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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.

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.

Activists Can Spend Their Time Better Than Trying to Resurrect the Long-Dead “Equal Rights Amendment”

Activists Can Spend Their Time Better Than Trying to Resurrect the Long-Dead “Equal Rights Amendment”

Left-of-center activists are prodding state lawmakers to waste public time “ratifying” a constitutional amendment that, by its very terms, is long dead and can no longer be ratified. Earlier this year they even convinced the Nevada legislature to sign on to their campaign.

They should use their time and energy more wisely by campaigning for amendments that are both feasible and would make life better. One such amendment was proposed by James Madison and approved by Congress over two centuries ago — but could still be ratified today.

In 1972, Congress proposed a measure supporters dubbed the “Equal Rights Amendment” (ERA). On its face, the ERA seemed to ensure equality for women. In a burst of enthusiasm, 35 of the necessary 38 state legislatures ratified it.

As public debate continued, however, it became clear the ERA was a poorly-drafted measure that would do little for women’s rights. It would have transferred massive amounts of power away from local governments and elected representatives, handing it instead to lawyers, judges, and bureaucrats. When state legislatures realized this, the ratifications stopped and several states rescinded.As proposed by Congress, the ERA provided that it would become part of the Constitution only if 38 states approved it within seven years — that is, by 1979. When the ratification campaign bogged down, Congress tried to change the rules by extending the deadline to 1982. Not surprisingly, a federal court ruled that Congress could not do that. Although the court’s decree later proved unnecessary — state legislatures weren’t going to ratify such a flawed amendment anyway—the court’s opinion remains one of the most thorough judicial discussions of the amendment procedure.

Of course, even if Congress’s extension had been valid, the ERA still would have expired long ago.

Do activists have any serious legal basis for raising the ERA zombie? Well, no. Their “legal” arguments are based on a 1997 article written as a law student project. As often happens with student projects, the article is so error-ridden that no court is likely to take it seriously.

Activists should spend their time more productively by promoting useful constitutional reforms overwhelmingly favored by the American people — reforms now blocked by an unresponsive Congress. Examples include federal term limits and a balanced budget rule.

Or, if they want to exercise their fascination for the ancient, they could campaign to complete ratification of James Madison’s original first amendment, which Congress proposed in 1789 as part of the Bill of Rights. Although the requisite number of states have never approved it, unlike the ERA, the original first amendment has no ratification deadline.

As proposed by Congress, the measure provided for growth in the House of Representatives along with the growth in population, until such time as:

the number of representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand.

Adopting this amendment today might induce us to convert the U.S. House of Representatives from a council of Washington D.C. politicians into a large assembly citizen-lawmakers — linked to each other electronically, but residing in and representing their local communities. (The Senate would not be affected.) A large House of Representatives would better represent popular opinion and make it much harder for lobbyists and special interests to control Congress.

It would give citizens much better access to Congress than they have now. It would magnify the voices of the women the activists claim to care about.

Not only has modern technology rendered a very large House of Representatives practical, the cause is also politically feasible: In 1992 dedicated citizens secured ratification of Madison’s original second amendment — now in the Constitution as the 27th.

Whether or not activists undertake that project, they should stop wasting public time. Let the decomposed corpse of the ERA rest in peace.

An Amendments Convention is a “Convention of the States”—Here’s the Proof

An Amendments Convention is a “Convention of the States”—Here’s the Proof

Some opponents of holding a convention for proposing amendments to the U.S. Constitution still claim the nature and composition of an amendments convention is a “mystery.”

That claim has not been viable for several years now, but it certainly is no longer viable with the publication of the copious evidence that an amendments convention is simply a convention of the states—a kind of meeting that has happened many times in our history, and whose protocols and composition are well understood.

The Heartland Institute has just published my article, Why a “Convention for Proposing Amendments” is a Convention of the States. It draws together the copious evidence on the subject. You can get it here.