Point of Order

There has been much debate about Professor Zephyr Teachout’s claim that the Foreign Emoluments Clause and other constitutional provisions show that the Framers were “obsessed” with corruption. Compare Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 405 (2009) with Robert G. Natelson, The Original Meaning of “Emoluments” in the Constitution 59-60 (Feb. 5, 2017) (arguing that the Framers balanced their concerns with potential corruption against other competing values) and Seth Barrett Tillman, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. L. Rev. 399, 404-10 (2012) (arguing that Teachout has overstated her claim about the Framers’ “obsession” with corruption). Whatever the right word for the Framers’ concerns about corruption, a stronger one is probably needed to describe their hostility (and that of the founding generation) toward titles of nobility. This is particularly true in comparison with modern sensibilities, which regard financial corruption and conflicts of interest with at least as much dismay as did the Framers, but are more likely to view titles of nobility as an amusing irrelevance.

Some flavor of the republican opposition to titles of nobility can be found in the Georgia Constitution of 1777, Article XI of which provided:

No person shall be entitled to more than one vote, which shall be given in the county where such person resides, except as before excepted; nor shall any person who holds any title of nobility lie entitled to a vote, or be capable of serving as a representative, or hold any post of honor, profit, or trust in this State, whilst such person claims his title of nobility; but if the person shall give up such distinction, in the manner as may be directed by any future legislation, then, and in such case, he shall be entitled to a vote, and represent, as before directed, and enjoy all the other benefits of a free citizen.

(emphasis added). Here the holder of a title of nobility was not only disqualified from serving in the legislature and holding a “post of honor, profit, or trust,” but even from exercising his right to vote.

As discussed in my last post, the Articles of Confederation did not go quite that far, but it barred both the national and state governments from issuing titles of nobility and prohibited any person holding an “office of profit or trust” under the United States or any state from accepting titles of nobility (as well as presents, emoluments or offices) from a foreign power. The Constitution largely copied these prohibitions, but, as we saw, permitted acceptance with congressional consent and did not apply to state officeholders.

Ratification

The Federalists pointed to the Constitution’s provisions on titles of nobility as an essential protection of republican government. Madison remarked in Federalist No. 39: “Could any further proof be required of the republican complexion of this system, the decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the state governments, and in its express guarantee of the republican form to each of the latter.” (It should be noted that the Constitution’s guarantee of a republican form of government to the states, which did not appear in the Articles, may in part explain why it was not considered necessary to cover state officeholders in the Foreign Emoluments Clause).

Alexander Hamilton, in Federalist No. 85, likewise listed the “absolute and universal exclusion of titles of nobility” as one of “securities to republican government” provided by the Constitution and explained in Federalist No. 84:

Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner stone of republican government for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.

The assurance of an “absolute and universal exclusion,” however, was not quite accurate. With respect to foreign titles of nobility, the Constitution’s restrictions applied only to holders of offices of profit or trust under the United States. Moreover, unlike the Articles, the Constitution allowed acceptance of such titles of nobility (as well as presents, emoluments and offices from foreign powers) with congressional consent.

This latter change did not go unnoticed in the state ratifying conventions. John Hancock submitted a resolution to the Massachusetts convention asking that the words “without the Consent of Congress” be struck from the Foreign Emoluments Clause so that “there would be an absolute prohibition on federal officeholders’ accepting any emolument, office, or title from a foreign country or King.” Pauline Maier, Ratification: The People Debate the Constitution 1787-1788 197 (2010). The Massachusetts, New York and Rhode Island ratifying conventions all asked for amendments making this change. The Virginia and North Carolina conventions chimed in for a general amendment banning exclusive or hereditary emoluments, privileges or offices of any kind, which presumably would have banned all foreign titles among other things. See Jol A. Silversmith, The “Missing Thirteenth Amendment”: Constitutional Nonsense and Titles of Nobility, 8 Southern Cal. Interdisciplinary L. J. 577, 578 & nn. 11, 13 (1999). Finally, the New Hampshire ratifying convention asked for an amendment that “Congress shall at no Time consent that any Person holding an Office of Trust or profit under the United States shall accept any Title of Nobility or any other Title or Office from any King, Prince, or Foreign State.”

Clearly titles of nobility were a major concern of both Federalists and anti-Federalists, and there was considerable scrutiny during ratification of whether the FEC was sufficiently strict in this regard. It seems inconceivable that these concerns would not have extended to a presidential exemption from the FEC, if anyone thought that such an exemption might exist. To the contrary, the presidency would seem to present the most compelling example of the potential corruption of titles of nobility in general and foreign titles in particular. (It should be noted again that Professor Grewal’s explanation of why the Framers might have chosen to exempt the president from the FEC does not address titles of nobility).

Unquestionably the Framers were worried about potential foreign influence over the presidency, and it was to prevent such influence that they required the president to be a natural born citizen. See U.S. const., art. II, § 1, cl. 5. This requirement is inextricably tied to fears about presidential monarchism. As St. George Tucker explained:

That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, where-ever it is capable of being exerted, is to be dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom. It was by means of foreign connections that the stadtholder of Holland, whose powers at first were probably not equal to those of a president of the United States, became a sovereign hereditary prince before the late revolution in that country. Nor is it with levity that I remark, that the very title of our first magistrate, in some measure exempts us from the danger of those calamities by which European nations are almost perpetually visited. The title of king, prince, emperor, or czar, without the smallest addition to his powers, would have rendered him a member of the fraternity of crowned heads: their common cause has more than once threatened the desolation of Europe. To have added a member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora’s Box.

St. George Tucker, Blackstone’s Commentaries, Vol. 1, Note D, Part 7 (1803)(emphasis added). See also Akhil Reed Amar, Natural Born Killjoy (2004) (natural born citizen requirement was designed to “ease anxieties about foreign nobility,” to “reject all vestiges of monarchy,” and to prevent a scenario where “a foreign earl or duke would cross the Atlantic with immense wealth and a vast retinue and use his European riches to buy friends and power on a scale that no American could match.”); cf. Keith E. Whittington, Originalism, Constitutional Construction, and the Problem of Faithless Electors *17 (Mar. 4, 2017), Arizona L. Rev. forthcoming (“But the founders were familiar enough with the intrigues of the feudal courts of Europe to anticipate the possibility of foreign powers or domestic cabals attempting to influence the national legislature to install some willing princeling as president”).

The anti-Federalists, however, were not persuaded that the Constitution contained enough safeguards against presidential monarchism and foreign influence. At the Virginia ratifying convention, for example, William Grayson warned that ‘[t]he president had too much power, which would make it worth the while of foreign countries to interfere in his election—as they had done when Poland chose a new king in the early 1760s.” Maier, supra, at 286. Patrick Henry likewise warned that the president “could easily become a king.” Id. at 266. But no one claimed that the FEC exempted the president from the restrictions on receiving titles of nobility or other benefits from foreign powers.

Most telling in this regard were the remarks of George Mason, who like Grayson cited the Polish example as evidence of likely foreign tampering with the presidency:

Will not the great powers of Europe, as France and Great Britain, be interested in having a friend in the President of the United States? And will they not be more interested in his election than in that of the king of Poland? The people of Poland have a right to displace their King. But do they ever do it. No. Prussia and Russia, and other European powers, would not suffer it. This clause will open a door to the dangers and misfortunes which the people of Poland undergo. The powers of Europe will interpose, and we shall have a civil war in the bowels of our country, and be subject to all the horrors and calamities of an elective monarchy. This very executive officer may, by consent of Congress, receive a stated pension from European potentates.

 3 Elliott’s Debates 484 (emphasis added). Here Mason clearly implies that the president is subject to the FEC and therefore requires consent of Congress to receive a “stated pension from European potentates.” See Natelson, supra, *12 n. 25 (noting that Mason in this speech “apparently assumes that the Foreign Emoluments Clause applies to the president”). Mason’s remarks are particularly significant because (1) he was a Framer and (2) as an anti-Federalist, he had every incentive to identify any possible risks in the Constitution. (I mean, he even suggests the Russians might interfere in a presidential election!) The fact that he assumes that the FEC applies to the president suggests an interpretation to the contrary did not even cross his mind.

Indeed, nowhere in the ratification debates or the writings of the anti-Federalists does it appear that anyone suggested that the president might be exempt from the FEC. Given that many thought the FEC was already too lenient in allowing the acceptance of titles of nobility and other benefits with congressional consent, it is simply incredible that the opponents of the Constitution would not have objected to the president being exempted, which they certainly would have portrayed as a virtual invitation to foreign interference and bribery. The near universal revulsion with which titles of nobility were regarded would have made the idea that the president was free to accept foreign titles a particularly strong anti-Federalist talking point. Continue reading “The President and the Purposes of the Foreign Emoluments Clause (Part II): Titles of Nobility”

I promised to return to the subject of the Foreign Emoluments Clause and so today I will start a series of posts on the purposes of that Clause and whether it makes sense for the president to be excluded from its terms. This first post will set the stage with a little background.

To be clear, the question here is not merely whether the ostensible purposes of the FEC would be better served by including the president. Rather it is whether the exclusion of the president would be so discordant with those purposes that (1) the educated reader of the Constitution in 1787-89 would have assumed the Clause encompassed the president and/or (2) any suggestion of the president’s exclusion could have been expected to provoke controversy and opposition. If either or both of these is true, then silence regarding the president’s alleged exclusion should be taken as evidence that (1) such exclusion was either (a) not intended by the Framers or (b) not communicated by the Framers to anyone else; and (2) such exclusion was not widely understood by the ratifiers or the general public.

And silence there was. To my knowledge, prior to Professor Tillman’s raising the issue in 2009 or so, no one had ever expressly claimed or directly implied the president was excluded by the FEC. No president, no member of Congress, no executive branch lawyer, no constitutional scholar. No one. By contrast, there had been a number of statements expressly affirming or clearly assuming the president’s inclusion, including by Framers/ratifiers (Edmund Randolph and George Mason), by executive branch lawyers at the Office of Legal Counsel, by statute (the Foreign Gifts and Decorations Act) and by occasional comment of constitutional writers and scholars. Perhaps this is a relative paucity of affirmations over a period of two centuries, but on the other hand there was little reason for anyone to expressly consider and affirm what no one had disputed or denied.

Under the circumstances, it is not surprising that no one had offered an explanation as to why the Framers might have excluded the president from the FEC’s provisions. Indeed, Tillman himself, although he has intimated reasons why the president might have been excluded from other constitutional provisions, such as the Disqualification Clause (see here at page 92 n.83), has not explained to my recollection why the Framers would have wanted the president to be exempt from the FEC’s presumptive ban against accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” And there is no obvious reason (at least obvious to me) why the president would be exempted from a provision founded, in Justice Story’s words, “in a just jealousy of foreign influence of every sort.” 3 Joseph Story, Commentaries on the Constitution of the United States § 1346.

Fortunately, Professor Grewal has attempted to fill this void. In a recent article focused primarily on other aspects of the FEC, he notes:

Scholarly debates show that whether the Foreign Emoluments Clause treats the President as a U.S. Officer remains an open question. At first glance, it may seem implausible that the Constitution would exempt any member of the government from a provision designed to prevent corruption. Yet the Domestic Emoluments Clause, which also guards against corruption, applies only to the President and not generally to U.S. Officers, or even to the Vice President. This suggests that the Framers may have drafted each emoluments clause to address their principal concerns, without attempting to guard against corruption of every type imaginable.

Regarding their principal concerns, the Framers may very well have believed that only appointed officers, like ambassadors, would make the type of extended visits abroad that could subject them to improper foreign influences. The President, they may have thought, would remain stateside to tend to the needs of the nation, and his potential corruption would be best addressed through the Domestic Emoluments Clause. Under this view, the exclusion of the President from the Foreign Emoluments Clause would be entirely consistent with the Framers’ design.

Andy S. Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. __, **7-9 (forthcoming 2017).

Grewal also notes that the Framers might have been more concerned about the potential for corruption among those officers of the United States who did not receive fixed compensation, but were dependent on “potentially uncertain streams of income” such as charging transaction-based user fees for services like processing of immigration papers. Id. at *9. Because the Constitution guarantees the president a fixed salary, Grewal suggest that the Framers may have been less concerned about the possibility the president would be susceptible to foreign corruption. He acknowledges, however, that “no contemporaneous materials advance this understanding.” Id.

With this potential explanation in mind, let’s take a closer look at what the FEC proscribes. We begin with the text:

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 Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

U.S. const., art. I, § 9, cl. 8.

One thing to note from this language is that the U.S. officeholder is not only restricted from receiving any present or emolument, but two items not discussed by Professor Grewal. One is any title, including if not necessarily limited to any title of nobility, which appears to be a central focus of the Clause. (More on this later.)

The other is any “office.” Presumably an office conferred by a foreign government could impose duties to be performed on behalf of that government. Acceptance of such an office would seem to be manifestly improper for any federal officeholder, much less the president of the United States. For present purposes, however, I will assume that the FEC primarily contemplates ceremonial offices, which would simply be another way of conferring an emolument or title. Therefore, I will not give separate consideration to this restriction.

The language of the FEC must be understood in light of Article VI of the Articles of Confederation, which contained a closely related provision from which the FEC is derived:

No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State; nor shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign state; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.

This provision of the Articles combines two different concepts. The first sentence limits the ability of states to conduct their own foreign relations. The last sentence prohibits the United States or any state from issuing titles of nobility. The middle sentence links these seemingly unrelated subjects by prohibiting any person holding “any office of profit or trust” under the United States or any state from accepting a title of nobility or other benefit from a foreign power.

The drafters of the Constitution broke this provision into two components. The FEC addresses prohibitions on the United States, forbidding the issuance of titles of nobility at the federal level and federal officeholders from accepting, without congressional consent, titles of nobility or other benefits from foreign powers. A separate provision, which immediately follows the FEC, contains a series of prohibitions on the states, including forbidding them from entering into any treaty, alliance or confederation and from issuing any title of nobility. See U.S. const., art. I, § 10, cl. 1.

There are two observations of interest here. The first is that the FEC uses the same term, “office of profit or trust” under the United States, as was used in the Articles. Since there was no president under the Articles, there may have not been a pre-existing understanding as to whether the term embraced the office of president.

Second, unlike the Articles, the Constitution does not forbid state officeholders from accepting titles of nobility, emoluments, etc. from foreign powers. The reason for the change is unclear. One possibility is that the Framers decided to permit such acceptance with the consent of Congress, but thought it improper or impractical to require state officeholders to seek such permission (imagine Congress being inundated with requests from state officials, who at that time would have been much more numerous than federal officers). Alternatively or in addition, they may have thought it inappropriate or unnecessary for the federal constitution to regulate the conduct of state officeholders.

It is also possible that the prohibition with respect to state officeholders in the Articles was considered necessary because of the particular structure of that system. The primary national institution under the Articles was the Confederation Congress, and delegates to that Congress, who were “annually appointed in such manner as the legislatures of each State shall direct,” arguably functioned more like state delegates or commissioners to an interstate convention than like ordinary legislators. This is speculation, but the drafters of the Articles may have thought that covering “offices of profit or trust” under any state was necessary in order to ensure that delegates to the Confederation Congress were subject to the prohibition.

With this background, in my next post I will turn to the purposes of the prohibition on titles of nobility.