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.