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.