Balkinization: Electors and Emoluments: A Developmental Perspective

Electors and Emoluments: A Developmental Perspective

Stephen Griffin

As far as I can see, the Trump presidency is headed for something of a legal train wreck over the issue of conflicts of interest, given that Trump pretty clearly does not want to divest himself of ownership of the Trump organization, including its overseas ventures. But I’ll leave his refusal to “normalize” his presidency aside for now, in favor of commenting on two recent controversies over the interpretation of the Constitution – the bid to have electors exercise their own judgment in choosing someone other than Trump or Clinton and the debate over the meaning of the foreign “emoluments” clause in Article I. The latter is of course relevant to the legal problems Trump faces, but my concern here is to take timely advantage of these disputes to make a point about how constitutional interpretation should be approached.

Beginning at a high altitude, I believe the right place to start is with the most important question the American constitutional project faced at the outset – how the Constitution would be enforced. Any constitution said to have the status of law, especially supreme law, must answer this question. The insight that constitutions must be self-enforcing is at most a starting point, an invitation to theorize how this could happen. Perhaps the most persuasive answer the framers came up with is that the people themselves would be the Constitution’s ultimate enforcers. But however persuasive, this is not the best answer. The most practical and effective answer they hit on was to rely on the institutions the Constitution created. These institutions would operationalize the Constitution and make it truly effective as a supreme law, subject of course to the somewhat theoretical check of the people.

I have argued that this answer has strong implications for our understanding of how constitutional change occurs. Depending on how the institutions enforced the Constitution over time, the meaning of the Constitution could change. In addition, the institutions themselves could undergo structural alterations, thus possibly altering the original understanding of the balance of power among the branches, for example. So you wouldn’t be able to reliably know, predict, or understand the meaning of the Constitution at a given point in American history unless you first specified (1) how the relevant constitutional institutions were structured and functioned and (2) the meaning they were giving to the Constitution.

From this perspective, which I call “developmental” (rather than, say, “nonoriginalist”), it follows that it would be a mistake to simply assume that the current meaning of a phrase in the Constitution or role of an institution it created (like the “electoral college”) is its 1789 meaning. This would commit a fallacy I call “time-jumping.” This fallacy was on instructive display in the dispute over whether electors should exercise a degree of “Hamiltonian” independence from state electorates.

Pretty clearly, as far as legal arguments went, those urging state electors to use their own judgment and not follow the election returns were relying exclusively on an eighteenth-century perspective. They were clearly not asking whether historical developments had subsequently altered whatever electoral arrangements the framers made and so their purposes. For example, it is plausible that over time those arrangements became more “democratic” or popularly based, especially compared to the framer’s expectations. This means that the electoral college began functioning differently in a world dominated by political parties and so the enforcement of the Constitution in this respect changed. Perhaps there are those who would argue that this development was questionable or illegitimate, but let’s notice that because the proponents of elector independence did not even confront the possibility of informal constitutional change, they did not address the issue of legitimacy.

The interpretation of the emoluments clause also illustrates the key role institutions play in enforcing the Constitution. As Seth Tillman describes, there is a degree of historical dispute over whether the prohibition on emoluments applies to the president. I disagree with Seth’s interpretation, largely on textual grounds, but the narrow point I want to make here is that he is climbing up a fairly steep hill. That is, the relevant institution, the executive branch, through OLC opinions, is on record as holding that the clause applies to the president. Given OLC’s interpretive authority within the executive branch (standing in for the Attorney General, as I understand it), this has the not inconsiderable effect of creating an institutional reality to which Trump will eventually be forced to respond (unless he divests, of course). Now one response might be to withdraw the prior opinion and substitute a new one (!), but the point is, however this dispute plays out, it will be within a context shaped by this existing institutional position.

You may notice I have not said much about the normative rightness or wrongness of the interpretations in question. Is the Hamiltonian view on elector independence the “correct” one? Or the view that the emoluments clause does not apply to the president? Instead, I have presented a perspective that encourages us to ask a different and, I believe, far more useful set of questions about what our constitutional enforcement institutions have had to say about these questions over time. I think this perspective is certainly more useful in predicting and understanding how our constitutional order will or has resolved these disputes. But, again, wait a minute, are these resolutions legally valid or correct? From a developmental view, a view built I should say specifically to handle a relatively unique, little-amended and unusually long-lived constitution, this is the wrong question. The right question is to ask how to interpret historically, within the most relevant historical context.

Posted 7:09 PM by Stephen Griffin [link]