Emoluments Clause: Constitution’s Least Litigated

EmolumentsArticle I, Section 9, Clause 8 of the United States Constitution (known as the Emoluments Clause) reads:

“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.”

University of St. Thomas School of Law Associate Professor of Law Robert J. Delahunty’s essay on the Heritage Guide to The Constitution is worth reading for an understanding of this obscure provision   Article VI of the Articles of Confederation was the source of the Constitution’s prohibition on federal titles of nobility and the so-called Emoluments Clause. The clause sought to shield the republican character of the United States against corrupting foreign influences.

The prohibition on federal titles of nobility—reinforced by the corresponding prohibition on state titles of nobility in Article I, Section 10, and more generally by the republican Guarantee Clause in Article IV, Section 4—was designed to underpin the republican character of the American government. In the ample sense James Madison gave the term in The Federalist No. 39, a republic was “a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during good behavior.”

Republicanism so understood was the ground of the constitutional edifice. The prohibition on titles of nobility buttressed the structure by precluding the possibility of an aristocracy, whether hereditary or personal, whose members would inevitably assert a right to occupy the leading positions in the state.

Further, the prohibition on titles complemented the prohibition in Article III, Section 3, on the “Corruption of Blood” worked by “Attainder[s] of Treason” (i.e., the prohibition on creating a disability in the posterity of an attained person upon claiming an inheritance as his heir, or as heir to his ancestor). Together these prohibitions ruled out the creation of certain caste-specific legal privileges or disabilities arising solely from the accident of birth.

In addition to upholding republicanism in a political sense, the prohibition on titles also pointed to a durable American social ideal. This is the ideal of equality; it is what David Ramsey, the eighteenth-century historian of the American Revolution, called the “life and soul” of republicanism. The particular conception of equality denied a place in American life for hereditary distinctions of caste—slavery being the most glaring exception. At the same time, however, it also allowed free play for the “diversity in the faculties of men,” the protection of which, as Madison insisted in The Federalist No. 10, was “the first object of government.” The republican system established by the Founders, in other words, envisaged a society in which distinctions flowed from the unequal uses that its members made of equal opportunities: a society led by a natural aristocracy based on talent, virtue, and accomplishment, not by an hereditary aristocracy based on birth. “Capacity, Spirit and Zeal in the Cause,” as John Adams said, would “supply the Place of Fortune, Family, and every other Consideration, which used to have Weight with Mankind.” Or as the Jeffersonian St. George Tucker put it in 1803: “A Franklin, or a Washington, need not the pageantry of honours, the glare of titles, nor the pre-eminence of station to distinguish them….Equality of rights…precludes not that distinction which superiority of virtue introduces among the citizens of a republic.”

Similarly, the Framers intended the Emoluments Clause to protect the republican character of American political institutions. “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.” The Federalist No. 22 (Alexander Hamilton). The delegates at the Constitutional Convention specifically designed the clause as an antidote to potentially corrupting foreign practices of a kind that the Framers had observed during the period of the Confederation. Louis XVI had the custom of presenting expensive gifts to departing ministers who had signed treaties with France, including American diplomats. In 1780, the King gave Arthur Lee a portrait of the King set in diamonds above a gold snuff box; and in 1785, he gave Benjamin Franklin a similar miniature portrait, also set in diamonds. Likewise, the King of Spain presented John Jay (during negotiations with Spain) with the gift of a horse. All these gifts were reported to Congress, which in each case accorded permission to the recipients to accept them. Wary, however, of the possibility that such gestures might unduly influence American officials in their dealings with foreign states, the Framers institutionalized the practice of requiring the consent of Congress before one could accept “any present, Emolument, Office, or Title, of any kind whatever, from…[a] foreign State.”

Like several other provisions of the Constitution, the Emoluments Clause also embodies the memory of the epochal constitutional struggles in seventeenth-century Britain between the forces of Parliament and the Stuart dynasty. St. George Tucker’s explanation of the clause noted that “in the reign of Charles the [S]econd of England, that prince, and almost all his officers of state were either actual pensioners of the court of France, or supposed to be under its influence, directly, or indirectly, from that cause. The reign of that monarch has been, accordingly, proverbially disgraceful to his memory.” As these remarks imply, the clause was directed not merely at American diplomats serving abroad, but more generally at officials throughout the federal government.

The Emoluments Clause has apparently never been litigated, but it has been interpreted and enforced through a long series of opinions of the Attorneys General and by less-frequent opinions of the Comptrollers General. Congress has also exercised its power of “Consent” under the clause by enacting the Foreign Gifts and Decorations Act, which authorizes federal employees to accept foreign governmental benefits of various kinds in specific circumstances.

Another fascinating read on the Emoluments Clause is the December 2016 Brookings Institute study titled The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump co-authored by Norman L. Eisen, Richard Painter, and Laurence H. Tribe.

Update: World Share Interlibrary Loan Prime

The Library is implementing a new system to manage interlibrary loans called World Share Interlibrary Loan Prime.  The system will streamline interlibrary loan service. Interlibrary loan (ILL) is the service that gives you access to the resources of other libraries. You can use ILL to borrow books, and to obtain PDFs of articles and book chapters that the library does not own. The new system contains functionality that will speed the fulfillment of interlibrary loan requests.  Patrons will use their BLS username and password to sign on and make requests. The system will go live on January 23, 2017.

Current ILLiad Users:

There is a new user interface for creating and managing requests.  You will notice a few difference from ILLiad, the previous system.  The new service displays all of your requests on a single page, links to articles, and details about the status of your request and item due dates.  You can also submit new requests from this interface.  The emails and notifications that you receive will look a little different as well.  For those who have outstanding requests in ILLiad, those requests will transfer over to the new system.

We hope that these changes enhance your library experience and streamline how you manage your requests! If you have any questions, please don’t hesitate to contact the Interlibrary Loan Team at ill@brooklaw.edu.

Library Hours – Winter Break and Beyond

The Library will be CLOSED from Saturday, December 24th, through Monday, January 2nd.

Winter Session begins on Monday, January 2nd and ends on Friday, January 13th.

These are the Library Hours for early January:

Tuesday, January 3rd – Saturday, January 7th :     9:00 am – 10:00 pm

Sunday, January 8th –                                              10:00 am – 10:00 pm

Monday, January 9th – Saturday, January 14th –   9:00 am – 10:00 pm

Sunday January 15th –                                             10:00 am – 10:00 pm

Monday, January 16th                                               9:00 am – 10:00 pm  (Martin Luther King Day)

Everyone at the BLS Library wishes you all Happy Holidays!

 

 

 

 

Kindness Chain for the Holidays and Every Day

As the holiday season approaches, law librarians (including this writer), faculty, students and staff at Brooklyn Law School and elsewhere look forward to the end of final exams so they can travel and join family and friends in celebration of the December holidays. From Christmas to  New Year’s Day, from Hannukah to Eid Milad-un-Nabi or the Winter Solstice, many of us will celebrate according to our own tradition. Not all of us will be so fortunate as many people will be working during the holidays to keep the world running while we celebrate the holidays: cab drivers, garage assistants, healthcare workers, carers, police men and women, airline staff, members of the armed forces. All of these people deserve a massive thank you for keeping things going while we sit at home enjoying holiday cooking. So take a minute away from your family and friends and reach out to someone who is working on Christmas Eve, Christmas Day, New Year’s Eve and New Year’s Day. All of us can use a random act of kindness not only during the holidays but every day.

Virtual Reference: We are there, even when we are not

Just because you don’t see a librarian sitting at the reference desk, does not mean we are not there to help. The library has many virtual reference tools to help you with your research. For example, you can always email the library at askthelibrary@brooklaw.edu. You can also look through our extensive FAQ list to see if your question has previously been answered. You can find our FAQs at askthelibrary.brooklaw.edu. You can also browse through our research guides to see if we have created one to address the issue you are researching. You can access a list of the library’s research guides at guides.brooklaw.edu.

If we are not sitting at the reference desk, but you see the chachatwithalibrariant symbol on BLSConnect or the Library’s webpage, click on it to contact a reference librarian for help. You can also text us at 718-734-2432. And of course, often times, we are only a phone call away at 718-780-7567. If a librarian is not available to help at that time, one will get back to you as soon as she is available.  Reference librarians generally answer reference questions, Monday – Thursday from 9 am-8 pm and on Saturday from 12 pm – 5 pm.

Revenge Porn: Taking Trolls to Court

An article in a recent issue of The New Yorker features Brooklyn Law School alum Carrie Goldberg, Class of 2007, as a leader in the crusade against non-consensual pornography, also called “revenge porn.” A founder of the Brooklyn firm C.A. Goldberg, PLLC, she is at the forefront of a movement to use both new and existing laws to penalize individuals who share compromising photos and videos of others without their consent. From her practice not far from the Law School, Goldberg assists clients like Norma, whose story of harassment by a former partner who shared explicit photos of her on the internet is chronicled in the article. Author Margaret Talbot calls Goldberg “a new kind of privacy champion,” detailing Goldberg’s many accomplishments in this new field, from successful prosecutions of revenge porn perpetrators to a major role in an activist campaign to get social media platforms and search engines to ban revenge porn. The article notes Goldberg’s recent hire of a fellow Brooklyn Law School graduate, Lindsay Lieberman, Class of 2011. Earlier this year, Goldberg spoke at the White House to members of the Task Force to Protect Students from Sexual Assault about sexual assault in k-12 with the crew at SurvJustice, a national not-for-profit organization that increases the prospect of justice for survivors by holding both perpetrators and enablers of sexual violence accountable.

hate crimesThe Brooklyn Law School Library collection included Hate Crimes in Cyberspace by Danielle Keats Citron (Call No. HV6773.15.C92 C57 2014). The book covers the subject of trolling or aggressive, foul-mouthed posts designed to elicit angry responses in a site’s comments. The author exposes the startling extent of personal cyber-attacks and proposes practical, lawful ways to prevent and punish online harassment. Persistent online attacks disproportionately target women and frequently include detailed fantasies of rape as well as reputation-ruining lies and sexually explicit photographs. And if dealing with a single attacker’s “revenge porn” were not enough, harassing posts that make their way onto social media sites often feed on one another, turning lone instigators into cyber-mobs. The book rejects the view of the Internet as an anarchic Wild West, where those who venture online must be thick-skinned enough to endure all manner of verbal assault in the name of free speech protection, no matter how distasteful or abusive. Cyber-harassment is a matter of civil rights law, Citron contends, and legal precedents as well as social norms of decency and civility must be leveraged to stop it.

Library Hours & Study Room Reservations During Exams

keep-calmLibrary hours for the reading and exam period, Thursday, December 8th – Thursday, December 22th, are 8:00am – 2:00am.

The circulation desk will close at 12:00am every night during this period.

On Friday, December 23rd we will be open from 9:00am – 5:00pm.

During the reading and exam period study room reservations are mandatory.  All study rooms will be locked beginning at 8:00am on Thursday, December 8th and students must go to the circulation desk at the time of their reservation to obtain the key to the room.  Please remember the following about the use of the study rooms during the reading/exam period:

  • Study rooms are for the use of groups of two or more students.
  • Study rooms may be reserved for the current day and three days ahead.
  • Study room reservations may be made in time slots of 60 minutes.
  • Students may book up to 4 time slots per day.
  • The link to the study room reservations is on the library web page under “Related Links.”

 

Thanksgiving Library Hours

The BLS Library 2016 Thanksgiving Schedule

Wednesday 11/23                  9:00 am – 10:00 pm

Thursday  Thanksgiving        CLOSED

Friday 11/25                            9:00 am – 10:00 pm

Saturday 11/26                       9:00 am – 10:00 pm

Sunday 11/27                         10:00 am – Midnight

happy-thanksgiving-typography

Electoral College vs. National Popular Vote

Election Day 2016 is not the first where a candidate for president won the most electoral votes, thus winning the presidency, but failed to win the popular vote. The unique American system provides no direct election of President and Vice-President. Since 1789, Electors chose successful candidates for those seats. The process is directed by the legislature of each state, either by popular vote or some other selection process. On the first Monday after the second Wednesday in December (which occurs this year on December 19, 2016), the electors meet in their respective States to cast their votes for President and Vice President of the United States.  Article II, Section 1, clause 2 reads: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress”.

The Electoral College decides how the nation’s Chief Executive is chosen. It dates back to the Federalist Papers. See Federalist 68, The Mode of Electing the President by Alexander Hamilton dated March 14, 1788. The pro-slavery influences of the electoral college surrounded the debate on the mode of electing the president. James Wilson proposed to a direct election by the people, but gained no support and it was decided the president was to be elected by Congress. When the constitution was considered, Gouverneur Morris brought the debate back up and decided he too wanted the people to choose the president. James Madison agreed that election of the people at large is the best way to go about electing the president, but knew that the slave states would not be influential with such a system, and so he backed the electoral college.

Instances in the nation’s history when popular vote totals for president differed from the elector count are:

  • The 1824 election was a four-man race. The top two candidates were Andrew Jackson and John Quincy Adams who won despite losing both the popular vote and the electoral vote. Andrew Jackson won 151,271 popular votes (41.4%) to Adams’ 113,122 votes (30.9%), roughly 38,000 fewer popular votes than Jackson who also defeated Adams in the electoral vote by 99 to 84. Neither candidate reached the majority 131 electoral votes so the House of Representatives met to select Adams.
  • The highly contentious 1876 election showed Democratic New York governor Samuel Tilden winning the popular vote over Republican Ohio governor Rutherford B. Hayes with 4,284,020 (51%) to Hayes’s 4,036,572 (48%), a margin of less than 250,000.  The electoral vote was Tilden 184 (one short of a majority) and Hayes 165 (20 ballots short). The remaining electoral votes were in dispute over voter fraud, mostly in three Southern states with Reconstruction governments: Florida, Louisiana, and South Carolina. Congress set up a special electoral 15-member commission of congressmen and Supreme Court justices. Two days before inauguration, on an 8-7 party line vote, the commission gave the disputed electoral votes to Hayes, who won by one electoral vote.
  • In 1888, Benjamin Harrison won the presidency with 233 electoral votes to Grover Cleveland’s 168. Harrison lost the popular vote by more than 90,000 votes winning 5,443,892 (47.8%). Cleveland’s vote total was 5,534,488 (48.6%).
  • The 2000 contest between the Republican George W. Bush and the Democrat Al Gore saw the popular vote winner lose because of the electoral vote count. Gore got 50,999,897 (48.4%) compared to Bush who had 50,456,002 votes (47.9%). The election hinged on the close vote in Florida, which prompted a mandatory recount. Litigation reached the US Supreme Court which ruled on December 12, 2000 in the 5–4 decision Bush v. Gore, ending the recounts, effectively awarding Florida’s votes to Bush. Bush won the electoral vote, 271 to 266.
  • The 1800 election had no records of popular votes as electors were chosen by state legislatures. Thomas Jefferson won 73 electoral votes to John Adams who won 69. Jefferson’s margin of victory came from electoral votes created by counting slaves for purposes of representation, which led to a greater number of electors for each state. States that Jefferson carried had fewer voters. If the election were decided by popular votes, Adams would have won.

Calls fElectoralor reform of electoral reform are likely after this election as they were in earlier ones. See in the Brooklyn Law School Library, Electoral College Reform: Challenges and Possibilities by Gary Bugh who says the Electoral College system was last updated by the Twelfth Amendment in 1804, despite public opinion polls showing a majority of Americans are in favor of changing or outright abolishing it. The book has essays examining all aspects of the debate, including the reasons for reform, the issues surrounding a constitutional amendment, the effect of the Electoral College on political campaigns and the possibilities for extra-constitutional avenues to change. The authors consider both the Federalists’ vision of balanced representation and a more democratic and equality-based ideal. The volume explores the potential for changing a system that many contend is long overdue. After the 2000 election, Professor Paul Finkelman’s article The Proslavery Origins of the Electoral College was published at 23 Cardozo Law Review 1145 (2002). Another article worth reading is by S.M. Sheppard titled A Case for the Electoral College and for Its Faithless Elector, published in the 2015 Wisconsin Law Review Online.

To learn about the Reform the Electoral College movement so the electoral vote reflects the nationwide popular vote for President, see the website of the National Popular Vote.

What’s Hot on the Shelves?

If you are someone who likes to stay up on the latest and greatest, you might be interested in monitoring the Library’s New Book List.  Each month the library publishes a list with its most recent acquisitions.  To access the list, go to the SARA catalog and select the New Book List new-book-list-imageTab.  These titles are not yet on the shelf.  If you would like to check one out, you can stop by the reference desk or email Spencer Province (spencer.province@brooklaw.edu).  He will place it on the circulation hold desk for you to check out.

A few of the latest titles for the month of November include:

Denise A. Hannigan, “Guns Don’t Kill People, People Kill People”: And Other Myths About Guns and Gun Control” (2016).

Jill Norgen, Belva Lockwood: The Woman Who Would be President (2016).

Heather Ann Thompson, Blood in the Water: The Attica Prison Uprising of 1971 and its Legacy (2016).

Jordan Fisher Smith, Engineering Eden: The True Story of a Violent Death, a Trial, and the Fight over Controlling Nature (2016).

Laura Weinrib, The Taming of Free Speech: America’s Civil Liberties Compromise (2016).