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.