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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.

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.

What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 5th in a Series on the Electoral College

What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 5th in a Series on the Electoral College

The previous installment collected founding era evidence on whether presidential electors were to control their own votes. The evidence included dictionary definitions, existing practices, and the records of the Constitutional Convention.

This installment continues the discussion of founding era by collecting material from the public debates on whether to ratify the Constitution. These debates occurred between September 17, 1787, when the Constitution became public, and May 29, 1790, when the 13th state, Rhode Island, ratified. Comments from those debates generally show that the ratifiers understood presidential electors were to exercise their own judgment when voting.

Probably the most-quoted statement from the public debate is from Alexander Hamilton’s Federalist No. 68:

A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. . . . And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

This is an important statement. However, for a number of reasons, we should not over-rely on The Federalist—or on Hamilton, for that matter—when reconstructing how the public understood the Constitution. Fortunately, there is a fair amount of additional evidence.

Some of this material consists of comments stating merely that the electors—rather than anyone else—would decide how to vote. In other words, they assume the electors would remain independent.

For example, Roger Sherman, a delegate at Philadelphia and a supporter of the Constitution, wrote that the president would be “re eligible as often as the electors shall think proper.” An essayist signing his name Civis Rusticus (Latin for “Country Citizen”) wrote that “the president was [chosen] by electors.” The Antifederalist author Centinel asserted that the state legislatures would “nominate the electors who choose the President of the United States.” The Antifederalist Candidus feared “the choice of President by a detached body of electors [as] dangerous and tending to bribery.”

In his second Fabius letter, John Dickinson—also described elector conduct in a way consistent only with free choice:

When these electors meet in their respective states, utterly vain will be the unreasonable suggestions derived for partiality. The electors may throw away their votes, mark, with public disappointment, some person improperly favored by them, or justly revering the duties of their office, dedicate their votes to the best interests of their country.

In Federalist No. 64, John Jay likewise implied elector choice and independence:

The convention . . . have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures . . .  As the select assemblies for choosing the President, as well as the State legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence.

Some participants emphasized that electors would remain independent because the Constitution would protect them from outside influence. At the North Carolina ratifying convention, James Iredell, later a justice of the U.S. Supreme Court, spoke to the issue in a slightly different context:

Nothing is more necessary than to prevent every danger of influence. Had the time of election been different in different states, the electors chosen in one state might have gone from state to state, and conferred with the other electors, and the election might have been thus carried on under undue influence. But by this provision, the electors must meet in the different states on the same day, and cannot confer together. They may not even know who are the electors in the other states. There can be, therefore, no kind of combination. It is probable that the man who is the object of the choice of thirteen different states, the electors in each voting unconnectedly with the rest, must be a person who possesses, in a high degree, the confidence and respect of his country.

Advocates of the Constitution sometimes promoted the Electoral College as representing a viewpoint all its own rather than as reflecting the will of others. Hence Hamilton’s observation in Federalist No. 60:

The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.

Some participants discussed how electors might be appointed—whether by the state legislatures or the people. For example, an essayist styled A Democratic Federalist wrote, “our federal Representatives will be chosen by the votes of the people themselves. The Electors of the President and Vice President of the union may also, by laws of the separate states, be put on the same footing.”

Yet such discussions of appointment were not accompanied by claims that those who made the appointments would dictate the electors’ votes. To be sure, William Davie, another Philadelphia delegate, said at the North Carolina ratifying convention that “The election of the executive is in some measure under the control of the legislatures of the states, the electors being appointed under their direction.” But “in some measure under the control” does not mean “wholly dictate.”

Possibly the closest anyone came to suggesting the legislatures would direct electors’ votes was a comment by Increase Sumner at the Massachusetts ratifying convention: “The President is to be chosen by electors under the regulation of the state legislature.” However, it is unclear what Sumner meant by “regulation.” He could be referring merely to the fact that the legislature would “regulate” how electors were appointed.

For those most part, moreover, participants worded their statements in ways that avoided any suggestions that electors’ votes could be controlled. In arguing for the Constitution, One of the People declared:

By the constitution, the president is to be chosen by ninety-one electors, each having one vote of this number . . . The constitution also admits of the people choosing the electors, so that the electors may be only one remove from the people . . .”

Note how this is phrased: (1) the electors choose the president, (2) the people may choose the electors, and if so (3) the choice of the president will be “only one remove from [not “determined by”] the people.”

At the Massachusetts ratifying convention Thomas Thacher asserted “The President is chosen by the electors, who are appointed by the people.” And in North Carolina Iredell argued that “the President is of a very different nature from a monarch. He is to be chosen by electors appointed by the people.” Again, observe the difference between appointment and choice of the president.

A final point: When crafting the Electoral College, the framers were careful to minimize opportunities for collusion, intrigue, or “influence.” As James Iredell observed in the extract quoted above, one element of the framers’ plan was to allow Congress to appoint a day for appointment of electors and another day for voting. In each case, however, “the Day shall be the same throughout the United States.” Article II, Section 1, Clause 4.

In 2016, the uniform day for the appointment of electors established by Congress was November 8. But Colorado authorities removed an elector and appointed in his alleged successor on December 19—manifestly not the same day as November 8.

Not only did this violate the uniform day rule, but it was a classic example of the kind of political maneuvering the rule was designed to prevent.

What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 4th in a Series on the Electoral College

What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 4th in a Series on the Electoral College

As mentioned in the first installment of this series, litigation has erupted in Colorado over whether a state may dictate the vote of a presidential elector and remove that elector if he opts to vote otherwise. Similarly, a Washington State lawsuit tests a state law that, while recognizing the validity of a vote contrary to an earlier pledge, imposes a $1000 fine on an elector who casts such a vote.

In 1952 the Supreme Court upheld an Alabama law requiring a person seeking office as an elector to pledge to support the nominee of his party.

Laws limiting the discretion of electors are justified as part of the state’s power to “appoint” electors. This justification is not airtight, however, because the appointment of an officer and directing his or her vote are not quite the same thing. For example, the people have power to appoint (elect) members of Congress and other officials. The people are right to expect successful candidates to honor their promises within practical limits. But the people have no constitutional power to direct congressional votes.

Consider also the rules under which Congress, state legislatures, and conventions exercise their constitutional powers in the amendment process. States have repeatedly passed laws attempting to control the actions of those assemblies, but the courts have repeatedly struck them down. The courts’ holdings are consistent with the founders’ understanding of how legislatures and conventions worked: Lawmakers could follow their consciences and convention delegates enjoyed significant discretion within the scope of the convention call. Indeed, if some delegates who had run for their state ratifying conventions as antifederalists had not voted for the Constitution once compromise had been reached, the Constitution would not have been ratified.

As explained below, the evidence suggests that the scope of a presidential elector’s constitutional discretion is even greater than that of a convention delegate.

Before proceeding further, however, let’s dispose of one issue. Some see significance in the fact that the original Constitution was ratified before the rise of national party voting, while the 12th amendment was approved in 1804 after parties became the norm. They suggest, therefore, that the meaning and expectations for elector voting under the 12th amendment might be different from those under the original Constitution.

It is, of course, true that the 12th amendment changed some aspects of the electoral system. But the language relevant to elector discretion charged hardly at all.

The original Constitution provided:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. . . The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.

The 12th amendment did not alter the wording of the first part of this selection, and its replacement for the second part was almost identical to the original: “The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves.”

This near-identity cuts against the idea that there was less elector discretion under the 12th amendment than under the original Constitution. Standard rules of legal interpretation hold that when language does not change, meaning does not change. Party pressures might discipline electors more after 1804 than before, but electors had no more legal obligation to be disciplined after 1804 than before.

It follows that when construing the present constitutional language, we are fully justified in relying on the usual sources employed in construing the original Constitution.

One source of that kind is how contemporaries normally understood words and phrases used in the text.

In both the original and 12th amendment versions, the electors were to vote by ballot. To the founding generation, this invariably meant secret ballot. The whole point of a secret ballot is to hide the elector’s choice so to ensure that choice is free. But free choice is inconsistent with the state telling an elector how to vote.

Another important word in the text is elector. Eighteenth century general dictionaries define an elector as a person who does the choosing. Nathan Bailey’s 1765 dictionary defined an elector as “a chuser.” The first entry for “elector” in the 1785 edition of Samuel Johnson’s dictionary was “He that has a vote in the choice of any officer.” Other dictionaries featured kinred definitions.

Eighteenth century legal dictionaries did not define “elector,” but they did describe “election”—and with even clearer implications. The most popular law dictionary in America, that of Giles Jacob, said of “Election” that it “Is when a man is left to his own free will to take or do one thing or another, which he pleases.” Wording very similar to this appears in other law dictionaries.

Another important source of original meaning are practices of which the founding generation was aware. One was the election of members of Parliament in Scotland. Members were not directly elected, as in England. Rather, they were elected by “commissioners” selected for that purpose by voters or local governments.

A Scottish commissioner could be required to take an oath prescribed by parliamentary statute. By that oath he swore he had not received anything of value—apparently including his position as elector (“Office, Place, Employment”)—in exchange for his vote. In other words, a Scottish elector’s choice was not to be directed by the place that sent him.

Under the 1776 Maryland constitution, the state senate was selected by electors chosen by the voters. Electors were required to swear that they would “elect without favor, affection, partiality, or prejudice, such persons for Senators, as they, in their judgment and conscience, believe best qualified for the office.” Again, public expectation was that electors’ discretion would be unfettered.

The two leading precedents in the English speaking world both reinforced dictionary definitions: Electors were to think for themselves.

Now let’s turn to the Constitutional Convention. A key reason for adopting the Electoral College was to ensure the president’s independence from Congress and the states. Thus, James Wilson, who initially favored direct election of the president, shortly thereafter proposed an electoral college instead. According to Madison’s notes, Wilson “wished to derive not only both branches of the Legislature from the people, without the intervention of the State Legislatures but the Executive also; in order to make them as independent as possible of each other, as well as of the States.”

Obviously, permitting the states to dictate electors’ votes would undercut that policy of independence from the states. This is one reason the convention repeatedly rejected proposals for state officials to choose the president. As Edmund Randolph observed, “A Natl. Executive thus chosen will not be likely to defend with becoming vigilance & firmness the national rights agst. State encroachments.”

Next time: The evidence on elector discretion from the debates over the Constitution’s ratification.