Time for the sanctimonious amongst us (both sides!) to put things into perspective.
The Emoluments Clause for Dummies
Everyone’s an expert, but the truth here is that majority rules.
By
Brian C. Kalt
Jan. 24, 2017 7:11 p.m. ET
In the age of Trump, everyone’s an expert. Case in point: On Monday a group of attorneys and scholars asked a federal court to declare that President Trump is violating the Constitution’s Emoluments Clause. Suddenly, thousands of people on Facebook and Twitter—accountants, photographers, kindergarten teachers—developed strong opinions about this facet of constitutional law, though few had even heard of it before this week.
When law and politics intersect like this, people typically care less about the legal niceties than whether their side wins. As someone who studies arcane constitutional law for a living, I find this vexing—but also entirely appropriate.
Those who hate Mr. Trump can cite the redoubtable Laurence Tribe for the notion that the president is committing impeachable offenses as we speak. The Constitution bars anyone with an “office of profit or trust under the United States” from accepting “emoluments” from foreign states, and Mr. Tribe says that Mr. Trump’s business income from foreign governments may qualify.
Those who love Mr. Trump can cite the conclusion of Seth Barrett Tillman,steeped in years of historical research, that the Framers did not consider the presidency an “office under the United States,” so the Emoluments Clause does not apply to Mr. Trump.
Neither side on social media, though, engages the legal arguments with any depth. I have not seen anyone on Facebook say that Mr. Tribe’s textual analysis uses the wrong interpretive techniques, or that Mr. Tillman’s reading of some historical episode is inapt. Most people’s “legal” opinions are translated directly from their politics.
Photo: iStock
But this might actually be healthy. The Framers purposely assigned many legal questions in the American system not to judges but to politicians. If this is one such question—and I think it is—then President Trump will be subject to the Emoluments Clause only if Congress impeaches him. Judges must stay out of it when the Constitution puts the ultimate decision in the hands of Congress.
The implications of this design are clear. Congress is naturally mindful of politics, even when weighing technical constitutional questions. But lawmakers answer to the voters—and only the voters—for whatever constitutional interpretations they adopt. In some sense, the majority rules.
The Framers anticipated this. Sure, Congress is supposed to take the law seriously. But when there are no strong precedents—as with the Emoluments Clause—plausible legal arguments almost always run in both directions. The winning side will be the one with the stronger political position, not necessarily the one with the best scholarship.
So even if you haven’t studied the legal intricacies or history of the Emoluments Clause, feel free to spout off online. If enough people holding enough power want the same result you do, you will win the “legal” argument.
If, like me, you find this frustrating, and if (bless your heart) you care about the correct technical answers, go ahead and seek them out. You can then share an informed opinion on Facebook, secure in the knowledge that no one will care. That may seem depressing, but remember: There is a roughly 50-50 chance that the side you think is right on the merits will win. Good luck.
Mr. Kalt is a law professor at Michigan State University.
The Emoluments Clause for Dummies
Everyone’s an expert, but the truth here is that majority rules.
By
Brian C. Kalt
Jan. 24, 2017 7:11 p.m. ET
In the age of Trump, everyone’s an expert. Case in point: On Monday a group of attorneys and scholars asked a federal court to declare that President Trump is violating the Constitution’s Emoluments Clause. Suddenly, thousands of people on Facebook and Twitter—accountants, photographers, kindergarten teachers—developed strong opinions about this facet of constitutional law, though few had even heard of it before this week.
When law and politics intersect like this, people typically care less about the legal niceties than whether their side wins. As someone who studies arcane constitutional law for a living, I find this vexing—but also entirely appropriate.
Those who hate Mr. Trump can cite the redoubtable Laurence Tribe for the notion that the president is committing impeachable offenses as we speak. The Constitution bars anyone with an “office of profit or trust under the United States” from accepting “emoluments” from foreign states, and Mr. Tribe says that Mr. Trump’s business income from foreign governments may qualify.
Those who love Mr. Trump can cite the conclusion of Seth Barrett Tillman,steeped in years of historical research, that the Framers did not consider the presidency an “office under the United States,” so the Emoluments Clause does not apply to Mr. Trump.
Neither side on social media, though, engages the legal arguments with any depth. I have not seen anyone on Facebook say that Mr. Tribe’s textual analysis uses the wrong interpretive techniques, or that Mr. Tillman’s reading of some historical episode is inapt. Most people’s “legal” opinions are translated directly from their politics.
Photo: iStock
But this might actually be healthy. The Framers purposely assigned many legal questions in the American system not to judges but to politicians. If this is one such question—and I think it is—then President Trump will be subject to the Emoluments Clause only if Congress impeaches him. Judges must stay out of it when the Constitution puts the ultimate decision in the hands of Congress.
The implications of this design are clear. Congress is naturally mindful of politics, even when weighing technical constitutional questions. But lawmakers answer to the voters—and only the voters—for whatever constitutional interpretations they adopt. In some sense, the majority rules.
The Framers anticipated this. Sure, Congress is supposed to take the law seriously. But when there are no strong precedents—as with the Emoluments Clause—plausible legal arguments almost always run in both directions. The winning side will be the one with the stronger political position, not necessarily the one with the best scholarship.
So even if you haven’t studied the legal intricacies or history of the Emoluments Clause, feel free to spout off online. If enough people holding enough power want the same result you do, you will win the “legal” argument.
If, like me, you find this frustrating, and if (bless your heart) you care about the correct technical answers, go ahead and seek them out. You can then share an informed opinion on Facebook, secure in the knowledge that no one will care. That may seem depressing, but remember: There is a roughly 50-50 chance that the side you think is right on the merits will win. Good luck.
Mr. Kalt is a law professor at Michigan State University.
