Last year, on Memorial Day, I was thinking about the sorry state of American politics and wondering how we ended up with a president who hadn’t even read the Constitution. I realized that was only possible because most Americans haven’t read it either. We’ve become a nation of consumers instead citizens. We expect good service from our politicians without even reading the yelp reviews before we let someone else elect them. That Memorial Day, I decided to be better than the president and read the Constitution. It took, like, 15 minutes. But when I was done, I couldn’t really remember what I read. I mean, the language is dated and there’s no plot. It’s pretty dry.
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Article One of the Constitution – Complete
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The Tonnage and Compact Clause – Constitution Article 1 §10.3
I kinda broke my rhythm for Constitutional study, but what can you do? Things slip in the summertime. But this week I’m back and ready to tackle Article 1, Section 10. The last Clause I looked at was Article 1 §10.2, which dealt with import and export duties. This is a momentous occasion, because Article 1 §10.3, aka the tonnage clause and also the compact clause is the end of Article 1. It took 13 months to finish Article 1 of seven in the Constitution!
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Duties and Inspection Laws – Constitution Article 1 §10.2
On Wednesdays we study the Constitution. Last week I started Article 1, Section 10, which limits the powers of the states. Article 1 §10.1 was kind of a laundry list in parallel with the powers and limitations of Congress. This week I’m looking at Constitution Article 1 §10.2, which deals with import/export taxes, and, I’m sorry to say, is almost as boring as it sounds. But there’s alcohol at the end if you make it that far.
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Contracts Clause – Constitution Article 1 §10.1
On Wednesdays we study the Constitution. Last week I finished Article 1, Section 9 (ostensibly limiting the powers of Congress) with the Emoluments Clause. This week I’m starting Article 1, Section 10, which limits the powers of the states. Article 1 §10.1 is kind of a laundry list, and much of it parallels the powers and limitations of Congress. The Annotated Constitution has 40 pages of case law and interpretation of it’s various phrases. I’ll try to be more concise.
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Emoluments Clause – Constitution Article 1 §9.8
On Wednesdays we study the Constitution. I’m about to wrap up Article 1, Section 9, which ostensibly limits the powers of Congress. Last week I learned about Article 1 §9.7, which deals with appropriations and accounting. This week it’s Article 1 §9.8, which explains why little American girls only get Disney princesses instead of the real ones. Oh, and it’s also the clause that could get Trump impeached.
Constitution Article 1 §9.8
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.
No Nobility
In one of Joseph Ellis’ excellent biographies of the founders, he related how they had bickered about how the U.S. president should be addressed. John Adams suggested some outlandish thing like, “His Most Excellent Royal Majesty.” Fortunately, they had this clause to shut him down, and settled on “Mr. President.” It’s hard to imagine reading their flowery prose today, but these guys really were austere minimalists for their day.
Not only did this clause construct the foundation of Disney’s empire, it laid out in one short sentence one of the most cherished principles of American society. Nobody gets to inherit rank. Money yes. But no one is officially better than everyone else by virtue of their birth. This is the most unequivocal statement of equality in the Constitution. (“All men are created equal” is better, but it’s actually in the Declaration of Independence, which isn’t actually law.) As a nation we have failed to live up to that in many ways for every single day of our existence (even elsewhere in the Constitution).
Service versus Employment
e·mol·u·ment
noun: emolument; plural noun: emoluments
a salary, fee, or profit from employment or office.
Not granting titles of nobility was pretty much a given. But the second part, which lends the name “Emolument Clause” to 1 §9.8, wasn’t quite as clear. In 1871, the Attorney General clarified that U.S. officials may do a solid for foreign powers – you know, stuff like negotiating treaties on their behalf. But U.S. officials may not work for a foreign power. “Work” meaning of course getting paid for services rendered. Not to mix church and state here, but
No man can serve two masters
Matthew 6:24
The Donald
So, Donny. This clause has never been more significant. Trump retains ownership in companies that do business with foreign diplomats, state-controlled companies, and state-owned television channels. See Trump International Hotel Washington, D.C., where foreign governments currently feel compelled to house their representatives when in Washington; a raft of Chinese patents and trademarks awarded to Trump and his daughter since the beginning of his presidency, and most recently, a big fat loan from the Chinese government.
You Mean Humperdinck Lives?
The phrase “without the consent of Congress” (plus the fact that the clause is in Article 1) indicates that Congress should be responsible for determining when the clause has been violated, but the current Republican majority refuses to take any action not expressly sanctioned by the Orange One, so there is a boatload of lawsuits from Democratic lawmakers, states’ AG’s, and nonprofit watchdog groups.
Arguments that Trump’s business dealings are not violations of the Emolument Clause are what academics call “some old bullshit.” Only pathological liars or people who have not read the Constitution could make them. Nevertheless, lawsuits on the issue face an uphill battle. Since the 44 presidents who preceded him were careful to avoid conflicts of interest, there isn’t a lot of precedent for dealing with Trump’s Constitutional violations.