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that lives and breathes as it guides throughout American history, a prerequisite that allows for sections that become outdated and not applicable in certain circumstances to have the force of law applied in a different way than at other circumstances.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.