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The Left’s Refusal To Accept Election Results vs. Its Constitutional “Super-Precedent” Theory

The Left’s Refusal To Accept Election Results vs. Its Constitutional “Super-Precedent” Theory

Since Election Day, the stock market has soared. The benchmark Standard and Poor’s 500 index, which reflects the stock price of larger companies, has risen by more than 14 percent. The NASDAQ Composite, which measures a wider sample of stocks, has jumped more than 16 percent.

These stunning results were achieved in less than 100 days. Everyone knows the reason: Investors have laid out hundreds of billions of dollars with the expectation of a more-free-market-oriented Republican president and Congress.

By “investors,” I don’t mean the rich. The vast majority of investments are made on behalf of people of modest means. A single pension fund such as TIAA, which represents public employees, handles more than 10 times the wealth of the richest man in the world (Bill Gates).

This stock market rise is a huge vote of confidence in free-market policies, but it is also a warning. Specifically, it is a warning to those on the left who have abandoned Americans’ post-election honeymoon tradition in an effort to trigger what Mark Levin calls a “silent coup.” If the left is successful in neutering Trump or the GOP Congress, we can expect investors to flee the markets in droves. The result could be economic collapse.

The Super-Precedent Theory

When considering whether to alter direction, it is always wise to consider the extent to which people have relied on current policy. In other contexts, the left purports to understand this. Illustrative is a legal theory liberal academics promote called “super-precedent.”

The theory of super-precedent is the Supreme Court should not overrule certain liberal constitutional cases, even if they were decided incorrectly. This is because people have relied on those cases. Abandoning them would be disruptive.

Promoters of the “super-precedent” theory apply it to cases such as Roe v. Wade, the 1973 decision that upended the abortion laws of all 50 states. They also apply it to the court’s 20th-century constitutional holdings that, on specious constitutional grounds, eroded the Constitution’s limits on federal economic regulation.

Yet few, if any, Supreme Court decisions occasion as much reliance as the results of a national election. If Roe v. Wade were overturned tomorrow, no abortions would be undone. In all probability, no person currently pregnant would be denied an abortion. This is because it would take months, perhaps years, for state legal systems to respond to the change. At most, reversal of Roe v. Wade would affect future pregnancy planning in some states.

Supreme Court cases allowing excessive federal regulation have engendered more reliance than Roe v. Wade, but the amount of reliance can be overstated. In Wickard v. Filburn (1942), the Court misconstrued two clauses of the Constitution to permit direct federal regulation of agriculture. If the Court were to overturn Wickard, it would re-establish some constitutional limits on federal regulation—and many business plans would have to change.


How the Supreme Court Can Minimize Damage When Properly Overturning Erroneous “Super-Precedents”

But the Court has ways to contain or eliminate the damage. One is to phase in the change. In fact, this is precisely what the justices did when they reversed Plessy v. Ferguson (1896), the long-standing precedent that authorized state-sponsored racial segregation.

If, on the other hand, the left is successful in delegitimizing the GOP president and Congress, there would be no way to contain the damage. The free-market policies investors were promised and relied upon would not be forthcoming after all. Investors would flee the stock market in panic. Countless smaller business and personal decisions not recorded in the stock market would be unhinged as well.

No doubt some on the left would be perverse enough to welcome this result. But those who mean well should realize they are playing a very dangerous game. For the good of the country, it’s time for them to stop being spoilsports and accept the election results.

Note: This article was originally published at the RedState blog.

New Article: Is President Trump in Violation of the Foreign Emoluments Clause?

New Article: Is President Trump in Violation of the Foreign Emoluments Clause?

Recent controversy has centered on President Trump’s businesses accepting payments—such as payment for space in the Trump Tower—from foreign governments. Several prominent legal commentators have begun a lawsuit claiming that the president is violating the Constitution’s Foreign Emoluments Clause by accepting “emoluments” from foreign governments.

That Clause, which is Article I, Section 9, Clause 8, provides as follows:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, emolument, Office, or Title of any kind whatever from any King, Prince, or foreign State.

The term “emolument” appears three places in the Constitution. Article I, Section 6, Clause 2 prohibits a member of Congress from being appointed to an office “which shall have been created, or the Emoluments whereof shall have been encreased” during his current congressional term. Article II, Section 1, Clause 7 prohibits the president from accepting any emolument other than his salary from the federal government or from any state. Some argue that President Obama violated that provision by accepting interest payments on government bonds while president.

In a new scholarly article I examine the Constitution’s use of the word “emolument.” I find that during the Founding Era the word often was used in a sense wide enough to cover both Trump’s and Obama’s conduct. However, I also find that there were two common narrower meanings, and that the Constitution adopted one of those. In the Constitution, the term signifies “compensation with financial value, received by reason of public employment.” Thus, neither Trump nor Obama received unconstitutional “emoluments.”

There are at least two other issues concerning the Trump case that the article does not address:

1. Is he covered by the Foreign Emoluments Clause at all? It applies to those holding an “Office . . . under” the United States. There is a respectable view that this particular formulation does not apply to the president, but only to appointed officers. This argument holds that the framers meant to include the president, they used other phrases, such as “officer of the United States.”

2. If a payment from a foreign government is not an emolument, could it still be an unconstitutional “present?” This obviously depends both on the Founders’ understanding and one the circumstances surrounding the payments. I may investigate this question in the near future.

Trump’s Businesses May Not Violate the Emoluments Clause

Trump’s Businesses May Not Violate the Emoluments Clause

Professor Michael Ramsey of the University of San Diego recently pointed out that commentators who claim Donald Trump will violate  the Constitution’s Foreign Emoluments Clause (actually the Foreign Emoluments Subclause) on the day of his inauguration haven’t done their homework. Specifically, they have not sufficiently researched the meaning and scope of the provision. For example, they assume that market-driven payments to Trump’s businesses are “emoluments” within the Constitution’s meaning of the term. It is by no means clear that this is true.

Founding-era records display at least six variations in the meaning of “emolument” in official discourse. The variations differ significantly in their scope. It will take additional research to determine which of them matches the understanding of the Constitution’s ratifiers.

Variations in the Meaning of “Emolument”

Following are the six, each exemplified with a quotation. All the quotations except the last are from the journals of the Continental and Confederation Congresses, where nearly all the framers and leading ratifiers had seen service. The last is from the records of the Constitutional Convention:

*          “Emolument” could mean any advantage or benefit whatsoever, as in “they should be permitted . . . to share in the blessings of peace, and the emoluments of victory and conquest.” This was the broadest usage, and the common dictionary definition.

*          “Emolument” could mean gain that was specifically pecuniary, including gain attached to a particular office and “private emolument”—that is, money from outside sources, such as trade: Examples: “that honor and emolument should naturally follow the fortune of those who have steered the vessel in the storm and brought her safely to port” and “The emoluments of the trade are not a compensation for the expense of donations.”

*          It could mean the compensation—pay and fringe benefits—attached to a particular office, as in “such as his rank entitles him to . . . and without pay or any other emolument whatever.”

*          It could mean the fringe benefits attached to a specific office but not the pay, as in “that his emoluments and one half of his pay be suspended” or “his request for pay cannot be complied with, and that all the emoluments he derives from the United States are to cease” or “he should be allowed the emoluments but not the pay.”

*          It might include items such as living supplies, extra compensation, and reimbursement for expenses, as in “The value of the additional emoluments of forage and subsistence would amount at the rate of thirty six dollars per month . . .”

*          Or it could exclude one or more of these items, as in “the Post-master general make such an allowance to the postmaster  . . . in addition to the emoluments of his office, as may be a reasonable compensation for his extra services” or “[Pennsylvania] President Franklin moved . . . that the executive should receive no salary, stipend or emolument for the devotion of his time to the public services, but that his expenses should be paid.”

How Does This Affect Trump?

The first two definitions are broad enough to include outside commercial transactions. The phrase in the Foreign Emoluments Subclause “of any kind whatever” suggests that the term should be read this way.

The other four variations are all tied to compensation for holding a particular office. Presumably they would include a salary from the French government to an American official for holding his office. But they would exclude payments made to President Washington if the British government happened to buy some of Mount Vernon’s exported tobacco, and they would exclude fair market rents paid at the Trump Tower.

Arguing for one of the definitions tied to office is the fact that the Foreign Emoluments Subclause uses the word as one item in a series. Pointing in the same direction are the Constitution’s other two uses of “emoluments,” both of which are directed at compensation for holding office.

I’m currently researching the Clause—doing the “homework” that others should have. I’ll keep you posted on what I find.

An earlier version of this post first appeared in The Originalism Blog.