Constitution 101
During my active years at Drake University I taught a course I titled “The Political Theory of the American Founding,” in which we read not just the Federalist Papers and Anti-Federalist Papers, but also, more fundamentally, the Notes on the Debates in the Federal Convention in Philadelphia. Despite having grown up in our heavily saturated news and media environment that easily fosters cynicism, I have always been simply amazed by the quality and sophistication of these debates (a handy paperback version can be found here).
Political debates nowadays? Sigh . . . .
In addition to what we might consider the major clauses in the Constitution coming into public awareness, sometimes relatively obscure clauses in the Constitution pop up in the news as well. The emoluments clause is a current example. This clause appears in Article 1, Section 9, at subsection 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.”
Let us first recall the basic structure of the Constitution. In its original, pre-amendment form, it consisted of the Preamble—which, importantly, refers to “We the People of the United States” in contrast to “we, the undersigned Delegates of the States” in the Articles of Confederation—and seven “Articles.”
In broadest terms, as you know, Article I sets out the structure and powers of Congress, the legislative branch; Article II sets out the structure and powers of the presidency, the executive branch; and Article III likewise sets out the structure and powers of the federal judiciary. These are our primary national governmental institutions.
The remaining articles deal with important but non-institutional concerns. Article IV provides guidelines for federal-state relations; Article V sets out the procedures for amending the Constitution; Article VI establishes the all-important supremacy clause along with what we might casually refer to as various odds and ends; and Article VII sets out the process for ratifying the proposed new Constitution.
For our purposes here, the key article in question is Article I, which contains roughly 52% of the 4,543 words in the entire pre-amendment document. Sections 1-7 of Article I establish the House of Representatives and the Senate, detailing their structure, mode of appointment, and legislative procedures.
Next, and of central importance, Section 8 sets out the powers granted to Congress, Section 9 sets out the powers prohibited to Congress, and Section 10 sets out the powers prohibited to the states.
(Regarding those powers prohibited to Congress, allow me to note that the order of amendments in what we have come to call the Bill of Rights does not reflect any type of comparative importance or hierarchy. James Madison initially sought to put these protections into their proper places in the main body of the Constitution, and their order reflects where they might have gone. For example, the First Amendment’s various prohibitions presumably would have appeared in Article I, Section 9, listing powers prohibited to Congress. Madison lost that argument, however, and the Bill of Rights appears as a separate add-on to the original Constitution.)
So, we return to Article 1, Section 9, at subsection 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.”
Now, if in their collective wisdom Iowa’s senators and representatives in Congress were quite properly and understandably to introduce a bill naming me “Dennis, Duke of Des Moines,” the first part of this clause forbids that. It’s a shame, but it’s a fact.
The remaining, so-called emoluments part of the clause is a prohibition applicable to any person “holding any Office of Profit or Trust under” the United States, which covers not just members of Congress but members of both the executive and judicial branches as well.
Aside from potential security concerns and the expected multi-million-dollar cost of looking into them, the proposed Qatari gift of a luxury Boeing 747 to President Trump appears to many observers across the political spectrum as a highly problematic infringement of the emoluments clause.
The fundamental question is, is the Republican majority that controls Congress willing to respect and act on the clear command of Article I, Section 9, subsection 8? In a recent column in April I suggested that what we might call the MAGA Constitution essentially deletes or erases Article I. We would appear to have reached that point.
If you subscribe to the Washington Post online, see “The Republican squirm is in full swing” in the May 14 issue for an example of this. More clearly, here is an interesting article—and especially title—on the New Republic website, also dated May 14: “Trump Writes Congress out of the Constitution—and Congress Says Fine.”
Sadly, these say it all; “Congress Says Fine.” Constitutionally, Congress is first among equal branches—not an institution subordinate to any president. I wish someone up there would remember that.
(To spare you your usual homework, I will not post a column on May 23 for Memorial Day weekend. I will resume on May 30. Happy barbeque!)
No constitutional scholar am I. But your argument seems perfectly logical and reasonable and legal. Is it true President Clinton accepted a multimillion dollar helicopter as a gift from a foreign country and personally used it after his term in office?