Happy Birthday, Alexander Hamilton!

 

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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

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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.

The Blizzard of 1996 and How I Became the Constitution Lady

 

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As I overlook the snow falling in Washington this afternoon, I am reminded of January 7, 1996, when a blizzard dumped 20 to 30 inches of snow in my hometown in Bucks County, Pennsylvania and forced the closure of schools and businesses for several days.

I was in fourth grade at the time, and my mother, in an attempt to keep her three kids occupied while also preventing learning loss, decided to give me and my two siblings encyclopedia assignments. The assignment was simple enough. She assigned us a letter, and we were to pick a topic in the the print encyclopedia (yes, we still had print encyclopedias in the 1990s) with that letter and prepare a short presentation.

She assigned me the letter “C.” I serendipitously opened the encyclopedia to the entry on the Constitution and prepared my oral report. As luck would have it, when I returned to school, my teacher discussed the three branches of the United States Government. Since I was now a self-proclaimed constitutional scholar (at the tender age of 8), I was able to correctly answer all of the questions he posed to the class. As a stereotypical A-type personality, I decided then and there that I was on to something with this whole Constitution thing, and, perhaps, I should keep studying it and, therefore, answering questions correctly.

From that moment at the age of 8 onward, I developed a deep abiding love and appreciation for the Constitution. I would go on to study student speech issues in middle and high school, and even started a “Constitution club” in high school, where students could gather after school to discuss pressing constitutional issues.

In college, I was awarded a research fellowship to study the development of the “clear and present danger” standard. As part of my research, I traveled around the country and met with a number of leading first amendment scholars. This experience demonstrated to me the importance of discussing the contours of constitutional rights.

In law school, I created Constitutional Conversations, an award-winning, non-partisan, community-based education program in partnership with the Institute of Bill of Rights Law, The Colonial Williamsburg Foundation, and the Williamsburg Regional Library system. The program sent law students into the community to educate citizens about their constitutional rights and responsibilities. The program continues at William & Mary Law School today.

Today, I have the privilege of serving as executive director of The Constitutional Sources Project. Through my work over the last 5 years, I have had the opportunity to teach thousands of citizens about the Constitution and our nation’s constitutional history.

Several years ago, a young woman emailed me about the Constitution for a paper she was writing in her middle school class. In that email, she wrote “Dear Constitution Lady…” I think the name fits, and so have adopted it as my unofficial title as I travel the country discussing the Constitution.

I can thank the Blizzard of 1996, my mother, and a print encyclopedia for setting me on this lifelong journey. I believe my work has never been more important than it is now, and look forward to continuing to promote constitutional literacy in the years ahead!

 

On This Day in 1789, the First U.S. Presidential Election is Held

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On this day in 1789, America’s first presidential election under the federal Constitution is held. Voters cast ballots to choose state electors. At the time, only white men who owned property were allowed to vote. George Washington was elected and sworn into office on April 30, 1789.

The electoral votes in the 1789 election were as follows –

(1) George Washington of Virginia: 69

(2) John Adams of Massachusetts: 34 (prior to the ratification of the 12th amendment, the candidate who received the most electoral votes became president, while the candidate who won the second most became vice president).

(3) John Jay of New York: 9

(4) Robert Hanson Harrison of Maryland: 6

(5) John Rutledge of South Carolina: 6

(6) Samuel Huntington of Connecticut: 2

(7) John Milton of Georgia: 2

(8) James Armstrong of Pennsylvania: 1

(9) Benjamin Lincoln of Massachusetts: 1

(10) Edward Telfair of Georgia: 1

4 electors failed to cast their ballots, and only 10 out of 13 states participated in the election. North Carolina and Rhode Island had not yet ratified the Constitution and were, therefore, ineligible to participate. New York also did not participate because a deadlock in the state legislature led to a failure to appoint its allotment of 8 electors.

A Modern Tradition for Congress: The Annual Reading of the Constitution on the House Floor

Under Article VI, Clause 3 of the Constitution, members of Congress must swear an oath to support the Constitution –

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution[.]

Title 5, Section 3331 of the United States Code sets out the oath each member of Congress must swear or affirm to before taking office –

“I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

In 2011, for the first time in the history of the House of Representatives, the full text of the Constitution was read aloud. The annual tradition has continued ever since. You can watch this year’s annual reading here: https://www.c-span.org/video/?420996-1/us-house-members-read-us-constitution.

This is an excellent opportunity to take a moment to read the Constitution and explore its history. I invite you to do both by visiting http://www.ConSource.org

 

Civic Engagement Should be Your New Year’s Resolution

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On Monday evening, during a closed-room vote, the House GOP proposed major changes to the independent Office of Congressional Ethics (OCE). Under the new rules, the OCE would no longer operate as an independent agency.  It would, instead, answer to the House Ethics Committee, putting Congress in charge of policing itself.

The public outcry was swift and effective. According to the Washington Post’s Robert Costa, members of Congress cited constituent concerns as the most important factor in their decision to sideline the proposed changes to OCE.

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This moment serves as a reminder of the power of civic engagement. As I’ve said here before – being a citizen does not begin and end on Election Day. It’s a 365-day-a-year job.

Make civic engagement your New Year’s resolution. Here are some ways you can get and stay involved throughout the year –

(1) Vote regularly at the local, state, and national level and help persuade others to vote, as well

(2) Contact elected officials

(3) Volunteer in your local community or for an organization with statewide or national goals

(4) Active membership in a group or association

(5) Giving or fundraising for a cause that’s important to you.

(6) Displaying buttons, signs, and stickers related to an issue important to you, your local community or the nation.

(7) Sign online or written petitions

(8) Write a letter to the editor

(9) Boycott or protest

(10) Discuss issues that matter to you with people in your network.

(11) MAKE SURE YOU STAY INFORMED! Information is the key to meaningful engagement!