Update on S. J. Res 46: Now Public Law

For Immediate Release
Office of the Press Secretary
December 19, 2008

President Bush Signs H.R. 6859 and S.J.Res. 46 Into Law

On Friday, December 19, 2008, the President signed into law:

H.R. 6859, which designates a facility of the United States Postal Service as the Dr. Walter Carl Gordon, Jr. Post Office Building,

S.J.Res. 46, which reduces the compensation of the Secretary of State to the level in effect on January 1, 2007.

http://www.whitehouse.gov/news/releases/2008/12/20081219-4.html

Join Us in Building the Momentum of Democracy 2.0

Don’t Miss Out! Keep the Momentum going!

Register for Constitutional Convention: Building Democracy 2.0 today at http://www.democracyupgrade.com.
Building off the tremendous level of enthusiasm seen during the 2008 elections and with the growing prospect that service will be an integral element of the Obama Administration’s agenda in January, Mobilize.org will convene a summit of young leaders from around the country at the National Constitution Center in Philadelphia January 9-11 for Constitutional Convention: Building Democracy 2.0

Grants of up to $10,000 will be awarded to teams with project ideas that advance the cause of Democracy 2.0.
Teams are now being formed to compete for grants, ranging between $5,000 and $10,000, to projects that will increase the discussion about the role of citizen engagement, especially among young people, and advance Mobilize.org’s vision for an upgraded democracy.

Join Mobilize.org, the National Constitution Center, Declare Yourself, the National Conference on Citizenship, Change.org, Why Tuesday?, 18 in ’08, Generation WE, and the Association of Young Americans for this historic event.
The timing, just ten days before the Presidential Inauguration, comes at an important moment for the country. Located just feet away from where delegates from newly established states stood during the summer of 1787 to draft the founding document that would serve as the framework for our nation’s history, new delegates, from a new generation, will convene again to discuss, debate, exchange ideas and propose innovative solutions. Just days after Constitutional Convention: Building Democracy 2.0 concludes, President-elect Barack Obama & Vice-President-elect Joe Biden will visit Philadelphia on a train-tour which will lead them to Washington, D.C.

For further information, contact the Summit Team at democracyupgrade@mobilize.org

Get Engaged Using Our Social Networks, including our Facebook group, MySpace group, Twitter , blog and Convention Wiki.

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Constitutional Convention: Building Democracy 2.0 is only three weeks away.

3 Weeks From the Convention

Constitutional Convention Building Democracy 2.0 Memorandium

Subject: Convention Participant Conference Call-Monday

Dear Participants,

In just three weeks we look forward to welcoming you to the National Constitution Center in Philadelphia for Constitutional Convention: Building Democracy 2.0. The beginning of the Mobilize ’09 programming agenda, this event is shaping up to be a historic discussion on the role of the Constitution in the lives of the Millennial Generation and a chance for innovative and groundbreaking projects to compete for up to $10,000 in funding in order to build on Mobilize.org’s Democracy 2.0 initiative.

The purpose of this e-mail is to share some important information with you.

First, we will be holding a participant conference call on Monday (December 22) at 9pm EST (6pm PST) to deliver important information about the Convention and to answer any questions that you may have. We strongly encourage you to join the call by following the call-in information below:

Conference Dial-in Number: (218) 844-8230; Participant Access Code: 101875#

Second, we are continuing to seek participants and team project proposals. Please spread the word about Constitutional Convention: Building Democracy 2.0 among your friends and networks. As a reminder, the deadline to submit your grant summit proposal is also on Monday. For more information please consult our Participant Information Packet.

For more information on travel, lodging or other logistics you can connect with other registered participants of the Convention team using our social networks, including our Convention wiki.

Finally, I have attached a participant press release template which you may customize with your name and brief biography and send to your local newspaper and media (and don’t forget your student or campus papers!) to gain publicity and recognition for your participation in this important event.

We’re happy to answer any questions about Constitutional Convention: Building Democracy 2.0. Visit our website at www.democracyupgrade.com or contact us at 1-866-MOBILIZE.

Thank you for your time and we’ll connect again on the Monday Call,

The Mobilize Team

Democracy in Action

Today, in state legislature chambers around the country, electors are casting their votes and formally electing the 44th President of the United States, Barack Obama.

Here's a story from Bloomberg News:
http://www.bloomberg.com/apps/news?pid=20601087&sid=amX9UBI1.wKI&refer=home

And trace the states as they come in with this Google News Search:
http://tinyurl.com/5srmrz

Update on S. J. Res. 46

The House & Senate both approved S.J. Res 46, the so-called "Saxbe Fix" last week and it was presented to the President on December 12th. As soon as the White House releases word on the bill, we'll pass it along on the Convention Blog.

You can track the Bill's progress through Thomas:

http://tinyurl.com/6jvnd3

House Passes S.J. Res. 46

The House of Representatives has just passed S.J. Res. 46, "ensuring that the compensation and other emoluments attached to the office of Secretary of State are those which were in effect on January 1, 2007 "

A Concluding Post on Constitutional Application

This is the sixth post in a blog deliberation on the current Constitutional issue before us, regarding Senator Hillary Clinton's nomination to be 67th Secretary of State (see below, and previous posts). The discussion will bounce between Mobilize staff (whose opinions are their own), and we invite you to join in! Add comments or email your opinion to christina@mobilize.org.

By Chris Golden

In my closing argument, I find it necessary to once again present a rebuttal for the limited and restricted view that my colleague has continually taken with regards to Article 1 Section 6 and the Saxbe Fix through the course of this argument and, more broadly, to defend those who argue for historical precedence as a precondition for appropriate Constitutional application against charges of destruction of our revered Founding Document. Concurring with Shakespeare’s statement on brevity, I will attempt to keep this summation as short as possible.

The argument is one of a specific Constitutional detail but it has to be seen as a greater debate over the interpretation of the Constitution as a whole and the two viewpoints that have existed since the early days of the Republic. On the one hand, there are those who view the Constitution as the framework of an infant nation that lives and breathes as it guides throughout American history, a prerequisite that allows for sections that become outdated and not applicable in certain circumstances to have the force of law applied in a different way than at other circumstances. On the other hand, there are those who view the Document as absolute, having to be strictly constructed and applied consistently. Those who argue for appropriate application do so not through one person or one situation but rather as a result of the compelling, compounding forces of history which we believe dictate and drive the Constitution to be applied with the same intent in all circumstances. We view the Constitution as having a greater flexibility but, as the argument in this circumstance has shown, take this power-- that we believe comes from the document-- very seriously. Ones belief about the Constitution as a whole constitutes how they form opinions about how to proceed in the circumstance that currently exists with regard to the nomination of Senator Clinton as Secretary of State.

Therefore, we examine the issue of the Emoluments Clause, “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time…”

My colleague argues for a literal interpretation of the Emoluments Clause whereby “it does not matter how such Emoluments were raised…all that matters is the fact that they were raised.” My fundamental disagreement comes here, where I believe it is essential to look at the intent of the Founder’s in inserting the Emoluments Clause, to derive any tests that develop and to apply those tests to this situation.

It was the founder’s intention to limit corruption and prevent it from crossing from the Legislative Branch to the Executive Branch, by the building of a wall of separation between them through the prohibitions in Section 6’s language. The second part of that statement is important to understanding why it is so important to test this clause—because through the course of American history, that wall of separation has eroded, bringing with it a question as to the validity, necessity and actual enforceability of this provision. This is an important prerequisite to our return to comparing original intent with this circumstance.

As a means to prevent corruption by disallowing a member of Congress from creating or increasing the pay of an office that he intends to be appointed to, this clause fails to apply to the current nomination. Reasons include the real-world negligibility of the increase (we will return to that in a minute), the fact that the increase occurred by Executive Order by a President of a different political party than his successor, and the nominee, and the length of time between the increase and the nomination. Further, as an ode to the original intent of the Founder’s to prevent corruption and in recognition that there may come a time in the future when the Section will be needed to prevent corrupt abuses as was outlined, the Congress has proposed to go on record and remove any appearance of impropriety by lowering the salary increase to the level that it was before the Senator took office.

Second, my colleague puts forward a second objective of the Founders’, one that is much harder to quantify, but which also fails when tested against the current circumstance. The nomination does not do anything to expand the size of the federal government and nor does it provide an incentive for members to expand the size of the bureaucracy in the future. The argument that by increasing the salary for a position you are increasing the amount of capital output on the federal balance sheet and thereby increasing the size and scope of the government is a failing argument. Further, looking and recognizing the compounding system that has developed for presidential nominations and appointments, it is archaic to argue that lawmakers are hesitant to create new offices because they would be disqualified from assuming that position. Even if it was a concern of the founders, it is not the way that the process has developed—another reason why this section should be subject to greater tests than, say, other sections of the documents whose original intention are consistent with their intention today.

There is one other critical element to explore in relation to Article 1/Section 6—the meaning of what an “encrease” is. A literal view may look strictly at a numerical increase in the total salary. It is not outlined in the Constitution, however, whether the Founder’s would consider an increase to be an additional reward for services rendered. In which case the cost of living increase, derived by formula, simply adjusts the level of salary to real-world levels, cancelling any changes out in the process. The argument could then be made that the Saxbe Fix goes above and beyond what is necessary and is further evidence as to how the fix is a tremendous recognition of the original intent, past necessity and possible future—for a clause which does not apply in this situation.

Seeing how the nomination fails both tests as outlined through the intent of the author’s, and seeing how the application of this section should be considered differently, allowing for the historical evolution to modern circumstances, it is not fair to just conclude that “different people at different times interpreted the document differently, especially for their political ends.” Instead, a concurring opinion has developed to apply this section of the document in an appropriate way following its original intention without regard for a political end save the benefit of expediency. Further, how is it possible that if the intention of even the smallest detail within the Constitution is treated with great respect and recognition, even though it is no longer directly relevant, that it threatens the integrity of the document as a whole? Wouldn’t the country be threatened more if an impediment established for means that do not existed proved to be a roadblock towards progress?

I believe that it was the further intent of the Framers to purposely engage the country in the type of dialogue that my colleague and I have started on this blog. They purposely did not spell out every circumstance in which their text would be questioned or provide any overarching guidance as to how to answer those questions. Thus they accounted for the fact that the People, or the People’s representatives would debate and draw a conclusion—and trusted that this resolution would be stronger than any additional layer they could draw to the Framework they had established.

It was indeed a pleasure to go through this debate with Mr. Troiano this week; it is our joint hope that we have raised issues, concepts and interpretations that are important in our national dialogue and, further, that we can use this platform, as well as those at the upcoming Constitutional Convention to continue that discussion to build a more perfect Constitution and an upgraded Democracy.

A Concluding Post on Unconstitutional Clinton

This is the fifth post in a blog deliberation on the current Constitutional issue before us, regarding Senator Hillary Clinton's nomination to be 67th Secretary of State (see below, and previous posts). The discussion will bounce between Mobilize staff (whose opinions are their own), and we invite you to join in! Add comments or email your opinion to christina@mobilize.org.

By Nick Troiano

Shakespeare once said that brevity is the soul of wit. As such, I offer this last post to present a summary of my argument.

It is clear my colleague and I see this debate through two different lenses. Whereas I value our founding document as the ultimate law of the land whose purpose in enduring for many centuries is greater than our temporary convenience (like confirming a Secretary of State), my colleague wishes to persuade us that the prohibitions of the Constitution, like the clause in question, evolve over time to fit our needs and circumstances.

  My argument is broken down into two parts based on two different interpretations. Each has the same conclusion.

  Part 1: A literal interpretation of the Emoluments Clause

  The Emoluments Clause states that “no senator, during the time for which he was elected, be appointed to any civil Office” whose Emoluments “shall have been encreased.”

  The following is an undeniable fact: Hillary Clinton was a Senator at the time the Secretary of State’s salary was increase. According to the Emoluments Clause, she is then ineligible to be confirmed to the Secretary of State position until then end of her term. It does not matter how such Emoluments were raised or whether they were subsequently lowered – all that matters is the fact that they were, at one time during a her term, raised. This is one reason why the legally untested “Saxbe fix” (which would restore the office’s salary to its original rate) is hardly a fix at all; it cannot change a historical event.

  Part 2: An intentionalist or originalist interpretation of the Emoluments Clause

  This clause was one way of accomplishing the Founders' main objective: creating a limited federal government with checks and balances. There are two primary intentions. First, it was a means to prevent corruption by disallowing a member of Congress from creating or increasing the pay of an office that he intends to be appointed to. Second, it provides a disincentive for members of Congress to expand the federal government, because there would be hesitation before creating offices or increasing their benefits if it automatically disqualified a legislator from assuming the position.

The “Saxbe fix” would also not rectify the issue in this situation. Even if we accept the fact that the fix would eliminate any means of corruption (which is not necessarily true), it indeed undermines the second intent of the clause by granting exceptions to legislators. No longer would there be hesitation on behalf of a member of Congress to create a new office or increase its benefits if he can be exempted from the Constitution’s prohibition and be appointed anyway.

There is only one other way to interpret this clause, and that is to redefine its meaning, which my colleague has tried to do. We must remember that seasoned lawyers wrote this document. They intended for the words within it to be followed strictly and retain the same meaning from the time they were written to the present so that they can provide an objective standard and framework for the government they created and the people it served. For if different people at different times interpreted the document differently (especially for their own political ends) the Constitution would lose whatever significance and value it had to begin with. This is why, no matter how small the violation is, ignoring the smallest detail within the Constitution threatens the integrity of document as a whole.

To conclude, whether through the lens of literalism (which my colleague offers no contrary evidence) or through intentionalism (which necessitates us looking at all, not one, intention), the Emoluments Clause clearly prohibits Senator Clinton from being confirmed to the post. In good conscience and fulfilling our civic duty, there are but three conceivable courses of action we could take:

 1). Repeal her nomination

2). Amend the constitution

3). Make the argument that this circumstance is of supreme urgency and necessity to the survival of the Union. (And I think only person who would argue this is Bill Clinton.)

  My colleague can try to rationalize his unconstitutional shortcut however he’d like and create fanciful analogies to that end, but ultimately, there is no a way to escape the will of the most important and fundamental legal text known to our nation. If the Senate confirms Hillary Clinton as Secretary of State, it will be the fourth time in American History where political expediency trumped our responsibility, both to ourselves and to future generations, to do what is right in preserving, protecting and upholding the Constitution of the United States.

  As an aside: it was a pleasure to hash through this debate with Mr. Golden (on this blog, and off this blog) over the past few days. I look forward to hearing what you think. 

Convention Updates--12.08.08

The Summit team wanted to share with all our readers recent updates to Constitutional Convention: Building Democracy 2.0.

First, we launched an innovative web platform this week, www.democracyupgrade.com, where users can engage an interactive online community in a discussion about upgrading American democracy. Among the features is a Wiki with the text of the Constitution which users are invited to edit. Participants can exchange ideas about building grant summit teams for projects, collaborate on post-election issues, and are invited to submit YouTube videos proposing upgrades to the Constitution.

“Using Web 2.0 platforms including Facebook, Twitter, and MySpace, we are providing a platform to engage in a discussion about Democracy 2.0 before the Constitutional Convention begins,” said Nick Troiano, 19, Mobilize.org Technology Officer. “All content submitted and discussed on the site will be integrated in deliberative dialogue sessions during the Convention,” noted Troiano.

Second, in addition to exciting technology, both Generation WE and 18 in ’08 have joined the host of sponsors for the Convention. 18 in ’08, led by 19 year-old David Burstein, will be filming a documentary of the Convention, collecting video from Convention participants and working to get participants flip cameras to document their post-election experiences.

"Now that voters have made their voices heard, the Constitutional Convention provides a unique post-election opportunity for young voters to remain engaged in democracy," said National Constitution Center President and CEO Joseph M. Torsella. "We are proud to host this event at the Constitution Center in Historic Philadelphia, the birthplace of democracy."

Constitutional Convention: Building Democracy 2.0 will give Millennials the opportunity to sustain the election momentum they created to ensure that the civic and political dialogue around major issues affecting them continues and results in action that causes systemic and lasting positive change.

Constitutional Consternation, pt. 2

This is the fourth post in a blog deliberation on the current Constitutional issue before us, regarding Senator Hillary Clinton's nomination to be 67th Secretary of State (see below, and previous post). The discussion will bounce between Mobilize staff (whose opinions are their own), and we invite you to join in! Add comments or email your opinion to christina@mobilize.org.

By Chris Golden

And then again perhaps it is too much for my colleague to look beyond his isolated prism of Constitutional interpretation, looking solely and singularly at the text of a document produced, as Justice Holmes said, at the creation whereas its life has been written, defined and molded through the course of the preceding two centuries. If we look at the fundamental premise of the constitutional quandary that we are debating, we find the vision and the framework which guides us in our scholarly pursuit: that the Constitution works. It still works. It has worked. And it will work. We know this from our history, from an examination of our country today and from a belief embedded within the ethos of our citizenry that our Constitution guides us, like a lighthouse does a ship, a beacon does a plane and, perhaps the most apt analogy, as a shepherd does a sheep. But the sheep do not represent us, Americans, as we exist today. Instead, the sheep are reflective of our collective, compounding, history that has seen the Union through times of both peril and prosperity. Each time, we add more to our flock—becoming increasingly diverse and unique. We learn from these additions and as we gain wisdom the shepherd (the Constitution) moves us in the appropriate direction. We do not stay on the same path that we were led to begin on, we move and change the arrangement of our flock of sheep to fit each of the different circumstances that we encounter. When flowing rapids raced through the middle of our flock, dividing us in half and wiping away those who encountered the mighty forces of the water, our fundamentals were weakened, but they were not destroyed. The shepherd allowed extraordinary forces to come and calm the rapids and then to rebuild the flock. When we continued on our path we were different than we were before, in terms of both our flock and our foundation, for that there is no question. It is not simply enough to say that we endured but we endured because we bended and made the changes that we need for preservation and we did so in the most efficient way possible.

Another example is to equate interpreting the Constitution to two people sitting in a room looking at a red piece of paper held up in front of their eyes. Both are asked what color they see. One announces confidently that he sees red. The other, equally confident, declares that he sees purple. How is this possible? While the man seeing red is correct in that he is looking only at the color in front of him, the man seeing purple is equally correct because he examined the totality of the room and saw that the wall behind the paper was blue, making it appear purple in his eyes. Both acknowledge that the paper is red but both see different things.

That is the simple context of the discussion that my esteemed colleague and I are having. One of us sees only the literal interpretation of the third section of Article 1 Section 6. My examination is not limited to the words in the copy of the Constitution that sits on my bed stand but rather to the application of these words to the specific scenario of the appointment of Senator Clinton as Secretary of State. Although I understand, for it is easy to see, my colleague’s literal reading of our Founding Document, I fundamentally disagree with his belief that important contextual elements, namely history, and how it has built the relationship between the Executive and Legislative Branch, and developed the system of presidential appointments, should be ignored.

It is suggested that our debate should be about “what the Constitution really says,” which I find to be ironic for our nation has been built on a debate over the Constitution and its meanings. What it means has become the question before the Supreme Court, indeed every Court, in the land and these decisions have strengthened our country and our Constitution.

It is claimed that there can be no compromise on this issue. But no compromise from what vantage point? Acknowledging that the paper is red while we both see different colors, we are asked to agree that the wall is actually blue, to lend credibility and credence to the other’s argument that he sees purple. It is an issue of no contest. The one who sees red, however, issues an unequivocal objection that he will not agree that the wall is blue because he cannot see it. When the wall returns to a neutral color, so that both men would see red, the one who still sees red objects again, saying that he cannot look up from his paper so he does not know what color the wall is at any point.

What was the framers intent for the Constitution? Was it to only be as it was written in Philadelphia? Was it to be amended at each moment throughout the nation’s history when some element of the document no longer became relevant or some new issue demanded inclusion? (and if so, then why did they make the process of amending purposely difficult?) or did they create a document that was just the beginning, that would guide a young nation through to its prime and that would mold and reflect to fit all circumstances that she would encounter? It is my belief, shared through the chorus of our past history as it is also an invitation to the magnificence of our future, that it is the latter. Our Constitution lives. Our Constitution breathes. Our Constitution molds. Our Constitution grows. Our Constitution upgrades. And as we build Democracy 2.0, our Constitution will build too.

So when we are faced with one of the most minor Constitutional issues, we recognize and accept the premise of its past importance and we acknowledge it using the strength of our principles and the wisdom of our guiding standards, and we mold, and we live, breath and grow. We are not undermining the very purposes of the document itself. We are showing the document’s innate strength and the fortitude of its Writer’s foresight.

Our country has changed through its history and while we accept the premise of some of the provisions within the Constitution as it is currently written, we have reached a point where the premise is no longer applicable, in this situation, at this time. It is not a decision reached not by one, but by totality, and not with malicious objectives, instead those of prudence and expediency. Further, the proposed solution is not one of casualness but one of precedence. Most importantly, the issue at hand is one of atoms and not elements. It is not a freedom that is at stake but a component of a section of an article of a Constitution. If it doesn’t work, and we fix it for this circumstance, does that violate the principles laid out and set forward through the rest of the document, jeopardizing the ability of the Constitution to endure?

My answer is no because I believe it shows a strength larger than just the words in the Constitution itself. My colleague answers yes for reasons that he is previously outlined. This is the issue at hand as we build Democracy 2.0. And that’s the question to be deliberated at the Constitutional Convention.

The Essence of a Constitution

This is the third post in a blog deliberation on the current Constitutional issue before us, regarding Senator Hillary Clinton's nomination to be 67th Secretary of State (see below, and previous post). The discussion will bounce between Mobilize staff (whose opinions are their own), and we invite you to join in! Add comments or email your opinion to christina@mobilize.org.

By Nick Troiano

While I commend my colleague for his thoughtful analysis of the Emoluments Clause and its place in our current society, I would suggest it is not for him, nor I, to decide this question. There seems to be a fundamental misunderstanding of where this particular decision, that of Senator Clinton’s eligibility, actually derives from. It cannot be from the most persuasive among us, nor can it be from the side whose supporters are most plentiful. We must, as the innate nature of the document requires, defer to the actual text of our Constitution. In this case it is clear and unambiguous.

 I extend my apologies if this text is not what my colleague would prefer it to read, but he knows as well as I, there is a process in place to correct that. To call this clause “essentially nullified” and to proclaim the requirements of it are met “if adopted to fit present circumstance,” is to dismiss the role our Constitution is supposed to have in our nation.

 While it may be easy to point to antiquated parts of this document (which ought to be rectified), there is a distinction between language no longer being applicable because of government’s evolution and language that directly contradicts what our government intends to do. In the latter circumstance, we will have failed in our citizen capacities if we are to be complicit in Senator Clinton’s confirmation. The price of liberty is eternal vigilance, right?

I’ve laid out what the Constitution states in my previous post. Since my colleague neither challenges this, nor the fact that Senator Clinton’s confirmation would violate the letter of the clause, the point seems moot. The question, his question, is whether we should heed this conclusion or excuse it for expediency of our current circumstance (I’m paraphrasing). The latter is simply unacceptable.

I cannot stress this point enough: Our debate should not be one of what the Constitution ought say, but what the Constitution indeed says. If we are to operate a democracy contingent on different people interpreting the constitution differently at various times, our most important founding document is reduced to old parchment whose sole purpose is, as the writer himself regrettably suggests, to “remind” us of the author’s “original intent.” I certainly do not want to live in a society where that is what the rule of law is based on. The Constitution is not a reminder; it is the supreme law of the land and should be treated as such. There can be no compromise. If we don’t like it, it is incumbent on us to try to change it through the proper and legal channels.

I will not deny as time goes on and our government and society evolve, which the Founders themselves recognized would happen, the Constitution must change.I welcome those changes. But it is nonsensical and rather dangerous for the interpretation of the same body of words to change instead. As Justice Scalia writes, “To evolve, all you need is a legislature and a ballot box; things evolve as much as you want.”

Why even have an amendment process or hold a Convention at all if we are to be at the mercy of the legislature, or worse, nine lawyers in black robes deciding at what point on the evolutionary timeline we are at and basing their Constitutional interpretations on that?

This current situation involving the Emoluments Clause is a prime example of a circumstance that will test our commitment to upholding the document we, and the entire world, hold in such high esteem. We cannot undermine the very purpose of a written constitution by deciding when and in which circumstances we will obey it to the fullest extent. Not only will that sacrifice the admirable efforts of our Founders in risking life and limb to create such a document, but it also betrays our responsibility to future generations to preserve what is codified within the document for them to enjoy as we and our ancestors have. 

Opinion: Constitutional Consternation

This is the second post in a blog deliberation on the current Constitutional issue before us, regarding Senator Hillary Clinton's nomination to be 67th Secretary of State (see below, and previous post). The discussion will bounce between Mobilize staff (whose opinions are their own), and we invite you to join in! Add comments or email your opinion to christina@mobilize.org.

By Chris Golden

"When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”

The above was written by Supreme Court Justice Oliver Wendell Holmes in a landmark 1920 case asserting the right of the federal government to make treaties over the states. Yet Homes’ interpretation of the Constitution, as a document created as a guide for an infant nation and a framework for its development, has withstood the force of history and now again provides reference for a generation struggling to apply its principles to their vision of a modern democracy.

Article I Section 6 of the United States Constitution states, “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”

On December 01, 2008, President-elect Barack Obama nominated Senator Hillary Rodham Clinton to be Secretary of State, thereby setting into motion a debate over her eligibility under Article 1 Section 6 and a broader discussion about the interpretation of the founding Constitution in this century. So let us look at the whole experience and not merely what was said two hundred years ago.

Scholars have concluded that the Emoluments Clause was put in place to prevent corruption—where a member of Congress would raise the salary for a Cabinet (or other) position and then assume that position, benefiting from their action. It is one of the few provisions in Article I that imposes a prohibition on a member of Congress in what can be seen as an attempt to prevent corruption. And it is interesting that the Founders spent time considering Emoluments while in the same section granting Senators and Representatives immunity from prosecution in cases of treason, felony and breach of peace as well as during their attendance at Congressional sessions. In Article 5, the Constitution grants the right to the Congress to determine its own rules. Clearly, the Founders saw a need to specifically outline this provision as an example of the Separate Powers between the Executive and Legislative branches in an attempt to separate the two and prevent corruption from spreading from one branch to another.

Yet the fathers, and the Constitution itself, could not foresee the intermingling and overlap between the Executive and Legislative Branches as has resulted through the course of the 20th Century. For example, the Congressional Budget Act mandates that the President, as head of the Executive Branch, propose to Congress an annual budget, which then sets into process Article 1 Section 7, “All Bills for raising Revenue shall originate in the House of Representatives.” As such, executive branch officials interact regularly with Congressional oversight committees and federal agencies establish liaisons to the Congress to answer questions regarding their department’s interpretation of the legislation passed by the Legislative Branch. The most obvious example of the increased power of the Executive over the legislative comes in the Congressional War Powers Act and the most visible in the yearly appearance of the President, in person, to a joint session of the Congress to propose his priorities and legislation. Indeed, if the merits of Article 1 Section 6 are to further the separation of the branches, then the modern system proves its near-irrelevance.

Returning to the current issue, a sitting Senator has been appointed to an Executive Office position and the Senator served in that position during the time period in which the pay for the position to which she is being appointed was increased. A literal reading of the Constitution as applied to this situation would result in a conclusion that the Senator is ineligible to serve. And such an interpretation shall be the basis for the following arguments:

1) The appointment was made in circumstances completely contrary to the merits of the existence of Article 1, Section 6. That is, the appointment is not corrupt, was not made on the basis of pay, the Senator had no part in the passage of the pay increase and the increase in pay had no part in the selection of the Senator to the position, and
2) The appointment of the Senator from the legislative branch will in no way damage or violate any Constitutional wall of separation between the office to which the Senator will serve and the position that the Senator previously held, because the modern relationship of the office to which the Senator will hold and the office to which she previously held is one of mutual co-existence and, further, cooperation

Therefore, in light of recognition of the intent of the Constitution to prevent even the seeming conclusion of corrupt cross-branch appointments, it has been proposed that the Constitution, acting through a joint resolution, affirm the Constitutional merits of the Secretary-designee to her position by rescinding the increase in pay that was approved during her Senatorial tenure and restore it to that before she assumed the Office.

Such a proposal, the so-called Saxbe fix, runs concurrently as both historical precedent in its form as a compromise and respectful acceptance of the original intent of the Constitution but its essential nullification in this modern circumstance.

And all of this is being done despite the obviously innocence of the increase in pay, a cost-of-living increase approved, not by the Congress and not subject to even the vote of approval by the Senator in question, but by an across-the-board Executive Order by the President of the United States.

Unlike other provisions of the Constitution, such as the age requirement for a Representative or Senator to be elected to the office, the Emoluments Clause has, through Congressional legislation, expansion of Executive Branch Powers and Judicial interpretation, been made to be an empty relic in a document whose meaning has been interpreted to apply to each compounding episode in the sequence of American history. No longer is the need for its language relevant to the modern relationship between the branches, yet it remains a part of the framework as a reminder of the original intent and concern of the Writers for the sanctity each office and the high standards of each appointed and elected Official.

The Conservative Watchdog Group Judicial Watch boldly proclaimed last week in a press release which attracted them international attention that “Judicial Watch Announces Hillary Clinton Ineligible to Serve as Secretary of State,” thus igniting a debate throughout the Internet blogosphere over the merits and meaning of Article 1 Section 6, the Saxbe Fix, and the Constitution itself. Such an exchange and debate can only be described as healthy, for it should be the purpose of the citizenry to actively engage in the discussion over their Government and its guiding Constitution. Still, it is not Judicial Watch’s responsibility to announce an ineligibility, that responsibility is left to the judicial Power of the United States, vested in one supreme Court with such inferior Courts as the Congress from time to time ordain and establish. Those Courts have outlined the modern co-habitual relationship between the three branches of Government and have used their authorities to establish justice in order to continue to form a more Perfect Union.

In light of the whole experience, we can proclaim that the Constitution does indeed work. The intent of the Writers is acknowledged, if adopted to fit a present circumstance. The interpretation and application is not done by one President, one Court or one Congress. Rather it is a compounding precedent established through the inter-workings of a Government working within its rightful powers. And it bodes well for the future continuity of the Union, upheld by a series of strong principles proposed and arranged in a Hall in Philadelphia that have suggested, guided and shepherded a nation through its development from an organism to a whole body.

Opinion: Clinton Confirmation Unconstitutional

This is the first post in a blog deliberation on the current Constitutional issue before us, regarding Senator Hillary Clinton's nomination (see below). The discussion will bounce between Mobilize staff (whose opinions are their own), and we invite you to join in! Add comments or email your opinion to christina@mobilize.org. 

By Nick Troiano

Our Constitution is the absolute bedrock of our Democracy. It was intended to be an enduring document that defined the social contract between citizen and state while establishing the framework of our government. Its contents are not suggestions, not just mere words to follow when expedient and ignore when inconvenient. More than the leaders that come and go throughout time, the text of the Constitution must be the ultimate authority. 

With this understanding, and no other partisan motivation whatsoever, I believe Article 1, section 6 of the Constitution should be strictly applied to Senator Clinton's nomination. I believe that we need to reverse the legislative precedent set in the past and uphold the Constitution as our Founders wanted, and as each elected official pledged to do upon taking their oath of office. 

The logic behind concluding Senator Clinton is ineligible is simple: If, according to the Constitution, a member of Congress cannot be appointed to an office whose emoluments (which includes salary) "have been encreased" during which time he or she was a member, than Hillary Clinton, United States Senator at the time when the salary of Secretary of State was increased by Executive Order, cannot be appointed. A straightforward reading of the text will produce such a conclusion, which needs not further examination or explanation. Her potential confirmation, under the current circumstance, would be a direct violation of the Constitution. 

Some argue that if we were to repeal the salary increase, it would cure this Constitutional issue (this is the so-called "Saxbe fix" deriving its name from the Nixon era when it was first used). That is not so. No matter what happens after the salary has increased, nothing will change the facts that: 1). the "emoluments ...shall have been encreased" (meaning that they were at one point in time higher than another) or that 2). she was a member of Congress during said time. There is no going around how the Constitution reads. There is no need to search for intention when the clause is as unambiguous and precise as this one is. House Democrats knew this when the Saxbe fix was first used by President Taft; they realized after the pay raise became law, no subsequent action could undo the effect of the clause. The same can be applied today. Thus, the only legal remedy would be to amend the Constitution or to suspend the Senator Clinton's appointment.

This literal interpretation applies to other prohibitory clauses of the Constitution. For example, candidates for President need to be 35 years old. Congress cannot just waive that provision for office. All analogies fall short of course, but one comes close: Dean William Lorenson compared the clause to the law of automobiles having to stop at a stop sign. The spirit of the law may be that cars should stop so as to not enter the intersection when another car is coming to avoid an accident. But if a car blows a stop sign because it is early in the morning and there are no other cars on the road, that would not be a legal defense for a ticket. In other words, the literal interpretation of laws, regardless of their spirit, are already applied in every day life. 

Yet, I do not believe a person arguing my position needs to concede the idea that the Saxbe fix is consistent with the spirit of the clause. Constitutional Law Professor Eugene Volokh, in his law review, states that a secondary purpose of the clause was to "limit the size, importance, and reach of the federal bureaucracy" by providing a disincentive to members of Congress to raise the benefits of civil offices or create new ones. In other words, members of Congress who may seek higher positions in government would be less likely to vote for pay raises and create new positions if that barred them from assuming those offices. This is a perfectly logical intent for the clause, and would be completely undermined, not supported, by the Saxbe fix, which would grant exceptions to members of Congress.

The most dangerous thing we can do as a democratic society is disregard our Constitution when it is expedient to do so or when we happen disagree with it. The constitution has a clear process to be amended, and that process is what must be used when we want to change it. We cannot simply mute what the law says when it is blatantly clear how it is to be enforced. We cannot be at the whims of the majority, whoever they are and whenever they hold power. This is why honoring our Constitution is so vital, even if it is viewed as a nuisance and even when we use such words as "technicality."

I actually think Senator Clinton ought to be able to assume the position (save for this Constitutional dilemma) if the President and the Senate deem so. But I realize it is improper and against the wise judgement of our Founders to have an evolving interpretation of the document that is supposed to mean the same to one generation as it does another. So while I am very opposed to her nomination, I would support a Constitutional Amendment that limits the clause from being applied when salaries or other benefits are raised by the Executive Branch, not Legislative, as is the current case. 

President Reagan showed restraint and appreciation for the Constitution when he passed up Senator Hatch when he filled a Supreme Court vacancy during his administration specifically because he deemed Hatch to be ineligible based on this clause. He did not go the route of a legislative remedy (untested by our Courts) as Taft, Nixon and Clinton did. That is the type of judgement and leadership necessary in a President who takes an oath to preserve, protect and defend the Constitution of the United States. 

So when our President lacks this judgement, and when our Congress lacks the courage to stand up to him, it is We the People's job to hold them all accountable and ensure that our Constitution endures to next generation as significant and powerful a force as it was intended to be 223 years ago. That includes ensuring our next Secretary of State is Constitutionally eligible to hold the position. 

Constitution in Limelight after Clinton Nomination

As the Constitutional Convention nears, it seems the two century old document is receiving a bit more attention lately, following President-Elect Obama's nomination of Hillary Clinton as Secretary of State. Some experts and organizations, such as Judicial Watch, have declared that Senator Clinton is Constitutionally ineligible to hold the post. 

Why? Article 1, Section 6 of the Constitution: "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time." 

Clinton was a Senator during the time in which the salaries for Cabinet posts were raised, leading some to conclude that she therefore cannot be confirmed under the Constitution to the position. 

Yet others point to the fact that such a situation has been remedied in the past during similar situations. This notably occurred under President Nixon when the Congress repealed the pay raise for the Attorney General to allow Senator William Saxbe to assume the position. However, such a legislative remedy (now known as the "Saxbe Fix") is not contained within our founding document.

Few expect this challenge to actually prevent Senator Clinton from becoming the next Secretary of State. This drew international criticism from Gerald Warner of the Telegraph who recently wrote: 

"So, after the founding fathers burned so much midnight oil over that document, it turns out to be inaccessible, unenforceable and irrelevant. Proponents of a written constitution for Britain might take note of this situation. If we did have a written constitution for the United Kingdom, can anybody think of a government that might make a habit of circumventing it? Answers on a postcard..."

Will this be a matter of timely consideration by Constitutional Convention 2.0? We shall find out in about one month. 

Participant Packet Now Available

If you are attending the summit or are interested in learning more about it, please download the participant packet available here. 

What, if Anything, Might Galvanize the Public's Demand for Change?

Check out this article from this morning's Wall Street Journal asking that provocative question and marking the 75th Anniversary of the 21st Amendment, which repealed the bans during prohibition.

Ways to Participate Before the Summit

Here are a few ways you can be participating in the Constitutional Convention summit right now, even if you do not plan on attending.

 

1)  Follow us on Twitter. Share your thoughts on an upgraded democracy using our hash tag "#ccsummit".

2)  Follow the Convention blog, and embed our widget in your own. Want to blog for us? Send us an e-mail.

3)  Join our Facebook and MySpace groups to meet other participants and the Summit Team.

4)  Subscribe to our YouTube Channel and watch videos about Democracy 2.0.

5)  Edit the Constitution on the Convention Wiki, as well as share travel information and connect with other projects.

6)  Check out Mobilize.org's photos from past summits on Flickr. Upload your own photos from the conference using the tag "ccsummit".

7)  Upload your own YouTube video, one minute or less, introducing yourself as a delegate to the modern constitutional convention. Be sure to include an idea you have to upgrade our democracy or constitution. Then e-mail us the link!

8)  Donate your status on Facebook and Twitter with the link to the summit site: http://tinyurl.com/ccsummit.

What Is Democracy 2.0?

Just 36 Days to Go Before Constitutional Convention: Building Democracy 2.0 at the National Constitution Center in Philadelphia.

But what exactly is Democracy 2.0?

Democracy 2.0 developed out of the ideas that uniquely resonate with the Millennial generation its view of governance and democratic participation: upgrade vs. revolution, open vs. closed, user-generated vs. consumed.

Released in May 2008, Mobilize.org’s Democracy 2.0 Declaration was designed to call attention to the ways that our democratic process and institutions are properly serving and failing to serve our nation. The Declaration was written by young leaders after months of polling and discussions with the belief that the Millennial Generation is uniquely positioned to help improve our country as a major source of energy, skill and innovation. Democracy 2.0 is designed to increase civic participation among members of the Millennial Generation (targeting the 18-30 age group) and declares boldly, “It’s Our Democracy. It’s Time to Act.”

What does Democracy 2.0 mean to you? Watch the video below and then join in the coversation here on the Blog or through our other social media sites.

Summit volunteer opportunity

Become a member of Mobilize.org’s The Constitutional Convention: Building Democracy 2.0 Summit Team

We are looking for individuals to work on an exciting civic engagement project, a Constitutional Convention for the 21st Century!

Mobilize.org’s The Constitutional Convention: Building Democracy 2.0 Summit, taking place January 9-11, 2009, in Philadelphia, will ask Millennials around the country to develop innovative ideas for harnessing the excitement and synergy that has emerged from the 2008 presidential election and the campaigns. Millennials will get a chance to discuss election best practices, weigh in on Mobilize.org’s theory of change, Democracy 2.0, and revisit the United States Constitution, engaging in a comprehensive discussion on the future of civic engagement.

Team members can generalize; working on all parts of the Democracy 2.0 campaign, or can request to work on specific pieces, including the following:

• Media Outreach
• Technology
• Public Relations and Communication
o Online and Real Time
• Event Logistics
o Recruiting Experts and Guest Speakers
o Creating Content for the event
o Working with potential participants
o Outreach with national partners
• Fundraising & Development

Number of Hours per Week: 10-20

Duration: Beginning now through January 20, 2009.

Qualifications:
• Experience with politics, communication, journalism, or student organizing preferred.
• Must be willing to commit to hours.
• Please contact Mobilize.org for more details.

Compensation: No monetary compensation, but opportunities to attend major event, meeting celebrities and elected officials. Great networking resource.

Contact Information: Please send a resume ATTN: Ana Maria Rodriguez at anamaria@mobilize.org. If you have additional questions, please do not hesitate to call us at 866.MOBILIZE.

Building Democracy Begins in Philadelphia

Just 37 days to Go before Constitutional Convention: Building Democracy 2.0 at the National Constitution Center in Philadelphia, PA. Registration is now open, so be sure to visit our website at www.democracyupgrade.com where you can sign up, get connected with other participants, learn about our vision for Democracy 2.0, edit a version of the Constitution on a wiki and learn how Mobilize.org and our partners will be integrating Web 2.0 technology into what will be a groundbreaking gathering of Millennials, just ten days before President-elect Obama is inaugurated, to discuss and deliberate on the issues facing our Generation.

Our location will be just 3 blocks away from where delegates gathered in 1787 to produce the document which would guide our nation through the next two centuries and continues to guide to this day.

But, Democracy is an unfinished project. It's time we upgrade.

So it is appropriate that members of the Millennial Generation, credited for our high levels of civic engagement and involvement in the 2008 elections, return to Philadelphia to have a discussion about the role of the Constitution in this new Century. Further, the Convention will allow participants to discuss how the Constitution fits in our framework for Democracy 2.0, the agenda put forward by Mobilize.org to reflect the new role that Millennials will play in American governance.

But just like what began in Philadelphia spread throughout the United States, and inspired nations around the world, so too will Democracy 2.0. The Constitutional Convention is the kick-off to Mobilize.org's efforts in 2009 to discuss, act on and harness the incredible levels of civic engagement that Millennials built through the 2008 elections using both traditional grassroots organizing and new online social media.

Next up: January 20th in Washington, DC and around the country as we bring a discussion of Democracy 2.0 to the 56th Quadrennial Presidential Inauguration. Look for more details soon for how "A New Birth of Freedom" and "Democracy 2.0" will combine through Web 2.0 in Washington, DC and around the country!

Join our discussion. On Facebook. On Twitter. On our Blog. Ask questions. Propose solutions.

It's our democracy, it's time to act.

Launch of Convention Website

We Want YOU to Upgrade OUR Democracy!

Join Mobilize.org, along with Declare Yourself, the National Constitution Center, Change.org, the National Conference on Citizenship, and Why Tuesday?,” for

CONSTITUTIONAL CONVENTION: BUILDING DEMOCRACY 2.0
January 9-11, 2009 at the National Constitution Center in Philadelphia.

Constitutional Convention: Building Democracy 2.0 gives YOU the opportunity to sustain the election momentum YOU created in the 2008 election to ensure that the civic and political dialogue around major issues affecting YOU continues and results in action that causes systemic and lasting positive change.

Get the opportunity to use interactive keypad voting technology and other technology-savvy methods to engage in interactive dialogue about the election, Democracy 2.0, and building your influence.

Compete for funding over the three-day summit, and receive up to $10,000 in grants.

Visit the Convention website at http://www.democracyupgrade.com for more details.

Download the Participant Packet at http://tiny.cc/0ydwC.

For further information, contact the Summit Team at democracyupgrade@mobilize.org.