act “as if under the eyes of their constituents.”84

E. Use of State Officers to Perform Federal Functions Interestingly, one other feature that the ratifiers believed might protect individuals and the States from oppressive federal executive officers is the utilization of state officers to carry out federal tasks.85 For example, multiple skeptics of the Constitution expressed great fear about Congress’s authority to impose “direct Taxes” under Article I, Section 2 of the 1788 Constitution. Governor Randolph countered that Congress would enact the least invasive collection structure possible, to remain in the people’s favor leading into the next election cycle.86 Employing state officers to collect federal revenue, rather than hiring and paying the salaries of a whole new set of federal officers, was identified as a potential way to save resources and avoid any oppression that might arise from the creation of unnecessary officer positions or the potential conflict that might occur if both state and federal officers tried to collect revenue from the same person. In contrast to this proposal to avoid creation of an oppressive cadre of federal officers, the First Congress enacted legislation establishing numerous federal

veil of secrecy. The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them. The most iniquitous plots may be carried on against their liberty and happiness.”).

82 See supra note 41.

83 U.S. CONST. art I, § 5, cl. 3 (“[A]nd the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.”).

84 Volume 3 at 18.

85 Cf. Volume 3 at 293, 301 (Pendleton: disputing concerns that the powers of the national government would overwhelm and “destroy[]” state governments by contending that national and state governmental actions would not overlap or conflict with each other and that “[t]he same officers may be used by both governments, which will prevent a number of inconveniences”).

86 See Volume 3 at 117, 127 (Gov. Randolph: “With respect to collectors of the general taxes, I have not the least doubt that Congress will employ the state officers and sheriffs, because it will be economical, and agreeable to the people; a considerable sum will be saved by it. They will employ such men, Mr. Chairman, unless they determine to throw away the public money in an unjustifiable manner. They will never adopt measures which may produce discontent in the country, when they can effect the same purpose by peaceable and satisfactory means.”).

19 customs officials as well as federal internal revenue collectors to administer the 1791 federal whiskey tax. Nonetheless it is telling that a Founding-era leader was so convinced the federal government could enlist state officers to conduct its business that he saw this feature as both a selling point for the Constitution as well as a potential safeguard for liberty. (James Madison similarly envisioned that state officers might collect federal revenue.87) Further, Randolph viewed the use of state sheriffs to collect federal revenue as a protection for the States because it would eliminate any risk of federal tax collectors superseding state officials’ ability to collect state taxes.88

F. Incompatibility Clause Protections, Art. I, Section 6, Clause 289 Several ratifiers also mentioned the the Incompatibility Clause as a significant source of accountability for the federal government.90 The ratifiers, at least in the records of the Virginia debate, discussed this mechanism to a much greater degree than they discussed Appointments Clause restrictions on offices— which received next to no discussion.91 The ratifiers who emphasized support for the incompatibility provisions stated that these protections would preclude Congress from creating offices just to provide themselves an appointed spot to fill.92 Madison advocated for the

87 See THE FEDERALIST No. 45. 88 See Volume 3 at 117, 127.

89 U.S. CONST. art. I, § 6, cl. 2 (“No Senators or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”).

90 Volume 3 at 644, 645 (Zachariah Johnson: listing the Art. I, Section 6, Clause 2 stipulation that “no person holding any office under the United States shall be a member of either branch” as one of the key “securities of the liberties of this country, to which we may safely trust”).

91 But see Volume 3 at 196 (Gov. Randolph: explaining his opposition to an anticipated amendment calling for the President to have a council advising him on appointments; Randolph believes an advisory appointments council would be “injurious to the executive” by either impeding him in the exercise of his authority or “impair[ing] his responsibility,” enabling him to escape accountability for poor choices).

92 The incompatibility and ineligibility protections in the Constitution prohibit congressmen from finishing out their elected term in civil offices that were created, or given a salary increase, during the congressman’s elected term. The provisions also preclude Members and Senators from serving simultaneously in Congress and in a “civil Office under the Authority of the United States”). U.S. CONST. art. I, § 6, cl. 2.

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Constitution’s Incompatibility Clause as a compromise that would preclude Members from being improperly motivated to bring about the “great danger [of] creating new offices.” (Opposition to the overwhelming “swarms of officers” sent by the British to “harass our people, and eat out their substance” was listed in the Declaration of Independence as one of the many motivations underlying the move to independence.) Madison described the incompatibility clause protections as a compromise: strong enough to deter Members from corruptly creating new unnecessary offices but sufficiently restrained to enable former Members to serve in appointed offices once their elected term concludes, putting them on the same footing as the rest of the general public.93

III. Individual Accountability One tool for individualized accountability expressly discussed in the Constitution is the House’s power to impeach “civil Officers of the United States,” subject to conviction and removal by the Senate.94 But the ratifiers disagreed about the extent to which impeachment, as opposed to alternative means of disciplinary consequences, should be applied to lower-level federal executive officers.95 Edmund Pendleton referenced removal, or at least oversight, by the President as one certain means of bringing accountability to executive officers.96 Further, during the North Carolina debates, there is extensive discussion revealing an expectation that the preexisting practice of bringing common law suits against officers would continue under the Constitution. Specifically, several ratifier statements indicate an expectation that federal officers could face personal liability for common law claims in state court on the ground of misdeeds performed while carrying out their governmental duties. For example, Joseph Taylor expressed concern about impeachment of rank- and-file executive officers as the key means of accountability to protect the public

93 See Volume 3 at 370. See also id. (Nicholas: also supporting the compromise).

94 See U.S. CONST. art. II, § 4.

95 The ratifiers expressed some disagreement about the requisite level of seriousness for misdeeds to merit the high bar of impeachment. Compare, e.g., Volume 4 at 36 (Davie: contending that the impeachment power does not reach petty acts but just the higher-impact “cases under the Constitution”), with Volume 4 at 36-37 (Spaight: observing that the impeachment power extends to less significant officers such as revenue collectors, even if the more minor acts of wrongdoing committed by such officers are more appropriately addressed through common law claims than impeachment).

96 See Volume 3 at 35, 39 (Pendleton: describing one of the President’s core roles as “to watch over officers, and bring them to punishment”).

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against wrongdoing.97 He was troubled by the idea that individuals wronged by federal collectors and “gatherers of taxes” might “think it too great a distance to go to the seat of federal government to get redress, and would therefore be injured with impunity.”98 Even if the wronged individual were able to travel to Congress to urge impeachment proceedings, Taylor expressed concern that the Members would fail to follow through on bringing charges. He thought that people sufficiently important to have been chosen as federal officers may also be sufficiently well- connected to know their local congressmen, making those representatives unwilling to impeach their cronies.99 Consequently Taylor envisioned no reasonable “mode of redress.”100 Archibald Maclaine retorted that all federal officers, including collectors, “will be bound to act according to law” and likely will “be obliged to give security for their conduct”; therefore, they would be disinclined to intentionally oppress the public.101 But if, nonetheless, such officers followed improper instructions or engaged in misbehavior during the course of performing their duties, citizens harmed by their behavior “would have redress in the ordinary courts of common law.”102 Similar to Maclaine, Richard Dobbs Spaight also observed “that it was very certain and clear that, if any man was injured by an officer of the United States, he could get redress by a suit at law”; impeachment was by no means the only available mechanism for acquiring redress for acts by a federal officer.103 James Iredell, too, agreed “it is evident that an officer may be tried by a court of common law.”104 There were some ratifiers who disagreed with this analysis. Mr. Taylor understood the Constitution’s reference to the House having the “sole Power of Impeachment”105 as an indication that impeachment was the only avenue for contesting oppressive acts by federal officers.106 And Governor Johnston believed

97 See Volume 4 at 45-46.

98 Volume 4 at 45.

99 See Volume 4 at 46.

100 Volume 4 at 46.

101 Volume 4 at 47 (Maclaine).

102 Volume 4 at 47 (Maclaine).

103 See Volume 4 at 36-37.

104 Volume 4 at 37.

105 U.S. CONST. art I., § 4.

106 See Volume 4 at 36.

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that “men who were in very high offices could not be come at by the ordinary course of justice” but had to be challenged by impeachment alone.107 During the First Congress, however, it became clear that under the new federal system, litigants would continue to be able to file common-law claims against federal officials for wrongdoing in the course of their duties. Building on the backdrop of this ability to sue federal officers in state court, Congress enacted several provisions addressing the personal liability of various deputy officials and the principals to whom they reported.108 For example, Congress provided that in the event a customs collector died or became unable to perfom his duty, his duties would “devolve of his deputy . . . (for whose conduct the estate of such disabled or deceased collector shall be liable).”109 Similarly, federal marshals “had to assume personal liability for the misdeeds of their deputies” just as federal customs officials answered for their deputies’ wrongdoing.110 Further, before entering office, marshals had to post bond to secure the “faithful performance” of him and his deputies.111 As Jerry Mashaw observed in Creating the Administrative Constitution, “Federalist practice turns . . . contemporary understandings inside out. Actions were personal, against the individual; damages were a normal remedy, and office-holding carried no special immunity from suit.”112 One additional example cited by Mashaw is that Congress believed “a common law action would lie [against customs collectors] for any improper seizure or excessive duties charged.” But collectors could rely on the relevant statutory authority as a defense.113 One additional early mechanism for officer accountability that might seem surprising today is that federal officials responsible for handling government revenue had to post bond prior to entering federal office. During the Virginia ratification debates, Patrick Henry invokes this mechanism as routine pre- constitutional practice. He explained that to hinder government officials from “escaping with public money, . . . bond and security are always taken on occasions

107 Volume 4 at 37.

108 See also Mascott, supra note XX, at 517-21 regarding Founding-era common law liability.

109 § 8, 1 Stat. 155 (1790).

110 See Mascott, supra note XX, at 519; § 27, 1 Stat. 87 (1789).

111 See § 27, 1 Stat. 87 (1789).

112 Id. at 76.

113 Id. at 36-38.

23 where men are intrusted with collection of it; and these can follow them, and be sued for and recovered in another state, or wherever they may escape to.”114 Numerous federal officers in positions established by the First Congress had to post quite sizeable bonds to enter office. For example, the federal Treasurer, whose duty was to receive, keep, and disburse federal revenue, had to post a $150,000 bond “with sufficient sureties, to be approved by the Secretary of the Treasury and Comptroller,” prior to entering office.115 Customs officials including collectors, naval officers, and surveyors also had to “give bond with one or more sufficient sureties, to be approved of by the comptroller . . . conditioned for the true and faithful discharge of the duties of [their] office.”116 Congress stipulated in depth the precise amount of bond each officer had to provide, depending upon the type and location of his office. The collector in Philadelphia had to post bond of $60,000, whereas the collectors in smaller ports like Plymouth and New Haven had to post just $5,000.117 Federal court clerks had to “give bond, with sufficient sureties . . . in the sum of two thousand dollars, faithfully to discharge the duties of [their] office, and seasonably to record the decrees, judgments and determinations of the court of which [they were] clerk.”118 Commissioners involved in the government’s debt repayment also had to post bond.119 Marshals had to post bond of $20,000 to secure the performance of themselves and their deputies whose “‘defaults or misfeasances in office’ were considered breaches of the condition of the bond originally given by the marshal.”120 (The marshal’s estate, in turn, could recover from the deputy.)121 The bond enabled the United States to recover if a “marshal or his deputy commit[ted] a msfeasance in office to the injury of the United States.”122 The Judiciary Act required the bond of

114 Volume 3 at 583.

115 § 4, 1 Stat. 66 (1789).

116 § 28, 1 Stat. 44 (1789).

117 Id.

118 § 7, 1 Stat. 76 (1789).

119 § 12, 1 Stat. 142 (1790).

120 Mascott, supra note XX, at 519.

121 Id.

122 Id.

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$20,000 because marshals handled the funds of the courts”; marshals often relied on friends and local business to help them cover portions of the cost of the bond.123

IV. Conclusion

123 Id. (internal quotation omitted).

25