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.