Marking Fred Korematsu’s Birthday and Legacy

If you used Google today, you saw that today’s Doodle was of Fred Korematsu, who was born on January 30, 1919 in Oakland, California.

In the climate of fear surrounding World War II, President Franklin D. Roosevelt authorized the internment of tens of thousands of American citizens of Japanese ancestry and resident aliens from Japan. His Executive Order 9066 (February 19, 1942) read –

Executive Order No. 9066

The President

Executive Order

Authorizing the Secretary of War to Prescribe Military Areas

Whereas the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (U.S.C., Title 50, Sec. 104);

Now, therefore, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. The designation of military areas in any region or locality shall supersede designations of prohibited and restricted areas by the Attorney General under the Proclamations of December 7 and 8, 1941, and shall supersede the responsibility and authority of the Attorney General under the said Proclamations in respect of such prohibited and restricted areas.

I hereby further authorize and direct the Secretary of War and the said Military Commanders to take such other steps as he or the appropriate Military Commander may deem advisable to enforce compliance with the restrictions applicable to each Military area hereinabove authorized to be designated, including the use of Federal troops and other Federal Agencies, with authority to accept assistance of state and local agencies.

I hereby further authorize and direct all Executive Departments, independent establishments and other Federal Agencies, to assist the Secretary of War or the said Military Commanders in carrying out this Executive Order, including the furnishing of medical aid, hospitalization, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities, and services.

This order shall not be construed as modifying or limiting in any way the authority heretofore granted under Executive Order No. 8972, dated December 12, 1941, nor shall it be construed as limiting or modifying the duty and responsibility of the Federal Bureau of Investigation, with respect to the investigation of alleged acts of sabotage or the duty and responsibility of the Attorney General and the Department of Justice under the Proclamations of December 7 and 8, 1941, prescribing regulations for the conduct and control of alien enemies, except as such duty and responsibility is superseded by the designation of military areas hereunder.

Franklin D. Roosevelt

The White House,

February 19, 1942.

At age 23, Fred Korematsu refused to go to the government’s incarceration camps for Japanese Americans. As a result, he was arrested and convicted of defying the government’s order. He appealed his case all the way to the United States Supreme Court.

In 1944, the Supreme Court ruled against him, arguing that the incarceration was justified due to military necessity. The Court held in Korematsu v. United States

We uphold the exclusion order as of the time it was made and when the petitioner violated it.Cf. Chastleton Corporation v. Sinclair,264 U.S. 543, 547; Block v. Hirsh,256 U.S. 135, 155. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. Cf. Ex parte Kawato,317 U.S. 69, 73. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities, as well as its privileges, and, in time of war, the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.

The Court’s decision in Korematsu has been generally condemned by historians and most other Americans. The decision has never been explicitly overturned by the Supreme Court. A report issued by Congress in 1983, however, declared that the decision had been “overruled by the court of history.” The Civil Liberties Act of 1988 contained a formal apology, as well as provisions for monetary reparations, for the Japanese Americans interned during WWII.

In 1998, President Bill Clinton awarded Fred Korematsu the Presidential Medal of Freedom.



The Federal Courts of the Second Circuit Launch a Civic Education Initiative: Justice for All

Below is more information about the Second Circuit’s Justice for All initiative. I’d like to applaud Chief Judge Robert Katzmann for launching this civic education initiative at a time when there is a critical need for greater civics and constitutional literacy.

The federal judiciary is one of the three branches of the national government. It seeks to provide the fair and effective administration of justice for all persons and interests, regardless of race, color, creed, gender, or status. Federal courts and their state court counterparts provide a means for settling disputes peacefully, and help to foster democratic governance, consistent with the Constitution’s goals of “justice” and “domestic tranquility.” Those who founded our government recognized the critical importance of an independent national judiciary with a limited but essential role.

Chief Judge Robert A. Katzmann of the United States Court of Appeals for the Second Circuit launched the circuit-wide civic education initiative — Justice For All: Courts and the Community — to increase public understanding of the role and operations of the courts and bring courts closer to the community. Judge Victor Marrero of the United States District Court for the Southern District of New York co-chairs the project. The initiative involves the federal courts of the Second Circuit, which comprises the states of Connecticut, New York, and Vermont. We do not seek to put courts on a pedestal. Rather, our purpose is to help increase points of contact between the courts and the communities we serve, to facilitate mutual understanding, and help to ensure that the courts are accessible and effective public institutions. In our activities, we seek the participation of the various communities in which courts function. To that end, our mission encompasses two principal approaches: to bring the communities to the courts, and to bring the courts to the communities. In particular, we seek to encourage, develop, and support programs in civic education for all members of the public, especially students, and to engage the community through outreach efforts. With the active participation of members of the Bar and community organizations working through several committees, our activities include:

  • hosting field trips to the courthouse for schools and community organizations to observe court proceedings and to meet with judges and court staff;
  • holding moot courts and mock trials for students;
  • developing educational resources for teachers about the law and justice system; developing learning centers;
  • creating library labs for students;
  • coordinating Constitution Day/Citizenship Day programs;
  • supporting essay contests;
  • sponsoring adult education programs in such areas as financial literacy;
  • fostering jury service; and
  • developing a speakers bureau whereby judges and members of the Bar visit the schools and community organizations to discuss the work of the courts.

January 23: A Day Commemorating the Ratification of Two Constitutional Amendments

Both the 20th and 24th amendments were ratified on January 23.

The 20th Amendment was ratified on January 23, 1933, and reads –


The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.


The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.


If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.


The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.


Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.


This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

The 24th Amendment was ratified on January 23, 1964 and reads –


The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.


The Congress shall have power to enforce this article by appropriate legislation.

The Constitution and the Inauguration of the President


Prior to the enactment of the 22nd Amendment, ratified in 1933, a newly elected president was not sworn in until the March following the election. The 22nd amendment moved Inauguration Day to January 20 at noon. The 22nd amendment reads –

Section 1. The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day….

Article II, Section 1, Clause 8, the Oath of Office clause states –

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: — “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” (Emphasis added)

The Chief Justice of the United States Supreme Court has historically administered the oath of office, although this is not required by the Constitution. Chief Justice John Roberts will administer the oath to president-elect Trump tomorrow afternoon.

Different Does Not Mean Less: My Eulogy for My Mentally Disabled Uncle

Editorial Note: My Uncle Steven Silverbrook passed away unexpectedly on Saturday, January 15, 2017, at the age of 58. Steve had Tourette Syndrome, and, though never formally diagnosed, likely fell somewhere on the Autism spectrum. Below is the eulogy I delivered at his funeral yesterday. I share this with the hope that its message – different does not mean less – reaches those who are, know, or love someone with a mental disability.


(This photograph was taken after Uncle Steve and I read the Constitution together)


During this past holiday season, while Uncle Steve and I were eating lunch together, in the midst of a conversation about a host of other topics, Steve turned to me with a very serious look on his face and asked – “Why do you think I’m still here? There must be a reason I’ve survived so many health scares over the last several years?” I was unprepared to reply, and as I fumbled for an adequate answer to his question, Steve moved on to another topic. And, so, I’d like to spend this morning answering Steve’s question.

For me, Uncle Steve’s purpose was to demonstrate to this family that different does not mean less, and his larger mission was for the members of this family to go forth and share that message with others.

Looking back, I can remember the precise moment Uncle Steve changed how I view people who are different, who don’t fit the mold. Cheryl and I were about 12 or 13 years old at the time, and we went to a shopping mall with Uncle Steve. Steve, as you all know, was a large man, and had a tendency to grimace and would occasionally have vocal outbursts in public places. I watched as some of the passerbys stared judgmentally at Uncle Steve or laughed or whispered. The first feeling I had was embarrassment, then indignation. I remember feeling angry that people were judging Uncle Steve solely based on his physical appearance and vocal tics; not on the beautiful human being he was on the inside. Then and there, I decided that I would never be like the other people at the shopping mall that day, and I would always stand proudly beside my uncle. I know Cheryl and Sean feel the same way.

Through the example of our parents and because of our love for Steve, we also learned that even though it is sometimes stressful, and, yes, even inconvenient to help and support those who are struggling with life, it is important to give your time and your love to those in need. And though he often asked for things – and he did like things – especially cars, he owned 43 of them, and diecast model cars, he owned over 400 – if you really probed him, especially toward the end of his life, Steve would tell you that what he wanted most was: time and attention.

And though, as all humans, we often fell short in this regard, Steve was always there pushing us (sometimes, perhaps, unwittingly) to be more patient, more compassionate, and more understanding.

And so even though Steve was different and did struggle with his life, and his health, he made an impact. Not just for our immediate family, but for all those who he came in contact with. Everyone in this room undoubtedly has a story or has heard a story that is so uniquely, entertainingly Steve.

Steve loved music and shared that love with those around him. Whether it was one of his unique original songs or raps or such classics – as Billy Don’t be a Hero or really anything by Whitney Houston or Mariah Carey – Steve was able to use music to entertain and even disarm those around him.

One of my favorite stories comes from Steve’s childhood when he apparently jumped on the lunchroom table and started singing the Crocodile Rock at the top of his lungs. Years later, when Steve accompanied me and Cheryl and some of our friends to a Dave Matthews Band concert, Steve was able to whip up the crowd by chanting “We want Ants” (one of Dave’s iconic songs). He got the whole audience to join in and Dave came out and played Ants as an encore. He made an impact.

Steve loved very deeply. He was a lover of animals, especially his 4 cocker spaniels – Sasha, Vodka, Winston and Caesar. I really do believe he cared about every person he met. Many of our childhood friends had the opportunity to get to know Steve over the years. He remembered every single friend who ever got into his car with us, and, every time I visited with him – including this past Wednesday – he would rattle through the list of names and ask me how everyone was doing. After my report, he would tell me how proud he was of “his kids,” and, in his typical cheeky way, he would claim some credit for the success of his nieces and nephew and their network of friends. In the days since Steve’s death, many of these friends have reached out to share their favorite memories of Steve. He made an impact.

I have the privilege of knowing that Steve’s deepest love and devotion was reserved for his two nieces and nephew. Steve really came into our lives shortly before my parents divorced and he proved instrumental in helping us navigate split custody arrangements. Steve drove us everywhere – to and from school, to and from different activities and friends’ houses, and, perhaps, most importantly, he would come to get us whenever we needed to escape a difficult situation. During that period in our lives, Steve was much more than our driver, he was also a teacher – teaching all three of us how to drive – a confidant, and our friend. And, in turn, we were his friends, confidants, and also teachers – teaching Steve anything from math and spelling to Jazzercise. It goes without saying, he made an impact.

In the last conversation Steve had with my dad the night before he passed away, Steve told my dad that even though they frequently bickered (as siblings often do) he loved my dad. My dad said, “I love you too” and went to sleep. My last words to Steve several days prior were also “I love you too.” Steve’s life was difficult and his death was sudden, but I believe in the last moments of his life, he knew that as a brother and uncle, he was loved.

My one regret, is that you seldom get the chance to share just how much a person means to you when they are alive. If I had it all to do all over again, I would have written this eulogy when Steve was alive and shared it with him, so that when he would ask me why he was still here, I could very clearly tell him why.

I only hope that the meaning that perhaps eluded Steve in life is found in his untimely death. Steve made me a better woman and I hope that in continuing to share his story, he will help make all of us better and more compassionate people. And, in that way, Steve can be as the title of one of his favorite songs – evergreen.

Thank you.



On January 14, 1784, the Continental Congress Ratifies the Treaty of Paris, ending the Revolutionary War



On January 14, 1784, the Congress ratifies the Second Treaty of Paris, ending the War for Independence. The Treaty was signed on September 3, 1783.

Congress’ assent was required for the Treaty to take effect, and so delegates were called to convene at Annapolis, Maryland, which was the nation’s capital in November 1783. The Treaty stipulated that Congress approve and return to the document to England within 6 months of being signed. Per the terms of Article IX of the Articles of Confederation –

The United States in Congress assembled shall never . . . enter into any treaties or alliances, . . . unless nine States assent to the same[.]

9 of the 13 states were required to be present in Congress in order to proceed. It would take nearly 6 weeks for enough members to assembled to hold the vote. Upon the arrival of Richard Beresford of South Carolina in Annapolis, a quorum was reached, and a total of 23 members from nine states unanimously voted to ratify the treaty.Congress then ordered “That a proclamation be immediately issued, notifying…the states of the union” that the Treaty had been signed.

The treaty is known as the “Second” Treaty of Paris, because the Treaty of Paris was also the name of the agreement ending the Seven Years’ War in 1763.

John Adams, Benjamin Franklin, and John Jay served as the American negotiators for the United States. Their masterful negotiations ensured that the treaty included two key provisions – (1) British recognition of U.S. Independence; and (2) the delineation of the boundaries that would allow for American western expansion.

Despite the Treaty, there were a number of unresolved issues that confronted both the United States and Great Britain. The two largest issues were outstanding war debts and the British failure to abandon their western forts as promised.

The full text of the Treaty of Paris is below –

The Definitive Treaty of Peace 1783

In the Name of the most Holy & undivided Trinity.

It having pleased the Divine Providence to dispose the Hearts of the most Serene and most Potent Prince George the Third, by the Grace of God, King of Great Britain, France, and Ireland, Defender of the Faith, Duke of Brunswick and Lunebourg, Arch- Treasurer and Prince Elector of the Holy Roman Empire etc.. and of the United States of America, to forget all past Misunderstandings and Differences that have unhappily interrupted the good Correspondence and Friendship which they mutually wish to restore; and to establish such a beneficial and satisfactory Intercourse between the two countries upon the ground of reciprocal Advantages and mutual Convenience as may promote and secure to both perpetual Peace and Harmony; and having for this desirable End already laid the Foundation of Peace & Reconciliation by the Provisional Articles signed at Paris on the 30th of November 1782, by the Commissioners empowered on each Part, which Articles were agreed to be inserted in and constitute the Treaty of Peace proposed to be concluded between the Crown of Great Britain and the said United States, but which Treaty was not to be concluded until Terms of Peace should be agreed upon between Great Britain & France, and his Britannic Majesty should be ready to conclude such Treaty accordingly: and the treaty between Great Britain & France having since been concluded, his Britannic Majesty & the United States of America, in Order to carry into full Effect the Provisional Articles above mentioned, according to the Tenor thereof, have constituted & appointed, that is to say his Britannic Majesty on his Part, David Hartley, Esqr., Member of the Parliament of Great Britain, and the said United States on their Part, – stop point – John Adams, Esqr., late a Commissioner of the United States of America at the Court of Versailles, late Delegate in Congress from the State of Massachusetts, and Chief Justice of the said State, and Minister Plenipotentiary of the said United States to their High Mightinesses the States General of the United Netherlands; – stop point – Benjamin Franklin, Esqr., late Delegate in Congress from the State of Pennsylvania, President of the Convention of the said State, and Minister Plenipotentiary from the United States of America at the Court of Versailles; John Jay, Esqr., late President of Congress and Chief Justice of the state of New York, and Minister Plenipotentiary from the said United States at the Court of Madrid; to be Plenipotentiaries for the concluding and signing the Present Definitive Treaty; who after having reciprocally communicated their respective full Powers have agreed upon and confirmed the following Articles.

Article 1st:
His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and Independent States; that he treats with them as such, and for himself his Heirs & Successors, relinquishes all claims to the Government, Propriety, and Territorial Rights of the same and every Part thereof.

Article 2d:
And that all Disputes which might arise in future on the subject of the Boundaries of the said United States may be prevented, it is hereby agreed and declared, that the following are and shall be their Boundaries, viz.; from the Northwest Angle of Nova Scotia, viz., that Angle which is formed by a Line drawn due North from the Source of St. Croix River to the Highlands; along the said Highlands which divide those Rivers that empty themselves into the river St. Lawrence, from those which fall into the Atlantic Ocean, to the northwesternmost Head of Connecticut River; Thence down along the middle of that River to the forty-fifth Degree of North Latitude; From thence by a Line due West on said Latitude until it strikes the River Iroquois or Cataraquy; Thence along the middle of said River into Lake Ontario; through the Middle of said Lake until it strikes the Communication by Water between that Lake & Lake Erie; Thence along the middle of said Communication into Lake Erie, through the middle of said Lake until it arrives at the Water Communication between that lake & Lake Huron; Thence along the middle of said Water Communication into the Lake Huron, thence through the middle of said Lake to the Water Communication between that Lake and Lake Superior; thence through Lake Superior Northward of the Isles Royal & Phelipeaux to the Long Lake; Thence through the middle of said Long Lake and the Water Communication between it & the Lake of the Woods, to the said Lake of the Woods; Thence through the said Lake to the most Northwestern Point thereof, and from thence on a due West Course to the river Mississippi; Thence by a Line to be drawn along the Middle of the said river Mississippi until it shall intersect the Northernmost Part of the thirty-first Degree of North Latitude, South, by a Line to be drawn due East from the Determination of the Line last mentioned in the Latitude of thirty-one Degrees of the Equator to the middle of the River Apalachicola or Catahouche; Thence along the middle thereof to its junction with the Flint River; Thence straight to the Head of Saint Mary’s River, and thence down along the middle of Saint Mary’s River to the Atlantic Ocean.  East, by a Line to be drawn along the Middle of the river Saint Croix, from its Mouth in the Bay of Fundy to its Source, and from its Source directly North to the aforesaid Highlands, which divide the Rivers that fall into the Atlantic Ocean from those which fall into the river Saint Lawrence; comprehending all Islands within twenty Leagues of any Part of the Shores of the United States, and lying between Lines to be drawn due East from the Points where the aforesaid Boundaries between Nova Scotia on the one Part and East Florida on the other shall, respectively, touch the Bay of Fundy and the Atlantic Ocean, excepting such Islands as now are or heretofore have been within the limits of the said Province of Nova Scotia.

Article 3d:
It is agreed that the People of the United States shall continue to enjoy unmolested the Right to take Fish of every kind on the Grand Bank and on all the other Banks of Newfoundland, also in the Gulf of Saint Lawrence and at all other Places in the Sea, where the Inhabitants of both Countries used at any time heretofore to fish. And also that the Inhabitants of the United States shall have Liberty to take Fish of every Kind on such Part of the Coast of Newfoundland as British Fishermen shall use, (but not to dry or cure the same on that Island) And also on the Coasts, Bays & Creeks of all other of his Brittanic Majesty’s Dominions in America; and that the American Fishermen shall have Liberty to dry and cure Fish in any of the unsettled Bays, Harbors, and Creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same shall remain unsettled, but so soon as the same or either of them shall be settled, it shall not be lawful for the said Fishermen to dry or cure Fish at such Settlement without a previous Agreement for that purpose with the Inhabitants, Proprietors, or Possessors of the Ground.

Article 4th:
It is agreed that Creditors on either Side shall meet with no lawful Impediment to the Recovery of the full Value in Sterling Money of all bona fide Debts heretofore contracted.

Article 5th:
It is agreed that Congress shall earnestly recommend it to the Legislatures of the respective States to provide for the Restitution of all Estates, Rights, and Properties, which have been confiscated belonging to real British Subjects; and also of the Estates, Rights, and Properties of Persons resident in Districts in the Possession on his Majesty’s Arms and who have not borne Arms against the said United States. And that Persons of any other Description shall have free Liberty to go to any Part or Parts of any of the thirteen United States and therein to remain twelve Months unmolested in their Endeavors to obtain the Restitution of such of their Estates – Rights & Properties as may have been confiscated. And that Congress shall also earnestly recommend to the several States a Reconsideration and Revision of all Acts or Laws regarding the Premises, so as to render the said Laws or Acts perfectly consistent not only with Justice and Equity but with that Spirit of Conciliation which on the Return of the Blessings of Peace should universally prevail. And that Congress shall also earnestly recommend to the several States that the Estates, Rights, and Properties of such last mentioned Persons shall be restored to them, they refunding to any Persons who may be now in Possession the Bona fide Price (where any has been given) which such Persons may have paid on purchasing any of the said Lands, Rights, or Properties since the Confiscation.

And it is agreed that all Persons who have any Interest in confiscated Lands, either by Debts, Marriage Settlements, or otherwise, shall meet with no lawful Impediment in the Prosecution of their just Rights.

Article 6th:
That there shall be no future Confiscations made nor any Prosecutions commenced against any Person or Persons for, or by Reason of the Part, which he or they may have taken in the present War, and that no Person shall on that Account suffer any future Loss or Damage, either in his Person, Liberty, or Property; and that those who may be in Confinement on such Charges at the Time of the Ratification of the Treaty in America shall be immediately set at Liberty, and the Prosecutions so commenced be discontinued.

Article 7th:
There shall be a firm and perpetual Peace between his Britanic Majesty and the said States, and between the Subjects of the one and the Citizens of the other, wherefore all Hostilities both by Sea and Land shall from henceforth cease:  All prisoners on both Sides shall be set at Liberty, and his Britanic Majesty shall with all convenient speed, and without causing any Destruction, or carrying away any Negroes or other Property of the American inhabitants, withdraw all his Armies, Garrisons & Fleets from the said United States, and from every Post, Place and Harbour within the same; leaving in all Fortifications, the American Artillery that may be therein: And shall also Order & cause all Archives, Records, Deeds & Papers belonging to any of the said States, or their Citizens, which in the Course of the War may have fallen into the hands of his Officers, to be forthwith restored and delivered to the proper States and Persons to whom they belong.

Article 8th:
The Navigation of the river Mississippi, from its source to the Ocean, shall forever remain free and open to the Subjects of Great Britain and the Citizens of the United States.

Article 9th:
In case it should so happen that any Place or Territory belonging to great Britain or to the United States should have been conquered by the Arms of either from the other before the Arrival of the said Provisional Articles in America, it is agreed that the same shall be restored without Difficulty and without requiring any Compensation.

Article 10th:
The solemn Ratifications of the present Treaty expedited in good & due Form shall be exchanged between the contracting Parties in the Space of Six Months or sooner if possible to be computed from the Day of the Signature of the present Treaty.  In witness whereof we the undersigned their Ministers Plenipotentiary have in their Name and in Virtue of our Full Powers, signed with our Hands the present Definitive Treaty, and caused the Seals of our Arms to be affixed thereto.

Done at Paris, this third day of September in the year of our Lord, one thousand seven hundred and eighty-three.






On This Day in 1932, the First Woman is Elected to the United States Senate



On January 12, 1932, Ophelia Wyatt Caraway (D-AR) becomes the first woman elected to the U.S. Senate. Caraway was appointed to the Senate two months earlier to fill a vacancy left by her late husband, Thaddeus Horatio Caraway, who passed away while serving in the Senate. She was re-elected in 1938, but failed to win re-nomination in 1944. FDR later appointed her to the Federal Employees Compensation Commission.

Historical note: While Caraway was the first woman elected to the U.S. Senate, she was preceded in the Senate by Rebecca Latimer Felton, who was appointed in 1922 to fill a vacancy, but did not run for election thereafter. Jeannette Rankin, who was elected to the House in 1917, was the first woman to serve in the U.S. Congress.

Today there are 21 women in the U.S. Senate and 83 women in the U.S. House.

Happy Birthday, Alexander Hamilton!




Alexander Hamilton was born in Nevis, British West Indies on January 11, 1757. As the hit eponymous Broadway shows opens – “How does a bastard, orphan, son of a whore and a Scotsman, dropped in the middle of a forgotten spot in the Caribbean by providence, impoverished, in squalor, grow up to be a hero and a scholar?”

And, yet, he does. Hamilton came to America alone at age 15. He fought at Washington’s side during the American Revolution, helped ensure ratification of the Constitution of 1787, and saved the new nation from financial ruin. Had he not died tragically in a duel against his political rival, Aaron Burr, who can say what other extraordinary things he might have achieved.

To mark the anniversary of Hamilton’s birth, I thought I’d spotlight a few quotations by and about Alexander Hamilton –

1) President George Washington to Alexander Hamilton, 2 February 1795 – “In every relation, which you have borne to me, I have found that my confidence in your talents, exertions and integrity, has been well placed. I the more freely render this testimony of my approbation, because I speak from opportunities of information which cannot deceive me, and which furnish satisfactory proof of your title to public regard.”

(2) John Adams to Abigail Adams, 9 January 1797 – “Hamilton I know to be a proud Spirited, conceited, aspiring Mortal always pretending to Morality, with as debauched Morals as old Franklin who is more his Model than any one I know. As great an Hypocrite as nay in the U.S. His Intrigues in the Election I despise. That he has Talents I admit. But I dread none of them. I shall take no notice of his Puppyhood but retain the same Opinion of him I always had and maintain the Same Conduct towards him I always did, that is keep him at a distance.”

(3) The Federalist No. 34, 5 January 1788 – “We must bear in mind, that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil Government are not to be framed upon a calculation of exigencies; but upon a combination of these, with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing therefore can be more fallacious, than to infer the extent of any power, property to be lodged in the National Government, from an estimate of its immediate necessities. There ought to be a capacity to provide for future contingencies, as they may happen; and, as these are illimitable in their nature, it is impossible safely to limit that capacity.”

(4) Caesar No. II, 17 October 1787 – “There are always men in society of some talents, but more ambition, in quest of that which it would be impossible for them to obtain in any other way than by working on the passions and prejudices of the less discerning classes of citizens and yeomanry. — It is the plan of men of this stamp to frighten the people with ideal bugbears, in order to mould them to their own purposes. The unceasing cry of these designing croakers is, my friends, your liberty is invaded! Have you thrown off the yoke of one tyrant, to invest yourselves with that of another! Have you fought, bled, and conquered, for such a change! If you have – go – retire into silent obscurity, and kiss the rod that scourges you.”

(5) The Federalist No. 15, 1 December 1787 – “The best oracle of wisdom, experience.”

(6) The Federalist No. 30, 1 January 1788 – “In disquisition of every kind there are certain primary truths or first principles upon which all subsequent reasonings must depend. These contain an internal evidence, which antecedent to all reflection or combination commands the assent of the mind.”

Does the Emoluments Clause Apply to the President of the United States?: A Summary of Two Competing Views

Article I, Section 9, Clause 8 of the Constitution, also known as the Emoluments Clause, states –

“[N]o Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

By virtue of President-Elect Trump’s continued interest in the Trump Organization and its subsidiaries there is a concern that the monetary and other benefits he could receive from foreign governments and their agents could run afoul of the Constitution’s Emoluments Clause.

There is currently a debate over whether the Emolument Clause applies to the President. I thought it might be useful for readers of this blog to present a summary of the opposing viewpoints.

Argument 1: The Emoluments Clause Applies to the President

There is no doubt that the Founders were concerned about foreign corruption. In Federalist No. 22, Alexander Hamilton wrote: “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.”

As Fordham Law Professor Zephyr Teachout explains in a recent New York Times op-ed this concern was raised during the Constitutional Convention –

At the Constitutional Convention, Alexander Hamilton warned, ‘Foreign powers … will interpose, the confusion will increase, and a dissolution of the union ensue.’ The delegate Elbridge Gerry said, ‘Foreign powers will intermeddle in our affairs, and spare no expense to influence them …. Every one knows the vast sums laid out in Europe for secret services.’

As explained in the Heritage Guide to the Constitution

The delegates at the Constitutional Convention specifically designed the [Emoluments] clause as an antidote to potentially corrupting foreign practices of a kind that the Framers had observed during the period of the Confederation. Louis XVI had the custom of presenting expensive gifts to departing ministers who had signed treaties with France, including American diplomats. In 1780, the King gave Arthur Lee a portrait of the King set in diamonds above a gold snuff box; and in 1785, he gave Benjamin Franklin a similar miniature portrait, also set in diamonds. Likewise, the King of Spain presented John Jay (during negotiations with Spain) with the gift of a horse. All these gifts were reported to Congress, which in each case accorded permission to the recipients to accept them. Wary, however, of the possibility that such gestures might unduly influence American officials in their dealings with foreign states, the Framers institutionalized the practice of requiring the consent of Congress before one could accept “any present, Emolument, Office, or Title, of any kind whatever, from…[a] foreign State.”

With this background in mind, the question becomes – to whom does the clause apply?

Scholars Norman Eisen, Richard Painter, and Laurence Tribe argue in a Brookings Institution report that the Emoluments Clause was not “exclusively, or even mainly relevant to diplomats [alone].” To support their assertion that the Clause also applies to the President, they look to a statement made by Edmund Randolph (who would go on to serve as the nation’s first attorney general) in the Virginia Ratifying Convention. There he said –

There is another provision against the danger mentioned by the honorable member, of the president receiving emoluments from foreign powers. If discovered he may be impeached. If he be not impeachable he may be displaced at the end of the four years . . . I consider, therefore, that he is restrained from receiving any present or emoluments whatever. It is impossible to guard better against corruption.

Teachout in her article also cites two examples where presidents sought congressional consent before receiving foreign gifts –

In 1840, when President Martin Van Buren was offered horses, pearls, a Persian rug, shawls and a sword by Ahmet Ben Haman, the Imam of Muscat, Van Buren got a joint resolution of Congress authorizing him to split the bounty between the Department of State and the Treasury. When President John Tyler was given two horses from a foreign power, Congress had him auction them off and give the proceeds to the Treasury.

Argument 2: The Emoluments Clause Does Not Apply to the President

Scholar Seth Barrett Tillman has laid out the argument on the other side. In a recent New York Times piece he explains –

There are three good reasons to believe that the [Emoluments Clause] does not [apply to the President].

First, the Constitution does not rely on generalized “office” language to refer to the president and vice president. Where a provision is meant to apply to such apex or elected officials, the provision expressly names those officials. For example, the Impeachment Clause applies to the “president, vice president and all civil officers of the United States…”

Second, the Foreign Gifts Clause was given an early construction by George Washington. While he was president, Washington received two gifts from officials of the French government — including a diplomatic gift from the French ambassador. Washington accepted the gifts, he kept the gifts, and he never asked for or received congressional consent. There is no record of any anti-administration congressman or senator criticizing the president’s conduct. As Professor Akhil Amar has reminded us, the precedents set by President Washington and his administration deserve special deference in regard to both foreign affairs and presidential etiquette.

Finally, in 1792, again during the Washington administration, the Senate ordered Secretary of the Treasury Alexander Hamilton to supply a list of persons holding office under the United States and their salaries. Hamilton’s 90-page responsive list included appointed officers in each of the three branches, but did not include any elected officials in any branch. In other words, officers under the United States are appointed; by contrast, the president is elected, so he is not an officer under the United States. Thus, the Foreign Gifts Clause, and its operative office under the United States language, does not apply to the presidency.


On This Day in 1790, George Washington delivers the first State of the Union Address




Article II, Section 3 of the United States Constitution states –

[The President] shall from time to time give to the Congress Information of the State of the Union….

On January 8, 1790, President George Washington delivered the first State of the Union address to Congress assembled in New York City. The full text of Washington’s address is below. I’d like to call attention here to my favorite passage –

Nor am I less persuaded that you will agree with me in opinion that there is nothing which can better deserve your patronage than the promotion of science and literature. Knowledge is in every country the surest basis of public happiness. In one in which the measures of government receive their impressions so immediately from the sense of the community as in ours it is proportionably essential.

To the security of a free constitution it contributes in various ways – by convincing those who are intrusted with the public administration that every valuable end of government is best answered by the enlightened confidence of the people, and by teaching the people themselves to know and to value their own rights; to discern and provide against invasions of them; to distinguish between oppression and the necessary exercise of lawful authority; between burthens proceeding from a disregard to their convenience and those resulting from the inevitable exigencies of society; to discriminate the spirit of liberty from that of licentiousness – cherishing the first, avoiding the last – and uniting a speedy but temperate vigilance against encroachments, with an inviolable respect to the laws.

Washington’s First Annual State of the Union Address

Fellow-Citizens of the Senate and House of Representatives:

I embrace with great satisfaction the opportunity which now presents itself of congratulating you on the present favorable prospects of our public affairs. The recent accession of the important state of North Carolina to the Constitution of the United States (of which official information has been received), the rising credit and respectability of our country, the general and increasing good will toward the government of the Union, and the concord, peace, and plenty with which we are blessed are circumstances auspicious in an eminent degree to our national prosperity.

In resuming your consultations for the general good you can not but derive encouragement from the reflection that the measures of the last session have been as satisfactory to your constituents as the novelty and difficulty of the work allowed you to hope. Still further to realize their expectations and to secure the blessings which a gracious Providence has placed within our reach will in the course of the present important session call for the cool and deliberate exertion of your patriotism, firmness, and wisdom.

Among the many interesting objects which will engage your attention that of providing for the common defense will merit particular regard. To be prepared for war is one of the most effectual means of preserving peace.

A free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite; and their safety and interest require that they should promote such manufactories as tend to render them independent of others for essential, particularly military, supplies.

The proper establishment of the troops which may be deemed indispensable will be entitled to mature consideration. In the arrangements which may be made respecting it it will be of importance to conciliate the comfortable support of the officers and soldiers with a due regard to economy.

There was reason to hope that the pacific measures adopted with regard to certain hostile tribes of Indians would have relieved the inhabitants of our southern and western frontiers from their depredations, but you will perceive from the information contained in the papers which I shall direct to be laid before you (comprehending a communication from the Commonwealth of Virginia) that we ought to be prepared to afford protection to those parts of the Union, and, if necessary, to punish aggressors.

The interests of the United States require that our intercourse with other nations should be facilitated by such provisions as will enable me to fulfill my duty in that respect in the manner which circumstances may render most conducive to the public good, and to this end that the compensation to be made to the persons who may be employed should, according to the nature of their appointments, be defined by law, and a competent fund designated for defraying the expenses incident to the conduct of foreign affairs.

Various considerations also render it expedient that the terms on which foreigners may be admitted to the rights of citizens should be speedily ascertained by a uniform rule of naturalization.

Uniformity in the currency, weights, and measures of the United States is an object of great importance, and will, I am persuaded, be duly attended to.

The advancement of agriculture, commerce, and manufactures by all proper means will not, I trust, need recommendation; but I can not forbear intimating to you the expediency of giving effectual encouragement as well to the introduction of new and useful inventions from abroad as to the exertions of skill and genius in producing them at home, and of facilitating the intercourse between the distant parts of our country by a due attention to the post-office and post-roads.

Nor am I less persuaded that you will agree with me in opinion that there is nothing which can better deserve your patronage than the promotion of science and literature. Knowledge is in every country the surest basis of public happiness. In one in which the measures of government receive their impressions so immediately from the sense of the community as in ours it is proportionably essential.

To the security of a free constitution it contributes in various ways – by convincing those who are intrusted with the public administration that every valuable end of government is best answered by the enlightened confidence of the people, and by teaching the people themselves to know and to value their own rights; to discern and provide against invasions of them; to distinguish between oppression and the necessary exercise of lawful authority; between burthens proceeding from a disregard to their convenience and those resulting from the inevitable exigencies of society; to discriminate the spirit of liberty from that of licentiousness – cherishing the first, avoiding the last – and uniting a speedy but temperate vigilance against encroachments, with an inviolable respect to the laws.

Whether this desirable object will be best promoted by affording aids to seminaries of learning already established, by the institution of a national university, or by any other expedients will be well worthy of a place in the deliberations of the legislature.

Gentlemen of the House of Representatives:

I saw with peculiar pleasure at the close of the last session the resolution entered into by you expressive of your opinion that an adequate provision for the support of the public credit is a matter of high importance to the national honor and prosperity. In this sentiment I entirely concur; and to a perfect confidence in your best endeavors to devise such a provision as will be truly with the end I add an equal reliance on the cheerful cooperation of the other branch of the legislature.

It would be superfluous to specify inducements to a measure in which the character and interests of the United States are so obviously so deeply concerned, and which has received so explicit a sanction from your declaration.

Gentlemen of the Senate and House of Representatives:

I have directed the proper officers to lay before you, respectively, such papers and estimates as regard the affairs particularly recommended to your consideration, and necessary to convey to you that information of the state of the Union which it is my duty to afford.

The welfare of our country is the great object to which our cares and efforts ought to be directed, and I shall derive great satisfaction from a cooperation with you in the pleasing though arduous task of insuring to our fellow citizens the blessings which they have a right to expect from a free, efficient, and equal government.