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New Article: The President is Not Violating the Foreign Emoluments Clause

New Article: The President is Not Violating the Foreign Emoluments Clause

After a year of delays,* an article on how the Constitution uses the word “emoluments” has finally appeared. The study indirectly absolves President Trump of claims that he is violating the Constitution by receiving profits from enterprises whose customers include foreign governments.

The article is called The Original Meaning of “Emoluments” in the Constitution, and it was published by Georgia Law Review. It was the result of impartial research: Unlike most articles of the type, it was not designed to serve as a brief for or against a particular political or litigation position.

The article reports that during the Founding Era, the word “emolument” carried several different meanings—some wider, some narrower. The wider meanings included business profits and the narrower meanings did not.  To determine which usage the Constitution adopts, the article examines the text and the surrounding history.

The surrounding history includes proceedings in the Continental and Confederation Congress, how the word “emolument” was used in other important American documents (such as state constitutions), and the debates over the Constitution. Perhaps most importantly, the surrounding history included a massive then-current reform movement in both Britain and America. The reform movement was designed to shift public employee compensation away from certain fees and other fringe benefits and toward fixed salaries. The Constitution’s three anti-emoluments provisions all are typical of such reforms, which targeted almost entirely fees and other fringe benefits, not unrelated profits from outside enterprises.

You can access the article here.

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* Delays of this kind are associated generally with law reviews (legal journals). The reasons and effects will be topics of a future article.

Correcting Hillary Clinton’s Misconceptions About the Movement for Constitutional Amendments

Correcting Hillary Clinton’s Misconceptions About the Movement for Constitutional Amendments

In recent months, Hillary Clinton has made numerous inaccurate statements about those Americans working for what the Constitution calls a “convention for proposing amendments.” Because of Clinton’s national standing, her claims merit a response.

Under Article V of the Constitution, when two-thirds of the state legislatures (34) pass matching resolutions called “applications,” Congress must call a convention to propose, not enact, constitutional reforms. The idea is to allow Americans, working through their state legislatures, to propose amendments the Washington, DC establishment opposes.

Because of dissatisfaction with the federal government, several campaigns have sprung up favoring corrective amendments. Although they span the political spectrum, collectively they are referred to as the “Article V movement.”

This article lists some of Clinton’s statements and corrects each:

Clinton: “There’s a big move for change coming from the right that I think would be disastrous for our country.”

Correction: Only one of the major Article V campaigns is based primarily on the right. It is the “Convention of States” organization—assuming one defines reducing federal power as solely a “right wing” cause. The other campaigns promote solutions also favored by the center and left. For example, despite recent efforts by establishment politicians to marginalize the campaign for a balanced budget amendment, its cause is broadly bipartisan. Several state legislatures have signed on with unanimous or overwhelming bipartisan votes. Similarly, U.S. Term Limits enjoys broad bipartisan support.

On the left is the WolfPAC organization. It favors campaign finance reform and has the support of several liberal-leaning state legislatures.

It’s important to remember the Constitution established the amendments convention procedure for all Americans, not just for those on any particular side of the political spectrum.

Clinton: “They want radical, ‘pull ’em up by the roots’ change.”

Correction: None of the amendment campaigns—right, center, or left—favors the open-ended convention needed for radical change. All of their model legislative applications severely limit the convention’s scope.

Clinton: “They want to have a constitutional convention to rewrite our Constitution, to make it friendlier to business, to inject religious and ideological elements.”

Correction: The Constitution does not authorize a constitutional convention, and none of the amendments campaigns advocates one. They favor only a limited gathering—what the Constitution calls a “convention for proposing amendments.” This idea is not unique: American history has witnessed several conventions that suggested constitutional amendments, although none of those conventions had formal proposal power.

Moreover, a convention for proposing amendments has no power to “rewrite” the Constitution. As its name indicates, it may only propose amendments. To be effective, any amendment must be approved by three-fourths of the states (38). This formidable requirement ensures that any amendment enjoys support from the overwhelming majority of the American people’s representatives.

Clinton’s comments about business and “religious and ideological elements” are pure fantasy. None of the legislative applications being promoted by the Article V Movement contain anything specifically pertaining to business, religion, or ideology.

Clinton: “So talk about radical change! They are pursuing it, they are funding it, and they are electing people that are either true believers or are willing vehicles for it.”

Correction: Clinton has the funding situation exactly reversed. All the Article V campaigns have budgets ranging from minimal to modest. None has the financial power to elect anyone. By contrast, their leading opponents—such as the Washington, DC pressure groups Common Cause and the Center for Budget and Policy Priorities—enjoy annual budgets in the tens-of-millions.

Clinton: “The right wing, aided and funded by Mercers, Koch brothers, etc. is very serious about calling a constitutional convention.”

Correction: Again, the Article V campaigns are not seeking a “constitutional convention.” They are simply trying to exercise a constitutional right akin to the right to vote.

Furthermore, the Article V movement cuts across ideological lines. Some right-wingers favor it, as do some left-wingers. Other right-wingers oppose it, as do some left-wingers. My constitutional research helped renew the movement, and I’ve been involved with it for over eight years. I’m personally unaware of any Article V funding from either the Mercer or Koch families. Like the overwhelming majority of those involved in the cause, I do most of my work as a volunteer.

Clinton: “Part of their gerrymandering is to control state legislatures, elect Republican governors.

Correction: All the Article V campaigns are nonpartisan. Several draw wide support from both liberals and conservatives. Incidentally, the comment about Republican governors is further evidence that Clinton’s is ignorant of the process: State governors have no role in the Article V process.

Clinton: “If you really get deep into what they’re advocating: limits on the First Amendment, no limits on the Second Amendment, limits on criminal justice.”

Correction: The only Article V campaign favoring changes in the First Amendment is WolfPAC, which is based on the left, not the right. Neither the Second Amendment nor criminal justice are the subjects of any Article V campaign.

Government Shutdown? Maybe for the Best

Government Shutdown? Maybe for the Best

An earlier version of his column appeared in The Hill on February 6, 2018.

Once again, this year we were threatened with a federal government “shutdown.”

Well, for the future this citizen out in the hinterland says, “Bring it on!”

Most of the interrupted functions aren’t really constitutional anyway, and we could do well without them. In fact, we should defund some of them permanently to help close the federal deficit. Most of the affected workers wouldn’t be out of work for long: Right now the private sector is desperate to use more efficiently the kind of skilled people now employed, and sometimes ineptly utilized, by the federal government.

I put the word “shutdown” in quotation marks because it is really a misnomer. Labeling it as such has been a huge rhetorical coup by apologists for unbridled federal power. In fact, it’s just a temporary pause in the otherwise-inexorable growth of federal spending.

Sometimes this pause occurs because members of Congress can’t agree how much to increase expenditures. (They rarely propose reducing them.) Sometimes it happens because they can’t agree on raising the debt limit. The D.C. crowd considers not raising the debt limit particularly disastrous because it actually forces the federal government to balance its budget in the interim.

Now, let’s look at the agencies whose operations may be interrupted in event of a “shutdown.” The list comes courtesy of Keep in mind, however, that the list is misleading because funding for some of their major operations is on statutory auto-pilot — “mandatory spending,” which is D.C.-speak for “we let it continue without renewing it annually.”

For example, even though the Department of Health and Human Services is on the list below, during a “shutdown” it will continue to cut checks for Social Security and for most of ObamaCare.

So, with that caveat in mind, let’s review the list of agencies that may suffer partial closure:

  • Commerce Department, except the National Oceanic and Atmospheric Administration.
  • Department of Education.
  • Department of Energy (except certain safety functions remain open).
  • Environmental Protection Agency.
  • Food and Drug Administration.
  • Department of Health and Human Services.
  • Department of Housing and Urban Development.
  • Department of the Interior (although the Department will not be shutting down the national parks this time).
  • The Internal Revenue Service, except those processing tax returns.
  • The Department of Labor, including Bureau of Labor Statistics.
  • NASA.
  • The National Institute of Health.
  • The Smithsonian.

Retrieve your pocket Constitution. Look through it and identify those functions the Constitution actually authorizes. Then go over the list of “shutdown” agencies again.

The Constitution empowers the federal government to regulate commerce, which encompasses many functions of the Commerce Department and the Food and Drug Administration. The Constitution also authorizes national defense (including, in part, NASA), and administration of the District of Columbia (including, by implication, the Smithsonian).

But otherwise you won’t find much overlap between what the Constitution authorizes and what a shutdown would interrupt. The Constitution contains not a single word about regulating or funding urban development, education, or labor. But it does contain the Ninth and Tenth Amendments, which reserve such matters to the states and the people.

Some agencies subject to closure already are duplicated, or can be duplicated, by the private sector or by interstate compact, rendering federal involvement unnecessary. Others are operations state governments could handle easily.

For example, during the 2013 shutdown, the Department of the Interior announced it was closing Rocky Mountain National Park in Colorado. No problem: Colorado state government kicked in the money necessary to keep the park open, and it stayed open. A few Coloradans began to ask, “Who needs the feds to run the park after all?”

That kind of question is the real threat of a prolonged government shutdown. It is a threat to federal politicians, functionaries, grant recipients, and the complicit segment of the mass media: Americans might come to realize they can get along very nicely without much of the federal bureaucracy. The ease with which Colorado funded Rocky Mountain National Park is a case in point. In fact, it may be the reason the federal government will not be closing the parks this time.

If, unlike me, you really are worried about a government shutdown, then be assured: Congress will not allow it to continue for too long. Otherwise, Americans might discover just how disposable most federal agencies are.

The Poetry in the Constitution’s Preamble

The Poetry in the Constitution’s Preamble

This article first appeared in The American Spectator on Feb. 13, 2018.

The person most responsible for the Constitution’s final form was Gouverneur Morris. The Preamble, which begins with “We the People,” is one of the world’s most recognizable bits of prose — prose that, at least in some ways, approaches poetry.

Morris had been well educated in poetics. At King’s College (now Columbia University), his two favorite subjects were mathematics and Latin. His Latin studies introduced him to VirgilOvid, and other Roman poets, and his writings contain occasional references to Ovid. From studying Shakespeare, Morris learned English prosody as well. As a young man, he sometimes wrote verse himself.

Fortunately, Morris did not essay to render the Constitution in poetry — although at least one modern author has attempted it. Nor is the Preamble technically blank verse. But it certainly was written with meter in mind.

The Preamble can be divided readily into 12 lines grouped into six couplets. I have reproduced them below. The marks beneath each line show how it is scanned. Morris wisely did not try to impose Latin meter on English; his meter is based on the English stress accent.

One can quarrel over the scanning. Pronunciation has changed somewhat since the 18th century, and my daughter Sarah, who draws on far more formal classical training than I, disagrees with me over some details. But the scansion marked below is close enough for present purposes.

Here is the first couplet:

We the People of the United States,
  –  .  .  .  .  –  –
in order to form a more perfect Union,
. –  .  . – .  . –  – .

Both lines contain the same number of syllables: ten. Both contain the metrical foot called a molossus, which consists of three heavy syllables (— — —). Poets typically use molossi to convey grandeur.

The couplet is further tied together by alliteration. The “p” sound appears in “People” and “perfect,” and voiced and unvoiced “f” letters appear in “of,” “form,” and “perfect.” The second line also contains a soft, or semi-rhyme, (ORder … fORm). The open sounds of those two words further serve to convey grandeur.

Here is the second couplet:

establish Justice,
. –  – .
insure domestic Tranquility,
. – .  –  .  .  –  .  .

The meters of these two lines are less similar than the two in the initial couplet, but they are tied together in other ways. Both lines are relatively short compared with those surrounding them. Together, they contain four “s” and two “sh” sounds.

The word “Tranquility” marks the end of both the couplet and of poem’s first third — that is, of its first four lines. “Tranquility” forms a metrical foot called a secundus paeon (. — .  .).

The third couplet is:

provide for the common defence,
. –  .  .  –  .  . –
promote the general Welfare,
.  –  . –  .  .  –  .

These two lines begin with the same syllable: “pro.” Each has the same number of syllables (eight), and their metrical schemes are nearly identical.

Careful readers may observe that this couplet contains one of the few instances in which Morris forgot to capitalize a noun: “defence.”

Here is the fourth couplet:

and secure the Blessings of Liberty
.  .  –  .  –  . .  –  .
to ourselves and our Posterity,
. .  –  .  –  .  –  . .

These two lines share nearly the same number of syllables and a similar metric scheme. Each line features alliteration based on the letter “s.” They end with the near-rhymes “Liberty” and “Posterity.”

Just as “Tranquility” marked the end of the Preamble’s first group of four lines, so “Posterity”—another secundus paeon — signals the end of the second group.

Here is the fifth couplet:

do ordain
. . –
and establish
. . –.

The Preamble can be divided into halves as well as into couplets and thirds. The lines in the middle couplet of the first half (“establish Justice, ensure domestic Tranquility”) are very short. The fifth couplet represents the middle of the second half. Its lines are also very short. In this case, moreover, their metrical schemes are similar.

Finally, we reach the sixth couplet:

this Constitution
.  –  –  –  .
for the United States of America.
. . . –  –  – . .  –  . .

I have scanned each line as containing a molossus. Sarah prefers to read my molassi as cretics (— . —). Either way, the Preamble has returned to its initial grandeur. The last word (“America”) is the secundus paeon denoting the end of the last group of four lines.

My book The Original Constitution points out that Gouverneur Morris inserted other cultural signals in the document. But the metric nature of the Preamble is particularly striking. Americans had prepared many state constitutions and constitutional-style papers before 1787, but Morris’ approach was unique and has served as an inspiration for constitution-makers ever since.

Cuomo’s Claim that capping SALT deductions is unconstitutional is wrong

Cuomo’s Claim that capping SALT deductions is unconstitutional is wrong

This post first appeared in The Hill on January 30, 2018.

Some leading proponents of centralized federal power have caught that ole-time states’-rights religion.

New York Governor Andrew Cuomo, for example, has been a fervid defender of ObamaCare and other congressional programs invading traditional areas of state control. But, he says, Congress violated the rules of federalism when its new tax law capped income tax deductions for state and local taxes paid (SALT deductions).

Are Cuomo and his allies correct? Does the Constitution require Congress to include SALT deductions in its income tax laws?

The Constitution’s actual language does not say so.

Some cite a 1985 speech by the late Senator Daniel Patrick Moynihan (D.-N.Y). arguing for the SALT deduction. But that particular speech is cast in generalities, and does little to address specific constitutional questions.

They also point to Controller v. Wynn, a 2015 case in which the Supreme Court struck down a Maryland law taxing out-of-state income. But that case centered on interstate commerce issues not present in the new tax law.

Still others contend that the original Constitution banned income taxes until the Sixteenth Amendment approved them, and that amendment would not have been approved unless it implicitly required SALT deductions. For several different reasons, however, this argument is extraordinarily weak.

First, its initial premise is wrong: The original Constitution did not ban income taxes. On the contrary, it granted Congress broad authority to impose “direct taxes,” including income taxes. The only restriction was that if Congress imposed a direct tax it had to divide the expected revenues among the states by population. The Sixteenth Amendment eliminated that restriction, but Congress always had enjoyed power to impose an income tax.

Second, cited evidence for the founders’ supposed anti-income tax view actually cuts in the opposite direction. According to one Cuomo ally, “It was feared that the new federal income tax would ‘monopolize’ all of the country’s resources, leaving little money left in state coffers … Alexander Hamilton outlined this precise fear as early as the 1780s, in Federalist Paper No. 31.”

What the writer fails to mention is this fear arose chiefly among the Constitution’s opponents, and that Hamilton “outlined” it only to rebut it. Specifically, Hamilton pointed out that the Constitution tasked the federal government with national defense and internal order—and that because it was impossible to predict how much revenue would be needed for such functions, additional limits would be unworkable.

For better or worse, most of the founders agreed with Hamilton. They repelled efforts to further curtail Congress’s taxing authority.

Finally, there is little basis to the claim that, “the 16th Amendment likely would not have been ratified without SALT deductions in mind.”

When constitutional language is unclear or exact definitions uncertain, courts may clarify the terms by examining common practices and representations considered part of the “ratification bargain.” But the presence of SALT deductions in short-lived tax bills in 1862 or 1894 tells us little about how the ratifiers understood the Sixteenth Amendment decades later. Moreover, on those rare occasions when legislatures or conventions ratify an unclear measure on the basis of particular meanings, they can say so — which, in the case of the Sixteenth Amendment, they apparently did not.

More importantly, the Sixteenth Amendment is not ambiguous or uncertain. It is straightforward and clear: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

Where in this amendment, pray tell, lurks any mandatory SALT deduction?

Opponents of the new tax law are right to be concerned about federal overreaching, but they are barking up the wrong tree. They are inventing a fictional limit on federal authority while ignoring real ones.

For example, when drafting the Affordable Care Act Congress permitted the Senate to insert economic regulations in a tax bill, thereby violating an explicit constitutional rule called the Origination Clause. That violation has not induced Cuomo and his allies to withhold their support. They also have failed to object when Congress ignores other constitutional limits on its powers.

Governor Cuomo and his allies should honor the Constitution’s real restrictions on federal power. When arguing constitutional questions, however, they should not invent non-existent ones.