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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.

Where the Constitution’s Word “Convention” Came From

Where the Constitution’s Word “Convention” Came From

“The Congress . . . shall call a Convention for proposing Amendments, which, in either Case, shall be valid . . . when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof . . . ” U.S. Constitution, Article V

“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”                                 U.S. Constitution, Article VII

The late Phyllis Schlafly, when opposing a convention for proposing amendments, repeatedly likened it to the Republican and Democratic National Conventions. The idea, apparently, was to conjure up images of the chaotic mob scenes we have seen on television.

By so doing, Schlafly committed the common fallacy of anachronism: reading into history or a historical text the meanings and values of another time. The most common kind of anachronism is transferring a modern notion into a time or text when things were quite different—as if a scriptwriter for an old Western movie had John Wayne check his smart phone.

Anachronism can lead to grotesque distortion of the truth: In fact, a convention for proposing amendments is almost as different from a national party convention as the eye of a person is from the eye of a hurricane.

The Constitution uses the term convention three times. It appears twice in Article V and once in Article VII (the ratification provision). The “convention for proposing amendments” refers to an interstate gathering. The other two are assemblies within individual states.

We know from prior and subsequent practice how these conventions are chosen. The in-state gatherings consist of delegates directly elected by the people in pre-set geographical districts. The interstate gathering is a diplomatic gathering of representatives of the state legislatures of the kind called a “convention of the states.”

Schlafly did her best to deny that a convention for proposing amendments is a “convention of the states.” But the evidence is both uncontradicted and overwhelming, and has been confirmed by the U.S. Supreme Court. Myths to the contrary were promoted by a disinformation campaign fostered in academic literature and the press during the 1960s, ‘70s, and ‘80s by establishment liberals who opposed amendments to reduce federal power.

Prior to and during the Founding Era, Americans struggled with what to call ad hoc meetings of these kinds. They were not legislatures, because they were temporary and selected outside the usual legislative procedures. So Americans dubbed them with three different words: congress, committee, and convention.

Congress derives from Latin. It means “a walking together.” Before 1775, it referred to a diplomatic meeting of delegations from different governments. Thus, it was a natural term for a conclave among colonies or states. There was a 1754 Albany Congress, a 1765 Stamp Act Congress, the First Continental Congress (1774), and so forth. New York created a “provincial congress” that administered affairs after the colonial legislature was disbanded and until Independence was declared. The name congress reflected the fact that delegates were elected by towns or counties.

Beginning in 1775 the Second Continental Congress became a quasi-permanent legislative body. In 1781 it was succeeded by the Confederation Congress and in 1789 by the Federal Congress. Application of “congress” to the federal legislature discouraged people from applying it to other assemblies.

A small convention of states sometimes was called a committee. (This term, also, is Latin: the verb committere means to commit to, entrust to.) Further, the word could mean a delegation sent to a convention of states. But these “committees” were easy to confuse with committees within other assemblies, as in “the convention’s rules committee” or “the ways and means committee of the legislature.”

Convention (from the Latin convenire, to come together) originally signified only a meeting. However, “convention” became the name of a policy-making body in Scottish Presbyterian practice, and during the constitutional crises of 1660 and 1689 the English called their emergency assemblies “Convention Parliaments.” In the latter year, Americans began to apply the word to temporary “congresses” and to emergency assemblies.

Thus, throughout much of the 18th century, Americans might call the same kind of gathering by several different words. After Independence was declared but before election of the state legislature under the new state constitution, New York was governed by a “Convention of Representatives.” Beginning in January, 1788, the state convention consisted of members of the new state legislature, which had not yet been formally convened.

To add to the confusion, the identical assembly might be referred to by several names. The records of the New York Provincial Congress show it addressing the Continental Congress as the “continental convention” and the Continental Congress addressing the Provincial Congress as the “provincial convention.”

Fortunately, by the time the Constitution was written, this verbal confusion had been pretty much sorted out.  Temporary in-state conclaves increasingly were called conventions. Interstate meetings were nearly always called “conventions” rather than committees or congresses.

That’s why the framers selected the word “convention” rather than some other term for insertion in Articles V and VII.

Rob Natelson’s Research Again Relied on by a Supreme Court Justice

Rob Natelson’s Research Again Relied on by a Supreme Court Justice

On November 27, 2017 the Supreme Court denied certiorari (review) of a lower court decision in Upstate Citizens for Equality v. United States. Justice Clarence Thomas issued a dissenting opinion in which he argued that his colleagues should have taken the case. Justice Thomas twice cited (i.e., explicitly relied on) Rob’s 2008 research article on the Indian Commerce Clause.

These two citations mark the 18th and 19th times since 2013 that Supreme Court justices have cited Rob’s articles. (The citations appeared in 6 different cases.) Besides Justice Thomas, Rob’s articles have been relied on by the late Antonin Scalia and by Chief Justice Roberts.

The Constitution’s Indian Commerce Clause reads “The Congress shall have Power . . . to regulate Commerce . . . with the Indian tribes.” Congress, with the support of the courts, claims those words give Congress “plenary” (unlimited) authority to govern Indian affairs without participation by the states—and even without participation by the President-and-Senate acting under the Treaty Power.

Justice Thomas has long doubted that this is the correct reading of the Indian Commerce Clause, and Rob’s research, published in the 2008 article, showed convincingly that Justice Thomas was right to be skeptical. The article was entitled The Original  Understanding of the Indian Commerce Clause, and it is available here.

In the Upstate Citizens case, the Secretary of the Interior, acting under a congressional statute supposedly authorized by the Indian Commerce Clause, seized jurisdiction over 13,000 acres in central New York State. The effect was to largely muscle out state and local authorities and to damage private citizens. Suing to overturn this action were citizens, a civic organization, and a local government.

The plaintiffs lost in the lower tribunals. The U.S. Court of Appeals also cited Rob’s article, but deemed itself bound by case precedent to uphold the government’s action. It was the latter decision the U.S. Supreme Court declined to review.

The result in Upstate Citizens suggests that even with the addition of Justices Alito and Gorsuch, Justice Thomas remains the only consistent originalist on the court.