Balkinization  

Tuesday, December 02, 2008

Is Hillary Clinton Unconstitutional?

Larry Tribe

My recent book, "The Invisible Constitution" (Oxford University Press 2008), argues that much of what we both do and should regard as the United States Constitution is neither expressed by, nor plausibly inferable from, the document's text. The book develops six models -- geometric, geodesic, global, geological, gravitational, and gyroscopic -- that are meant to display the principal ways of constructing constitutional principles from the relevant textual, structural, and historical materials. But I am careful to concede that, when the text itself unambiguously answers a constitutional question, that answer cannot be overriden by extra-textual considerations.


Some have suggested that the appointment of Hillary Clinton to be Secretary of State offers an ideal test case for those who, like me, purport to be textualists when the written word leaves no room for argument. The claim they make is that the Emoluments Clause unambiguously precludes the appointment of any "Senator or Representative . . . , during the Time for which [s]he was elected, . . . to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time . . . . ," a prohibition that those who advocate this view assert manifestly covers the appointment of Senator Hillary Clinton inasmuch as the salary fixed for the Office of Secretary of State was indeed increased by an Executive Order promulgated in January 2008, during the "Time for which [s]he was elected."


It might be supposed that this issue is, as the saying goes, purely "academic" inasmuch as no-one is likely to have standing to challenge Senator Clinton's appointment even if one were to concede its unconstitutionality. See, e.g., Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974)(finding no citizen standing to press a claim that the Incompatability Clause bars federal legislators from holding offices in the reserve armed forces). But if it were indeed the case that the appointment of Senator Clinton to the Secretary of State's post offends the Constitution, the fact that no court would be in a position to say so can hardly satisfy the constitutional conscience of a chief executive as dedicated to the Constitution as President-elect Obama, who reveres the rule of law as something more than the sum total of judicially enforceable restraints on government power. In "The Invisible Constitution," I emphasize the importance of separating the question of what a court would do to enforce a particular constitutional command from the question of what the content of that command is. I know that president-elect Obama shares the view that the two are not coterminous. For a constitutional scholar and teacher who will, on January 20, 2009, unreservedly take an oath "faithfully [to] execute the Office of President of the United States" and, to "the best of [his] Ability, preserve, protect and defend the Constitution of the United States," it cannot suffice that the institutional limits of the Article III Judicial Branch would let him get away with a violation of that oath. Happily, however, the Emoluments Clause is not quite the formalistic trap that those who deem Senator Clinton's appointment unconstitutional would have us believe.

Past Presidents have confronted this very problem on numerous occasions, as with the appointment of Senator Philander Knox as Secretary of State by President Taft in 1909, the appointment of Senator William Saxbe as Attorney General by President Nixon in 1973, the appointment of Senator Edmund Muskie as Secretary of State by President Carter in 1980, and the appointment of Senator Lloyd Bentsen as Secretary of the Treasury by President Clinton in 1993. In each instance, the constitutional "fix" for what would otherwise have been an insurmountable Emoluments Clause obstacle took the form of a congressional repeal of the pay raise for the Cabinet office in question, restoring the "emoluments" for that office to the level that had obtained prior to the election of the relevant Senator.


The technique has unfortunately come to be known as the "Saxbe fix" by virtue of its hotly-debated use by President Richard M. Nixon to put his friend William Saxbe of Ohio in the Attorney General's seat during the Watergate scandal. I say "unfortunately" because the cultural and political hangover of that scandal can all too easily rub off on the mechanism identified by this name. Even the word "fix" carries a needlessly pejorative taint. Nor does the provenance of this device avoid casting a shadow over its validity. Robert Bork, an otherwise distinguished former Yale Law School professor and D.C. Circuit Court judge and a Supreme Court nominee whose path to that post was obstructed in no small part by his role in the infamous Saturday Night Massacre, was serving as Acting Attorney General at the time of the Saxbe nomination. He defended the proposed "Saxbe fix" by invoking historical precedent and focusing on the anti-self-dealing aims of the constitutional prohibition in question, aims that he argued were amply satisfied once the salary of the relevant office had been rolled back by statute.


The principal opponents of Judge Bork's constitutional position were Senator Robert Byrd, New York Times editorialist Anthony Lewis, and then-professor Stephen G. Breyer. As matters unfolded, the legislation reducing the salary of the Attorney General's office to which Saxbe aspired passed with but ten dissenting votes, the dissenters resting entirely on the Constitution. Although the statute Congress enacted contained an expedited judicial review provision, it was never challenged in court; indeed, no such challenge has ever been launched, and none is likely to be.


It appears that every presidential administration after that of Richard Nixon has deemed the Saxbe fix sufficient with the sole exception of the Reagan administration. President Reagan's Department of Justice, in a still-unreleased OLC opinion, concluded that nominating Senator Orin Hatch to the Supreme Court vacancy created by Justice Powell's resignation would be unconstitutional even if the salary of the office were to be reduced. The seat that might otherwise have gone to Senator Hatch instead went to Justice Anthony M. Kennedy, and the rest, as they say, is history.


I find myself in the curious position of agreeing, at least in result, with the opinion of then Acting Attorney General Robert Bork on this matter and disagreeing with the opinion of my then colleague and friend (and now Justice) Stephen G. Breyer and my friend Tony Lewis . The reason, quite simply, is that the text of the Emoluments Clause, while capable of a reading that would make salary increases incurable by rollbacks of the sort historically employed to address the difficulty, does not demand that reading either as a linguistic matter or as an historical matter, much less as a functional matter.


Linguistically, the reference to any civil office "the Emoluments whereof shall have been encreased" during the time for which the appointed lawmaker was elected need not be understood as encompassing every office for which the statutory salary had at one time been increased even though a subsequent enactment, signed into law before the contested appointment takes effect, has negated that increase. The fact that the clause uses the past participle, "have been encreased," hardly means that its backward-looking focus cannot take into account downward salary movements that fully negate earlier increases.


Then-Professor Stephen Breyer, in his Nov. 28, 1973 letter to Senator Robert Byrd, conceded that he was not offering "an expert opinion" and had "not researched the question" but, with that proviso, nonetheless opined that any pay raise enacted for a given office by Congress would automatically signal an augmentation of the status and prestige attached to the office in question -- an augmentation that undoing the pay raise could not negate, given the odds that a future Congress would restore the increased salary of the office once the new appointee had departed. Because "there seems no way that the present Congress could disable the future Congress from voting the pay increase," Breyer argued in his letter, rescinding a prior pay increase cannot suffice. The analysis has an ingenuity characteristic of Justice Breyer, but it seems to me to have more ingenuity than force. The focus of the Clause is on tangible emoluments, not on intangible prestige. To reason as Breyer did in his letter is to make salary increases irreversible for purposes of appointing members of Congress to positions in the Executive Branch even when an office for which the salary has at one point been increased is later demoted in significance and compensation for reasons wholly unrelated to the desire to appoint a particular Senator or Representative -- a consequence that seems to me to transmute time's arrow from a principle of thermodynamics into an iron rule of politics.


Omar Khayam's "moving finger" that "writes and, having writ, moves on," need not control our reading of what I continue to regard as genuinely ambiguous constitutional text. The contrary argument, most fully developed in John O'Connor, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89 (1995), makes a perfectly decent grammatical case for its position but is anything but dispositive. Nor is O'Connor's further argument -- to the effect that the Saxbe fix undermines a secondary purpose of the Emoluments Clause (to wit: its purpose to "limit[] the size, importance, and reach of the federal bureaucracy") -- at all persuasive, although it certainly merits consideration. Where, as in this instance, the indisputably primary purpose of the Clause (to wit: its anti-corruption, anti-self-dealing purpose) points to what has become the historically conventional reading, only constitutional perversity would be advanced by treating the Emoluments Clause as an insurmountable bar to the Clinton appointment.


To be sure, early practice under the Constitution was less forgiving on this score. President George Washington withdrew the nomination of William Patterson of New Jersey to be an associate justice of the Supreme Court because Patterson had been a Senator at the time the office was created. And an 1882 Attorney General opinion held that former Senator Kirkwood could not be appointed to a tariff commission established during the term for which he had been elected to the Senate. Attorney General Brewster wrote: "It is unnecessary to consider the question of the policy which occasioned this constitutional prohibition. I must be controlled exclusively by the positive terms of the provision of the Constitution." He deemed the language to be "precise and clear," making the "rule . . . absolute, as expressed in the terms of the Constitution." But that approach to constitutional exegesis, which proceeds on the premise that language may be ripped from its purposes even in a transparently purposive document and which treats as "clear" that which a bit of worry readily exposes as anything but, seems to me profoundly antithetical to the hoary maxim that it is, after all, "a constitution we are expounding." That maxim, I hasten to add, is no less applicable to the visible constitutional text than it is to what I have called the "invisible" Constitution, the Constitution about which we may reason but whose words we cannot find in the document.


Somewhat troublesome for the point of view I espouse here is the absence of any constitutional proviso for annulling what would otherwise be a violation of the Emoluments Clause by decreasing a salary hike at some later time. Not all constitutional silences speak loudly, but this one at least whispers a word of caution, given other constitutional provisions that expressly allow waivers or fixes for limits on office-holding. For example, Article I, Sec.9, Cl.8, providing that "no Person holding any Office of Profit or Trust under [the United States] 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," includes within its text the escape clause referring to congressional consent. And the Fourteenth Amendment, Sec.3, prohibiting officeholding by anyone who ever "engaged in insurrection or rebellion" against the United States or gave "aid or comfort to the enemies thereof," concludes with its own escape clause: "But Congress may by a vote of two-thirds of each House, remove such disability." One could certainly argue that the absence of any similar escape clause renders the "Saxbe fix" extra-constitutional. But the central aim of the Emoluments Clause -- to limit opportunities for self-dealing -- would make the kind of escape clause required here singularly peculiar. Such a clause would presumably have taken the form of language adding to the words "shall have been encreased during such time" the words "unless said Emoluments shall subsequently have been decreased by at least an equivalent amount," a proviso quite different in structure and purpose from those referenced above. Thus this is not one of those instances in which the sounds of silence speak with sufficient clarity to overcome the thrust of a purposive analysis.


I am, finally, influenced by the fact that the salary increase at issue here was created not by any enactment for which Senator Clinton voted or on which she had any opportunity to vote. Rather, that increase was created by a statute enacted well before Hillary Clinton was elected to the Senate. My understanding is that the 1990s cost-of-living statute in question, 5 U.S.C. Sec. 5303, automatically increases the salaries for a number of federal offices, including that of Secretary of State, provided the President does not certify that the increase would be inappropriate. That an Executive Order issued in January 2008 failed to make a finding of inappropriateness hardly makes it the case that the Secretary of State's salary was "encreased" this year -- only that an all-but-automatic increase put in place before Senator Clinton arrived on the scene was permitted to go into effect. The focus of the Emoluments Clause, as indicated by its parallel reference to "any civil Office . . . which shall have been created," is to the creative exercise of affirmative governmental authority during the period in question. The absence of any reference in the Clause to which particular agent acted to cause the increase may well mean that it would be no defense to an otherwise good Emoluments Clause objection that the Senator in question had not voted on, or had even voted against, the measure that operated to increase the salary of the office to which that Senator aspired. But that absence of a reference to agency should not, I submit, be construed to make it a matter of indifference that the relevant decision was plainly taken before the "Time for which [Senator Clinton] was elected" and not "during [that] Time."


My conclusion is, therefore, that Secretary of State Hillary Clinton would not be unconstitutional. Cf. Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907 (1994).

Laurence H. Tribe

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Comments:

This comment has been removed by the author.
 

Interesting. If the raise in salary is =/< the rate of inflation, has there been any "encrease" at all? Are we talking real dollars?
 

This comment has been removed by the author.
 

I was under the impression (arrived at after 2 minutes of contemplation) that the clause only applied if a sitting senator simultaneously held an appointed office. It seems like that would mirror the inverse prohibition in the second half of the Section. And if that were in fact the case, then there would be no harm as long as the Senator resigned prior to taking her new office.
 

Great post, but "geometric, geodesic, global, geological, gravitational, and gyroscopic?" Are you trying to make it hard to distinguish them?
 

"Senator or Representative . . . , during the Time for which [s]he was elected, . . . to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time . . . . ,"

This is a deliberate misquotation. The constitution does not have any "[s]he" text in it at all. In this case, it reads: "during the Time for which he was elected". I suggest that Senator Clinton is exempt from the prohibition given in the section on the basis of her gender.
 

Larry Koenigsberg said:

In this case, it reads: "during the Time for which he was elected". I suggest that Senator Clinton is exempt from the prohibition given in the section on the basis of her gender.

Either that, or she is constitutionally ineligible for the job at all.

Has there ever been a court case that hinged on the fact that the Constitution assumes that office holders will be male?
 

In the politically correct newspeak with which I am occasionally forced to grapple one comes across linguistic monstrosities such as "s/he" and "chairperson".

Sad to say, the trend continues unabated as witness this statement from the Leader of the UK House of Commons on 8 March 2007:

"For many years the drafting of primary legislation has relied on section 6 of the Interpretation Act 1978, under which words referring to the masculine gender include the feminine. In practice this means that male pronouns are used on their own in contexts where a reference to women and men is intended, and also that words such as chairman are used for offices capable of being held by either gender. Many believe that this practice tends to reinforce historic gender stereotypes and presents an obstacle to clearer understanding for those unfamiliar with the convention.

I have worked with colleagues in Government to secure agreement, that it would be right, where practicable, to avoid this practice in future and, accordingly, Parliamentary Counsel has been asked to adopt gender-neutral drafting.

From the beginning of next Session, Government Bills will take a form which achieves gender-neutral drafting so far as it is practicable, at no more than a reasonable cost to brevity or intelligibility. This policy already applies to tax law rewrite Bills and is consistent with the practice in many other jurisdictions in the English-speaking world.

The Government recognise that, in practice, Parliamentary Counsel will need to adopt a flexible approach to this change (for example, in at least some of the cases where existing legislation originally drafted in the former style is being amended).

I am grateful to my hon. Friend the Parliamentary Under-Secretary of State, Department for Communities and Local Government (Meg Munn MP) for raising this matter with me."


Ugh! I can't wait to see what will be "the reasonable cost to brevity or intelligibility". It's not as if parliamentary drafting were not obscure enough already!
 

Congratulations, the ideal test case came up, and you failed miserably. "is capable of a reading..." Yeah, right, only if you're trying to circumvent it.
 

What if instead of Hillary Clinton President Elect Obama were to designate John Kerry to serve as his Secretary of State (or to any other Cabinet position?)? Would the fact that he was serving in the Senate at the time of the 1990s vote suggest that his appointment might be unconstitutional? If so, might that fit Charles Dickins' "The law is a ass"? Whether the Constitution is "Lost,""Invisible," or just plain hiding, how does "originalism" resolve this? As for lack of standing to challenge, should we all be required to sit down?
 

Before reading what the rest of my community here has to say, I'll try to put my own thoughts in order after reading Professor Tribe's post.

First, simply as a limbering exercise, I ask myself, "What if it were Cheney?" Well, I certainly would want to find a way to keep Dick Cheney out of the Secretary of State spot, and if we stipulate hypothetical circumstances such that the current question applied to him, what would I conclude?

If the pay raise isn't in effect at the time the appointment comes into effect then there is no conflict. It doesn't matter that it went up, it must stay up. If it comes down, no violation. I couldn't in good faith argue that "well, it went up, and that's all that matters", not even to keep a thug like Cheney out of the spot. Think of it as the plain meaning of the words. Plain meanings are rarely nonsensical. On the contrary, plain meaning is based quite literally on common sense, that is, the sense of the words which is common to readers. In this case the common sense reading is "raise reduced, no harm, no foul" rather than "neener-neener, it went up!" Odd that the plain meaning originalists seem to be having such a hard time with this one.

Now to see what y'all have written.
 

@Brett, you seem to be of the "neener-neener" persuasion. Do you seriously contend the language unarguably disallows removing the obstacle by removing the emolument? Do you rest your case solely on the "shall have been" analysis? If so, are you willing to post your CV so we can assess your training in linguistics and determine what weight to give your opinion?
 

I had never heard about the Hatch nom being torpedoed for this reason. All I can say is, Thank God for pedants in the Reagan OLC!
 

Great post, but "geometric, geodesic, global, geological, gravitational, and gyroscopic?" Are you trying to make it hard to distinguish them?

I agree. What's to be gained here by being cute?
 

Pat,

Can't you imagine the delight in constructing such a list? Is there no place for such delights in academic work? I doubt Professor Tribe would proffer such a system for, say, jury instructions. But for academic work, why not? Puts me in mind of the Watson (or was it Crick?) quote, "I knew it was true because it was beautiful".

Sure, that kind of stuff has gone out of style in the Rush/Hannity era, but some of us like to think an international, interracial, intellectual president-elect heralds a return to respect for smarts.
 

"Do you rest your case solely on the "shall have been" analysis? "

Yeah. Congressional delusions of omnipotence aside, you can't retroactively edit history. If it went up, it continues to have gone up, even if it got taken back down again.

"If so, are you willing to post your CV so we can assess your training in linguistics and determine what weight to give your opinion?"

Well, I DID get a 780 on the verbal portion of the SAT before they started re-norming it. But my chief qualification here is being fluent in English and not giving a damn whether any particular person can serve in any particular post, so I don't have any reason to PRETEND the language means other than what it says.

Sometimes the law is an ass. But it's still the law.
 

@Brett,

Looks like I struck a nerve, and maybe the bit about your CV was a low blow. I apologize.

It remains that you have not manifested any reason to accept your contention that "shall have been" unarguably precludes a possible roll-back.
 

Brett, the question isn't whether the Saxbe fix is an attempt to circumvent the Constitution (it clearly is) but whether this particular provision permits this particular circumvention.

For instance, we know that the police can circumvent the warrant requirement (contained in the text) of the Fourth Amendment by obtaining consent for a warrantless search. However, longstanding precedent-- which I doubt you disagree with-- holds that such consensual searches are either outside the scope of the Fourth Amendment or are categorically "reasonable" and thus permitted.

In this case, the question is whether this particular circumvention (lowering the salary back down) is permitted by the Constitution. Perhaps it isn't, but I haven't seen anything close to a convincing argument yet.
 

Well, I DID get a 780 on the verbal portion of the SAT before they started re-norming it. But my chief qualification here is being fluent in English and not giving a damn whether any particular person can serve in any particular post, so I don't have any reason to PRETEND the language means other than what it says.

Where in the Constitution does it say that it is to be interpreted under the plain meaning rule?
 

I forgot to add that I'm assuming Brett's interpretation of the "plain meaning" of the Emoluments Clause for purposes of argument here.
 

But for academic work, why not?

As long as your categories and concepts are valid, there's no particular reason why not. At the moment that cuteness trumps clarity, however, I would argue that the concepts risk being distorted--if not in the presentation itself, then certainly in the minds of the reader/listener.

Of course, maybe I've just become jaded by the deconstructionists... :)
 

"For instance, we know that the police can circumvent the warrant requirement (contained in the text) of the Fourth Amendment by obtaining consent for a warrantless search."

That's not a circumvention, the 4th amendment lays out what's required to get a warrant, it doesn't say that you have to have a warrant to enter somebody's home. Now, if a judge were to hand out signed warrants, and let the police fill out the particulars, THAT would be a circumvention.
 

That's not a circumvention, the 4th amendment lays out what's required to get a warrant, it doesn't say that you have to have a warrant to enter somebody's home. Now, if a judge were to hand out signed warrants, and let the police fill out the particulars, THAT would be a circumvention.

Wow, Brett. Just wow.

So you think 200+ years of Fourth Amendment jurisprudence that says that the Fourth Amendment implicitly requires a warrant to enter a private home except in exigent circumstances is all wrongly decided???????????????

I realize, Brett, that it is possible for the courts to get things wrong for a long time. I agree with you, for instance, on the misinterpretation of the commerce clause in Wickard v. Filburn and Raich. But when you are CONSTANTLY arguing that Supreme Courts filled with brilliant lawyers and assisted by clerks from the top of the class of the top law schools are getting the basic meaning of numerous constitutional provisions wrong, it must, MUST occur to you that maybe they are getting it right and you are getting it wrong?

Just asking.
 

Ok, my last post was perhaps too cute. Let's talk about interpretation more specifically.

We have to begin by recognizing that the Constitution does not contain within it any rule of interpretation. There's no clause which tells us how to give meaning to any phrase, nor how to supply missing items (such as the power of the President to fire officers or the ability to create an air force). This means that we need to look outside the Constitution for our rules of interpretation.

The plain meaning rule seems like a natural place to begin, though it's not the only alternative. Just for example, we could interpet the Constitution metaphorically, which is what the Catholic Church does with certain Biblical passages.

The truth is, that pretty much everyone begins with the plain meaning rule. For all that textualists like to stroke their own integrity, the simple fact is that every single Justice we've ever had begins analysis with the plain meaning rule. There's no virtue to it peculiar to textualists or originalists.

It's what happens next which is where all the action is. Putting aside what happens when we disagree about the meaning of the text (or when we agree that it's ambiguous), the plain meaning rule has exceptions. One example is that courts refuse to apply the "plain meaning" when doing so leads to absurdity. Another is the maxim I quoted above about not applying a rule when doing so is irrelevant to the purpose of the rule.

It seems clear to me from Brett's posts that he refuses even to consider exceptions such as these. The basis for that refusal is hard to discern, though. We only got to the plain meaning rule by going outside the four corners of the Constitution. Once we do that, there's no obvious stopping place. In particular, when we make use of an accepted common law rule of construction like the plain meaning rule, there's no obvious reason why we should not simultaneously make use of exceptions to that rule.

But it goes even further, of course. Once we go outside the Constitution, there's no logical reason to stop with the plain meaning rule and it's correlates; we might as well go on to ALL the common law rules. And, in fact, that's what the Court does. It's why Constitutional law is, ultimately, determined in a common law process.
 

Vincent Smith
English 103
12/3/08


Part II:Contribute to One Blog
{50 Points}

Title of Blog:Is Hillary Clinton Unconstitutional by. Larry Tribe.


Response: After reading the blog on Hillary Clinton Unconstitutional by. Larry Tribe.
It allowed me to recognize the Power and Detailed Information of the U.S. Constitution and how it's very specific in The Emolunents Clause about Senators and Representatives in U.S. Congress not be able to be elected to any civil Office under the Authority of the United States of America. This blog shows the American People and how the Presidential Administration of Barack Obama haven't been following the U.S.Constitution that there suppose to swear to uphold as President of the United States of America. This appointment has violated that clause and has made the appointment of Secretary of State Sen. Hillary Rodham Clinton as a Cabinet Member of the Obama Administration appointment Unconstitutional.

So, the Obama Administration has violated the U.S. Constitutional and they are under Investigation for being an Unconstitutional Administration.This article speaks truth of the U.S. Constitution and how it has to be followed line by line that's why I chose this blog to comment about.
 

PMS_Chicago: "...At the moment that cuteness trumps clarity,..."

I think we agree on gilding lillies. But I'm taken with the alliterative string of categories and quite looking forward to getting my head around the professor's notions. Your assessment may well be completely valid, but it felt, to me, like a knee jerk, like we had internalized the general anti-intellectualism of the age so completely that such a system was deemed guilty of "cute" before being tried. Coming from one of the brightest chaps I know it was all the more distressing.
 

Mark Field makes an excellent point:

"This means that we need to look outside the Constitution for our rules of interpretation."

Because of a minor setback, I have not as yet completed Richard A. Primus' "When Should Original Meanings Matter?" (107 Mich. L. R. 165) (also available via SSRN). Perhaps in a day or so I'll complete it. So far it's very interesting.

While some rely upon their versions of simplistic black-letter-law originalism, there are too many grey areas. "Keep it simple, stupid" may apply to some things in life, but not constitutional interpretation. Maybe we are all out of step at times.

Here's the Abstract:

"Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on- should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decision making."
 

Shag from Brookline:

Here's the Abstract:

"Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on- should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decision making."


This misses the point. "Legislating from the bench" and "activist judges" are all-purpose cudgels to be used to rally the faithful and perform the necessary task of daemonising the opposition whose views (and morals) are held in disdain. As such, these cudgels are appropriate tools to use at any time regardless of the actual legal circumstances and particularly at such times as when there are no other tools in the box.

Cheers,
 

Your assessment may well be completely valid, but it felt, to me, like a knee jerk, like we had internalized the general anti-intellectualism of the age so completely that such a system was deemed guilty of "cute" before being tried.

Fair enough, although I disagree with the idea that accusing someone of being overly cute is necessarily anti-intellectual. I think one can be anti-bullshit without being anti-intellectual, and I feel certain you agree.

I'll put Tribe's book on my to-read list and I'll give it a fair shake. I warn you though: if "geodesic" ends up being a gloss for a maximum efficiency or Occam's razor model, I will cry "cute" to the high heavens. :)

And I still reserve the right to question how such a practice influences the ability to communicate one's idea to a larger audience. Obviously, the "6 Gs mnemonic" is critical to curbing underage drinking, being a good Baptist, being happy, fundraising, and planning a restaurant.

However, I have to say that mnemonics like "put eggs on my plate please, Homer" have always worked better for me than a list of things that start with the same letter. Take that, AAA...
 

Professor Tribe

I think that your resolution of this constitutional conundrum is plausible, but no more than that. As with many legal questions, it matters how you frame the issue. Asking whether the text is ambiguous seems like the wrong question because it is difficult to imagine a clearer or more unambiguous expression of the prohibition contained in the text of the Emoluments Clause: “No Senator or Representative shall, during the time for which he was elected, be appointed to any Civil Office . . . the Emoluments whereof shall have been encreased during such time.”

A better question would be whether the so-called “Saxbe fix” allows the President and Congress to appoint someone who would otherwise be ineligible under this unambiguous Constitutional provision. It is true, as you say, that this fix arguably allows the appointment to be squared with the literal words of the text. However, the same would be true if the legislative fix reduced the salary on the day before the appointment and restored it on the day after. In the latter case, one would have to say that the literalist argument is nothing more than an attempt to dodge the plain and unambiguous meaning of the constitutional prohibition (akin to arguing that Hillary Clinton is exempt from the Emoluments Clause because she is not a “he”). Thus, supporters of the Saxbe fix can take, at most, limited comfort from the literalist argument.

Of course, it is arguable that the Saxbe fix does not work even in literalist terms. The prohibition applies when the “Emoluments . . . shall have been encreased during [the time for which the Member was elected],” not when the Emoluments on the date of appointment “shall have been encreased” in comparison to the Emoluments on the date that the congressional term began. Thus, opponents of the Saxbe fix can plausibly argue that the appointment still contravenes the literal text of the constitutional provision or, put another way, that their literalism is more literal than that of Saxbe fix supporters.

It also seems to me that the Saxbe fix does not completely satisfy the purposes of the Emoluments Clause. True, it eliminates the possibility that a Member of Congress might vote for an executive pay raise in the hope that he or she would obtain the benefit of that pay raise during the remaining portion of his or her term. But that seems to be an unduly narrow formulation of the constitutional purpose. If this were the only purpose, the Framers would simply have provided that the Member could not receive the benefit of the increased emoluments for the remainder of the congressional term. The fact that they disqualified the Member from being appointed at all suggests a broader purpose.

As John O’Connor demonstrates in his law review article, the reason that the Emoluments Clause did not simply limit the emoluments that a Member could receive is likely that such a provision would have been unacceptable to the Anti-Federalists, who saw the Clause as a disincentive to the expansion of government. They would have preferred that Members of Congress be barred from holding any executive offices for the duration of their terms (and possibly a period afterwards). However, the Convention accepted Madison’s compromise that limited the disqualification to offices that were created or had their emoluments increased during the congressional term of the Member. From the standpoint of the Anti-Federalists, this compromise still had the advantage of discouraging the increase of salaries and thereby the expansion of government in general. Had the Clause been re-written to allow Members to be appointed without the increased emoluments, it would have been significantly worse from the Anti-Federalist perspective.

Whether or not the Anti-Federalist view is seen as the “primary purpose” of the Emoluments Clause, it explains why the Emoluments Clause is structured as a disqualification, rather than a limitation on emoluments. Therefore, it seems to me the best interpretation of the Emoluments Clause would not allow the Saxbe fix.

Of course, there is substantial congressional precedent in support of the Saxbe fix and it is arguable that such precedent should be respected by Congress if the President should decide to nominate someone who would otherwise be ineligible under the Clause. It also may be argued that the question is close enough, for the reasons you give, that the President should not be greatly faulted if he chooses to go that route.

You, however, make the claim that President-elect Obama will hold himself to a higher standard (presumably than some former occupants of the presidency) due to the fact that he has a “constitutional conscience” that “reveres the rule of law as something more than the sum total of judicially enforceable restraints on government power.” I take it that this claim means that President-elect Obama will adhere to constitutional or legal limitations even when it is inconvenient for him and when there is no outside force (political or judicial) compelling him to do so. If this is so, should not President-elect Obama, like President Reagan, err on the side of the Framers and decline to nominate someone whose appointment would likely (or, if you prefer, possibly) violate the Constitution?
 

It also seems to me that the Saxbe fix does not completely satisfy the purposes of the Emoluments Clause. True, it eliminates the possibility that a Member of Congress might vote for an executive pay raise in the hope that he or she would obtain the benefit of that pay raise during the remaining portion of his or her term. But that seems to be an unduly narrow formulation of the constitutional purpose. If this were the only purpose, the Framers would simply have provided that the Member could not receive the benefit of the increased emoluments for the remainder of the congressional term. The fact that they disqualified the Member from being appointed at all suggests a broader purpose.

It's also possible that the "Saxbe fix" (reducing the emoluments to their previous level) didn't occur to them. In that case, the only remedy would be disqualification. If it had occurred to them, they might have written the clause differently.

As John O’Connor demonstrates in his law review article, the reason that the Emoluments Clause did not simply limit the emoluments that a Member could receive is likely that such a provision would have been unacceptable to the Anti-Federalists, who saw the Clause as a disincentive to the expansion of government.

Putting aside the question whether we should give weight to the anti-Federalists, this concern doesn't seem very applicable to the office of Secretary of State. Nobody doubts that we're going to have one -- it was the very first office Congress created (along with Treasury), and it has existed ever since.
 

MLS,

Your response doesn't deal with the obvious problem that the emoluments were encreased by a legislative act that occurred long before "such time" as Clinton was a senator. One doesn't have to distort the text or bring in the intent of the Anti-Federalists to come to that conclusion.
 

"So you think 200+ years of Fourth Amendment jurisprudence that says that the Fourth Amendment implicitly requires a warrant to enter a private home except in exigent circumstances is all wrongly decided?"

No, I think that the Fourth amendment does not require a warrant to enter a private home where the owner voluntarily admits the police

A warrant authorizes the police to enter against the home owner's will. It's not needed if I invite the guy in.

That, by the way, is why no-knock searches, even with warrants, are so problematic: Until you've let the home owner SEE the warrant, they're entitled to oppose the entry of the police. That's the practical function of the warrant, to tell the home owner he has to let them in.
 

Mark- If one assumes that the purpose of the Emoluments Clause was simply to ensure that a Member did not get the benefit of an increase in emoluments that occurred during his term, it is hard to believe that it would not have occurred to any of the Convention delegates that this could be accomplished simply by declaring that the Member could not get the benefit of the increase. The point that I am making is similar to Professor Tribe’s point about the absence of a congressional override procedure, except that the concept of a congressional override adds an additional level of complexity which seems completely unnecessary (and is more plausibly explained by inadvertence). All the Framers needed to do was provide that the increase in emolument would not accrue to the benefit of the Member, and leave it up to the President and the Member as to whether to take that deal. The fact that they made it a disqualification instead is powerful evidence that this is not what they intended.

O’Connor’s point with regard to the relationship between the Emoluments Clause and the expansion of government is that the Anti-Federalists believed that an increase in salary for a federal office, in addition to being a burden in itself, would lead to the expansion of powers, subordinate officials, and expenses associated with the particular office. In retrospect, there have obviously been a lot more powerful factors driving the growth of government, and there may be no relationship at all between the increase in the salary of the Secretary of State and any expansion of the State Department. However, I don’t see how that affects the application of the constitutional provision, which is a prophylactic rule that applies to all civil offices. As for the views of the Anti-Federalists, I think that they matter here because of the role that they played with regard to the negotiation of this particular provision.


PMS- with regard to the fact that the authorization for the salary increase occurred in an earlier Congress, I would make the following observations. First, from the standpoint of the Emoluments Clause, that only matters if you are going to argue that the emoluments did not increase during the current Congress (in which case the Saxbe fix becomes irrelevant). Second, the Emoluments Clause is a prophylactic rule that applies regardless of whether the Member in question actually voted on, or even voted against, the salary increase. Third, because the funds for the salary increase had to be appropriated by the Congress during Hillary Clinton’s current term (and presumably could have been stripped out if the Congress had so chosen), it is difficult to see much of a principled distinction between this and any other salary increase. Finally, if the use of automatic pay increases were recognized as a means of circumventing the Emoluments Clause, this would give Members an incentive to adopt such pay increases, which would seem to be the opposite of what the Clause was attempting to accomplish.
 

This comment has been removed by the author.
 

Brett: I think he was alluding to the fact that you are claiming that the Fourth Amendment is only procedural (specifying the manner and circumstances under which a warrant can be obtained) and says nothing about whether a warrant is required in the first place:

[Brett]: "...the 4th amendment lays out what's required to get a warrant, it doesn't say that you have to have a warrant to enter somebody's home."

Reading that fairly for what the "plain text" says, I can understand his objection. You may have poorly stated your objection here, intending instead to mean specifically (and in a more limited way): "it doesn't say that you alwayshave to have a warrant to enter somebody's home." I think this is what you have in mind; perhaps that 780 isn't sufficient for perfectly clear exposition at all times.

Dilan has already addressed the exceptions to the generally understood warrant requirement.

Here's the way it shakes out (and this has been explained in previous threads):

I). Unreasonable searches are probibited (see 4th. Am.)

A). Searches without warrants are per se unreasonable (and are thus prohibited). This is case law jurisprudence derived from analysis of the conjunction of the unreasonable search prohibition, and the requirement for search warrants in teh 4th Am.)

B). Reasonable (and thus legal) searches therefore (with exceptions) require warrants.

1). Such warrants must be particular, sworn to, and signed by a judge (Fourth Am.)

The standard dodge for when warrantless "searches" are not prohibited is simply to define them not to be "searches" (at least "searches" as controlled by the Fourth Amendment). This may be because it's not the gummint doing the searching, because there's no one that has standing to complain (public places, reasonable expectation of privacy that doesn't run past the home or other places with a similar expectation of privacy), or the inspection/questioning/spying is not a "search" (it's for another purpose [see Terry, and SITA, etc.]. Inviting someone into your house becomes consent (which would be addressed by your lack of standing, or reasonable expectation of privacy, or both).

Thus your objection that warrants are not always required is met with the question/objection: "What search?"

Which is entirely as it should be for anyone that thinks that the Fourth Amendment should be read literally and commandingly, but who wants to carve out exceptions for the 'exigencies' and difficulties of doing 'effective' police work....

Cheers,
 

Arne basically gets at my point. Again, to go back, the question isn't whether we are circumventing the clause, it's whether the clause permits the circumvention.

The Fourth Amendment says nothing about consent, it says all searches and seizures must be reasonable and that warrants require probable cause. But it's a reasonable construction of the provision that it was not intended to bar consensual searches, either because they are always reasonable or because "search" really means "search against the person's will".

But "consent" then becomes a device to permit all sorts of circumvention of the Fourth Amendment, in other words, the police can do all sorts of things that really do seem unreasonable, as long as they have the fig leaf that either the target of the search or some other occupant of the property being searched consented. This kind of circumvention is constitutional because we have concluded that consensual searches are not within the Fourth Amendment's protection.

Similarly, we can all grant that the Saxbe fix is a form of circumvention of the Emoluments Clause. But that starts the inquiry, not ends it. The question is whether the clause, fairly read, permits a circumvention where you lower the salary back down. Maybe it does, maybe it doesn't. But simply the fact that it circumvents the clause doesn't answer that question.
 

Here's another circumvention example. The Spending Clause can be used to circumvent various limitations on congressional power. For instance, under New York v. United States, Congress does not have the power to force states to take title to nuclear waste. However, Congress can certainly create a spending program that funds nuclear waste cleanup and condition states' eligibility to the funds on their taking title to the waste.

Similarly, the Violence Against Women Act regulated local activity and was held to be unconstitutional. However, Congress can decide to fund programs to fight violence against women and require states that wish to receive the funding to take steps that Congress would not be permitted to mandate on its own.

As with all these examples, the issue is whether the circumvention is permissible, not whether we are circumventing.
 

If one assumes that the purpose of the Emoluments Clause was simply to ensure that a Member did not get the benefit of an increase in emoluments that occurred during his term, it is hard to believe that it would not have occurred to any of the Convention delegates that this could be accomplished simply by declaring that the Member could not get the benefit of the increase.

That does seem obvious to us. But in their day, reduction in salary didn't happen. Instead, what happened was that the King used the prospect of executive office to, in essence, bribe MPs to vote in his favor. That's what this clause (and the related no-multiple-offices clause) were designed to prevent. I find it quite plausible to believe that the prospect of reducing the salary simply didn't occur to them.

FWIW, I don't think this speculation controls the interpretation of the clause. I just think we need to be cautious in how we read the Founders' intent.

In retrospect, there have obviously been a lot more powerful factors driving the growth of government, and there may be no relationship at all between the increase in the salary of the Secretary of State and any expansion of the State Department. However, I don’t see how that affects the application of the constitutional provision, which is a prophylactic rule that applies to all civil offices.

What I was alluding to above was the general point that we understand statutes and Constitutions by understanding the particular problem they were intended to solve. If the problem was "multiplicity of offices", then the salary of the Secretary of State doesn't seem to fit within the problem to be solved.

Personally, I think the Founders were more concerned about bribery of legislators. That's a legitimate concern, especially for an office as important as the S'State. But we can solve that problem via the Saxbe Fix.
 

Some of you guys are idiots. What does the 4th amendment and Dick Cheney have to do with this? We are talking about Article 1, section 6,clause 2 of the Constitution of the United States of America!!!!! Obama can use the Saxbe Fix to appoint Clinton but that would not be a "Change" like he said in his campaign for the nomination and for the presidency now would it?? It would just be another politician doing what he needs to do to get his way and would "change" nothing in Washington. For a man who claims to not be like any other politician and if he really believes in that...he should select someone else for Secretary of State if his is smart. If he does not than he is no better than any sneaky, slimy, even not good politician who had come before him.
 

Dilan you are a retard. Fourth amendment, the spending clause, nuclear waste, violence against women act all have nothing!!! to do with this case. I hope you are not a law students or aspiring to be a lawyer because anyone who has seen enough Law and Order prabably knows more law than you.
 

X-man throws down!

Who knew?
 

Yes indeed. Dilan certainly has his difficulties with such as article-noun agreement and using commas in the appropriate place. I'd suggest that he not seek a career in law because those judges don't like people who don't writes to good. I'm sure he's appropriately chastened, Mr. X. Now please expand this acronym for us: "FOAD". ROFLMAO.

Cheers,
 

@Arne,

A relevant quote from ToAC: "...scarcely one man in a hundred is worth your disputing with him. You may let the remainder say what they please, for every one is at liberty to be a fool..."

I am much more concerned with the poor showing of Vincent Smith. "English 103" would seem to indicate a college level English course, but the actual writing should embarrass a middle-school student, doubly so for the complete failure of comprehension. There's something drastically wrong with the system if this can be considered credible college work anywhere and I wish there were something we could do about it.

As for the substance of X-Man's complaints, they've been dealt with elsewhere, repeatedly. Installation of members of the popular Clinton administration indeed does qualify as a campaign-promise-fulfilling Change from the exiting administration's history making level of unpopularity.

Wouldn't it be nice to have a faq listing current right-wing talking points and accepted rebuttals? Wanna start a wiki?
 

Mark, I'm sorry, but I don't see how the so-called "plain meaning rule" is "outside" the Constitution, as opposed to being the Constitution.

(I say "so-called" because calling it a "rule" as if looking at what the words mean were merely an interpretive technique seems to me to beg the question.)

That doesn't mean that the plain meaning is never ambiguous or incomplete; it sometimes is. And in those cases we need to look "outside" the constitution. But looking at the constitution is not looking outside the constitution.
 

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Robert Link:

You're right; not worth the time. But some LSRs are in fact less immune to reason or embarrassment than our problematic one, and may take a hint.

Wouldn't it be nice to have a faq listing current right-wing talking points and accepted rebuttals? Wanna start a wiki?

That's an excellent suggestion. I do know there's pages that try and catalogue the abuses and lies, but a ready Wiki format might be an indispensable aid, in particular if combined with a nice cataloguing shorthand ala Dewey to reference the most common ones.

Just a FYI you might think interesting, back decades ago when I was an undergraduate, some of my new friends kept saying things like "41" and "8". I had to ask what they meant; they explained that they'd developed their own list of the most common stock pithy comments and rebuttals, and referenced them by number to save effort. Nowadays, you might have to resort to "dotted notation" though, considering the devolution in discourse.

Cheers,
 

Here's the way it shakes out (and this has been explained in previous threads):

I). Unreasonable searches are probibited (see 4th. Am.)

A). Searches without warrants are per se unreasonable (and are thus prohibited). This is case law jurisprudence derived from analysis of the conjunction of the unreasonable search prohibition, and the requirement for search warrants in teh 4th Am.)

B). Reasonable (and thus legal) searches therefore (with exceptions) require warrants.


I think the point is that the constitution doesn't say that warrantless searches are per se unreasonable. If one reads it that way, then one has to read in all sorts of exceptions to the rule one has just created that aren't in there (from the "exigent circumstances" one you identify to the Terry stop exception), thus violating the very "per se"-ness of the per se rule.

I think a more natural reading is that the fourth amendment bans unreasonable searches, and that searches without a warrant are usually unreasonable, except in certain situations where it wouldn't be sensible to require them (such as exigent circumstances).

You get to the same place in the end, but one requires reading something in that isn't precisely there and then reading an exception into the thing you just read in, and one doesn't.
 

David Nieporent:

I think the point is that the constitution doesn't say that warrantless searches are per se unreasonable. If one reads it that way, then one has to read in all sorts of exceptions to the rule one has just created that aren't in there (from the "exigent circumstances" one you identify to the Terry stop exception), thus violating the very "per se"-ness of the per se rule.

I think a more natural reading is that the fourth amendment bans unreasonable searches, and that searches without a warrant are usually unreasonable, except in certain situations where it wouldn't be sensible to require them (such as exigent circumstances).


A valid position, and one of the alternatives for dealing with "exigent circumstances" and the hardships of proper police works if one thinks that needs to be done, but unfortunately, WRT constitutional jurisprudence, judges have said that warrantless searches are unreasonable per se.

Cheers,
 

Mark, I'm sorry, but I don't see how the so-called "plain meaning rule" is "outside" the Constitution, as opposed to being the Constitution.

In the same way that the "plain meaning rule" is not "in" Shakespeare or the Bible. Nothing in either of those texts orders us to interpret the words according to their "plain meaning", and there are good reasons not to do so.

The Constitution is not a formal system like number theory. It doesn't purport to list all axioms and prove all theorems. Instead, it implicitly assumes that a great deal of the world outside the four corners of the document will be used to understand it.
 

Compare "constitutional fundamentalism" (aks originalism) with "biblical fundamentalism" to identify the nutty fundamentalists.
 

Nice collection



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