Latest posts by Michael Stern (see all)
- The President and the Purposes of the Foreign Emoluments Clause (Part III): Presents and Emoluments - March 20, 2017
- The President and the Purposes of the Foreign Emoluments Clause (Part II): Titles of Nobility - March 16, 2017
- The President and the Purposes of the Foreign Emoluments Clause (Part I) - March 15, 2017
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.
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.
Congress and the Foreign Emoluments Clause
Professor Tillman might respond to the above that if the silence of the anti-Federalists demonstrates that the president is covered by the FEC, it must likewise demonstrate that members of Congress are covered. Such a position would be problematic (he might argue) in light of the widespread view of constitutional scholars that the term “office under the United States” does not extend to legislators.
Indeed, it is entirely plausible that the Framers and ratifiers alike, to the extent they thought about it at all, assumed members of Congress were covered by the FEC. See Michael L. Stern, House of Cads: Legislators and the Disqualification Clause, www.pointoforder.com/2014/09/02/house-of-cads-legislators-and-the-disqualification-clause/ (Sept. 2, 2014) (“I strongly suspect [the FEC] would have included Members of Congress within its strictures if anyone had thought about it.”). As noted in my last post, there is some reason to believe that the parallel provision in the Articles did apply to members of the Confederation Congress, and it would be understandable (if not necessarily correct) to assume that the FEC’s use of identical language would encompass members of the new Congress as well. Perhaps, in fact, the original understanding of the FEC supports congressional practice treating the Clause as applicable to legislators, even though the Clause’s wording might have been better chosen to reach that result. See, e.g., House Ethics Manual 57 (2008) (“The Constitution prohibits federal government officials, including Members of Congress from receiving “any present . . . of any kind whatever” from a foreign state or representative of a foreign government without the consent of Congress.”).
Even if it was understood during the ratification debates that the FEC potentially did not apply to members of Congress, this would have been a less pressing concern than with respect to the president. The prospect of foreign states successfully influencing or corrupting a dual-chambered, multi-member legislature was far more remote and unlikely, nor was anyone worried about a member of Congress declaring himself King. Moreover, even if members technically did not need the consent of Congress to accept a foreign title or emolument, each chamber could use its disciplinary and other powers over its members to achieve the same result. See Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine:” Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209, 282 n. 361 (2014). Any member, for example, who accepted a foreign title of nobility would likely face expulsion and would certainly be committing “political suicide.” Id.
When the issue of whether the FEC applied to members of Congress actually (if tangentially) arose in the late 1790s, the debate suggested some uncertainty as to the right answer but a great reluctance, from a policy standpoint, to exempt members from the Clause. When members of the House expressed doubt whether a senator (William Blount) was a “civil officer of the United States” subject to impeachment, Representative Dana cited the FEC as an argument for an affirmative response:
Another clause of the Constitution said “that no title of nobility shall be granted, and no person holding any office of profit or trust shall accept of any present, emolument, office, or title of any kind whatever from any King, Prince, or foreign State.” And it was not meant to be said that, though our officers were not to be allowed to receive emoluments, &c., the members of the Legislature were not forbidden to do it. This would be a strange doctrine.
7 Annals of Congress 453 (July 6, 1797). No one took issue with this statement, and it may have helped convince the House to agree to the motion to impeach without division. See David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801 276 (1997).
During the ensuing impeachment trial in the Senate, the House impeachment managers elaborated on Dana’s argument to show the absurdity of excluding senators from the Constitution’s use of the terms “office” and “officer.” Representative Bayard pointed to the text of the FEC and noted:
If a Senator holds no office of profit or trust under the United States, it is lawful for him to accept a present, title, or office, from any King or foreign State. Can it be possible that a public functionary, of all others, the peculiar object of this jealous restriction is, in fact, the sole object of exemption from its operation? Can it be imagined that a Senator, upon whom the Constitution has heaped the powers and trusts of Legislator, Judge, and Executive Magistrate, is the only person who is left exposed to the seduction of foreign influence? It can never be admitted that a situation which, from its trust and importance, most invites corruption, is the only one which the Constitution has not guarded against.
8 Annals of Congress 2260 (Jan. 3, 1799) (emphasis added).
Bayard then goes full titles of nobility:
If, sir, a Senator be not an officer under this clause, it might happen that the Senate of the United States might become a House of Lords. It would be in the power of any King in Europe to change our free Government, and to convert one branch, at least, from a republican into an aristocratic form. You will not suffer an Ensign in your army to accept the humble title of Chevalier, and yet you will allow an integral part of the Government to be composed of Earls and Dukes.
Jared Ingersoll (who had served as a delegate to the Philadelphia Convention), acting as Blount’s defense counsel, did not have a lot to say in reply to Bayard on this point:
Some observation was made on the 9th section of the 1st article of the Constitution of the United States, “that no person holding any office of profit or trust under the United States, should, without the consent of Congress, accept of any present from any King, Prince or foreign State.” Might a Senator, one in so important a public situation, accept of a present from a foreign State? No, I answer. The power of expulsion is a sufficient check. The impropriety of the measure would be a sufficient guard.
8 Annals of Congress 2292-93 (Jan. 5, 1799).
This appears to have been the defense’s entire response regarding the FEC. More interesting than what Ingersoll said is what he did not say. He did not claim that the policy of the FEC was insignificant or in applicable to senators. He did not claim that it would be appropriate under any circumstances for a senator to accept a present from a foreign state. He made no appeal to nor cited any evidence for a prior understanding that the FEC was inapplicable to senators. And he made no reference to titles of nobility at all. Essentially, Ingersoll suggested that the Senate’s power of expulsion meant that the sky would not fall if the FEC did not apply to senators, and he then left the subject as quickly as he could.
Most tellingly, Ingersoll did not make any suggestion that the FEC was inapplicable to the president. This would have been an effective comeback to Bayard, who had repeatedly claimed that defense counsel’s position would make senators the sole exceptions to the FEC. If the president were exempted (or, more precisely, if it were widely thought that the president was exempted), surely Ingersoll would have pointed out that the FEC failed to cover a person of even greater “trust and importance” than a senator.
The Titles of Nobility Amendment
Discussion of attitudes toward titles of nobility at the founding would not be complete without mention of the Titles of Nobility Amendment (TONA), which was proposed by Congress in 1810. See David P. Currie, The Constitution in Congress: The Jeffersonians 1801-1829 333-35 (2001). As originally drafted, it would have prohibited any citizen with a foreign title from holding an office under the United States. Id. at 333-34. This relatively moderate proposal would have closed an arguable loophole in the FEC by preventing an individual from accepting a foreign title and subsequently assuming an office under the United States. Exactly what prompted the amendment is unclear, but Professor Currie cites speculation that “it might have been fruit of fears of Napoleon.” Id. Napoleon Bonaparte’s younger brother had married an American woman from a prominent Baltimore family in 1803, and some feared (or pretended to do so for political advantage) that this was a first step toward French nobility seeking political power in the United States. See Silversmith, 8 Southern Cal. Interdisciplinary L. J. at 584. Because the marriage created the possibility that a natural born U.S. citizen would also be heir to the imperial throne of France, see id. at 584 n. 44, it seems highly unlikely that the drafters of the original TONA amendment would have left open a presidential loophole in the FEC, if one were thought to exist.
In any event, the original amendment was considerably expanded in Congress so as to ultimately read:
If any citizen of the United States shall accept, claim, receive, or retain any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office, or emolument of any kind whatever, from any emperor, king, prince, or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them.
In this form, now considerably more draconian than the Georgia Constitution of 1777, TONA was proposed by Congress in 1810 and ratified by 12 states within a few years (only one or two, depending on how you count, short of the number needed for ratification at the time). See Currie, The Jeffersonians 334.
For our purposes, the important point to note is that TONA only renders the recipient of the foreign title or other benefit incapable of holding “any office of trust or profit” under the United States, a term which, according to Professor Tillman, was widely understood not to include the presidency. It might be argued that this problem, along with the issue of eligibility for a seat in Congress, is solved by the loss of citizenship, which would make the denaturalized citizen ineligible for the presidency (or a congressional seat). To rely on this argument, however, would have been a circuitous and risky approach. The Constitution requires that the president be either a “natural born citizen” or a citizen at the time the Constitution was adopted. A denaturalized citizen would certainly meet the latter requirement and arguably could meet the former as well.
If one assumes it was widely understood in 1810 that the presidency was not (or even arguably was not) an office under the United States, one has to wonder why the drafters of TONA would have failed to provide directly for incapacity to hold the presidency, instead of depending on an indirect and possibly ineffective method to disqualify a foreign titleholder. Was not protecting the United States from a Bonaparte or other nobleman ascending to the presidency rather more important than, to paraphrase Bayard, a Chevalier being commissioned as an Ensign in the army? Surely the drafters and supporters of TONA would have given as much attention to closing the FEC’s “presidential loophole” (if they thought one existed) as they did, in Currie’s words, to “denaturalizing widows and orphans who take gold watches from foreign governments.” Currie, The Jeffersonians 335. And if for some reason they thought it best to rely on indirect method to close that loophole, one would think that they would have been careful to leave a record of their intent somewhere in the proceedings of Congress and the state legislatures.
In short, throughout the founding period and well into the second decade of the 19th century, titles of nobility were extremely unpopular among Americans. The notion of a foreign title of nobility being accepted by the president of the United States would have been beyond the pale, given fears of presidential monarchism and foreign corruption of the presidency or the presidential election process. By all indications, any suggestion that the FEC did not apply to the president would have set off a firestorm, yet no one appears to have made such a suggestion. Those who had the most incentive to raise the issue (the anti-Federalists, Blount’s defense team and those involved in the proposal and ratification of TONA) never made a peep.
All of which seems to me to be considerable evidence that the “presidential loophole” in the Foreign Emoluments Clause is the figment of an overactive legal imagination.
[First published at Point of Order at http://www.pointoforder.com/]