At the birth of our republic, representatives in the “popular” branch of the national legislature were apportioned according to “the whole Number of free Persons . . . and . . . three fifths of all other Persons.” U.S. Const. Art. I, § 2. It is often remarked that our enslaved ancestors were treated as only 3/5 human, but this recognition rather understates the insult. Three of every five slaves were counted as persons—but only for the purpose of increasing the representation in Congress of the very people who owned those slaves. The representation of enslaved Americans was, of course, none—worse than none, because their numbers actually increased the representation and power of those who would bind the shackles of slavery around their ankles forever. Worse than dehumanizing, the Three-fifths Clause empowered the dehumanizers.

This is the valley out from which we climb. We made a great and tragic compromise to forge this nation, and we did so for one reason—because we cannot walk alone.

The founders of the nation pledged themselves to support the injustice of slavery, but only for twenty years.¹ We had twenty years to build the institutions of government which could one day open up the halls of justice and secure the blessings of liberty to our posterity, if not to ourselves. To be sure, many of those early patriots would sink to still lower injustices and fight against the cause of manumission. But to some it was clear even then that the tide of history and freedom would rise.

We gave ourselves twenty years—and then another two hundred years. At first we saw each other on opposite banks of the stream, and we drew from the same well. Eventually we drank from the same fountain and watched our children swim in the same pool. And all this time we carried a delicate cup—and waited for the waters to roll down. We have done unspeakable evils, but we must not bury them. We must hold them up to the light. Hold them to the light and wait for the waters.

Today we have witnessed together a mountain made low, and a valley exalted. Today we have seen, together, that we cannot and should not blot out that baleful miscalculation in our Constitution which made five into three—because we cannot walk alone.

And because from that perversion of humanity and mathematics has come the promise of a glorious secular miracle, a miracle by which we may make three hundred million into one.

1. Article V provided that the Constitution could not be amended to “in any Manner affect” the slave trade until 1808, roughly twenty years from the time of drafting. [↩]

Akhil Amar and Josh Chafetz argue here that the Senate does indeed have the power to reject Gov. Blagojevich’s appointment of Roland Burris.

Amar and Chafetz argue that Article I, section 5 provides the Senate unequivocal authority to review appointments.

Because of the word “returns” in Section 5, what is true of elected Senators is equally true of appointed Senators. According to the Oxford English Dictionary, a “Return” in the time of the framers involved a report of an appointment made by a sheriff or other official. If the Senate may refuse to seat a person picked in a corrupt election, it likewise may refuse to seat a person picked in a corrupt appointment process. (Alternatively, we might think of an appointment as an “election” by one voter.)

Distinguishing Powell, Amar and Chafetz make the case that Senate judgments about elections or returns should be untouchable by the courts.

The critical point here is that the Constitution itself sets up the Senate as the highest court of Senate elections. When the Senate speaks as this court, its adjudications are legal judgments that no other court may properly reopen. If the Senate convicts a federal judge in an impeachment court, no other federal court may properly interfere. So, too, for Senate elections and returns.

In perhaps the least convincing part of the analysis, Amar and Chafetz hash out the tainted-process argument:

What are the counterarguments in favor of seating Burris? Both he and Blagojevich say that the Senate should not hold the governor’s sins against his would-be senator. To be sure, there is no evidence Burris bribed the governor to get this seat. But imagine if Burris had won election only because other candidates were wrongly and corruptly kept off the ballot. Surely the Senate could properly deem this an invalid election. Similarly, it now seems apparent that there were candidates that Blagojevich refused to consider for improper reasons—because one refused to “pay to play” early on, or because another is at the center of the impending criminal case against the governor. With the appointments process so inherently and irremediably tainted, the Senate may properly decide that nothing good can come from a Blagojevich appointment.

The problem here is the no-evidence-regarding-Burris part. If the Senate is allowed to reject the appointment without evidence supporting a good-faith judgment that this appointment was corruptly made, its rejection will not be an exercise of constitutionally discretionary judgment, but will be rather an expansion of authority beyond its constitutional scope—just as the Court in Powell said was impermissible. We would essentially be allowing the Senate to decide based on its judgment of the governor’s character, rather than on the legality or propriety of the “return” of the appointment.

Without a criterion of specific relevance, we lose our only principled check on senatorial discretion in cases such as this. The Senate shouldn’t interfere with the discretion committed by the Seventeenth Amendment to the governor (via the state legislature) any more than the courts should interfere with the constitutional discretion of the Senate.

The answer is . . . probably not. Article I, section 5 of the Constitution provides:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . .

The first question here is whether a vacancy appointment falls within the purview of the power to judge elections, returns, or qualifications. If it doesn’t, the Senate must accept the Burris appointment. If it does, other questions arise.¹ In this post I deal only with the first issue. I will argue that vacancy appointments should be subject to the same congressional scrutiny to which members’ elections are subject.

Supreme Court precedent is clear on the question of qualifications. The only qualifications required of a Senator are the age, citizenship, and residency requirements of Article I, section 3.² The Senate may not impose a new “untainted appointment” qualification in order to exclude Burris.³

But the problem with the Burris appointment has nothing to do with any qualifications of Burris himself. Rather, the problem here is with the integrity of the appointment process. So the real issue is whether the Senate’s authority to judge the elections (or returns) of its members extends to watching over vacancy appointments by a state executive.

Of Elections and Appointments

The Seventeenth Amendment gives state legislatures the authority to empower their governors to make vacancy appointments:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.⁴

This suggests pretty strongly that the Constitution has committed responsibility for vacancy appointments entirely to state legislatures. In addition, general concerns about federalism may militate against congressional interference with an appointment made in accordance with state processes under state law.

On the other hand, in order for the Senate to be “the Judge of the Elections . . . of its own Members,” it must be the case that the Constitution permits (single-chamber) congressional review of state electoral processes.⁵

The member-election oversight function was part of the framers’ project to make the new Congress independent of the state legislatures—in contrast to the Congress under the Articles of Confederation, which was entirely in their thrall.⁶ If the purpose of the member-election oversight function is to buttress the independence of the national legislature (and of each chamber within it) by permitting each chamber to protect the integrity of the processes by which new members are selected, then it would make little sense to narrowly construe section 5 so as to exclude the power to review vacancy appointments. Such a construction would allow Congress to protect itself from corruption of an electoral process but not from corruption of an appointment process.

It is worth remembering that United States senators were originally chosen by the state legislatures.⁷ Thus, the power to judge elections and returns must have originally been understood to entail more than popular-vote recounts. It must have included the authority to review state-legislative conduct and electoral processes. Such authority, under even the most conservative reckoning, must have extended to an ability to reject an outcome tainted by corrupt and underhanded dealings by the state legislature.

Lastly, it would be impractical to narrowly construe the term “Elections” as it appears in Article I, section 5. The term routinely appears in the Constitution with a referential significance that includes appointments among its objects. The section 3 residency requirement states: “No Person shall be a Senator . . . who shall not, when elected, be an inhabitant of that State for which he shall be chosen.” Surely the qualifying phrase “when elected” does not mean that persons who are appointed need not inhabit the state to be represented. The better construction would be that references to elections (and persons elected) should include appointments (and persons appointed) wherever the underlying purpose of the constitutional provision applies equally to both.

I’ll make a case that the Senate must seat Burris one way or the other in another post.

1. The other questions are (a) whether the Senate’s judgment is a justiciable issue (i.e., one that may be reviewed by the courts); and (b) whether there are sufficient grounds for the Senate to reject the appointment. [↩]
2. A Senator must be 30 years old, must have been a U.S. citizen for 9 years, and must be an inhabitant of the state to be represented. U.S. Const. art. I, § 3. [↩]
3. See Powell v. McCormack, 395 U.S. 486 (1969). In Powell, the Court held that the House of Representatives could not refuse to seat a duly elected member whom a House subcommittee had found guilty of financial misconduct. The power to judge members’ qualifications does not include the power to create new qualifications beyond those that the Constitution requires. However, as the Court noted in Powell, either house could expel (rather than exclude) a member for corruption or just about any other reason with a two-thirds vote. U.S. Const. art. I, § 5. Expulsion is not an option here, obviously, since Burris has not yet assumed a position from which to be expelled. Expulsion would also raise interesting justiciability issues. I would be inclined to say that a member may not be expelled unless as punishment for that member’s own conduct—and not for the conduct of the governor of his state. Further, punishable conduct should probably be restricted to conduct during a representative’s tenure. [↩]
4. U.S. Const. amend. XVII, cl. 2. [↩]
5. And indeed, it seems that the member-election oversight function has been exercised primarily in recounts of contested elections. See Roudebush v. Hartke, 405 U.S. 15 (1972). In Roudebush, the Court held that the Senate’s election-oversight function was not “usurped” when state law mandated a recount in a senatorial election—even after the candidate was seated in the Senate. Id. The Court stated, however, that state process would not be permitted to interfere with the Senate’s independent, final evaluation of the election returns, and the Senate was free to accept or reject the results of the recount. Id. [↩]
6. See Amar, America’s Constitution 58. [↩]
7. Popular election of Senators was constitutionally mandated by the Seventeenth Amendment, ratified in 1913. [↩]

Illinois Governor Rod Blagojevich’s appointment of Roland Burris to fill President-elect Obama’s vacated Senate seat this past week was defiant, unwelcome, and, to all appearances, completely legit.

Although the Governor is operating under a deficit of political credibility, his official actions are not subject to any legal impediment until he is impeached and convicted by the state legislature. If the state executive is given the vacancy-appointment power under state law, any lawful exercise of that power is valid, even if politically tainted. Official acts of a state executive are not made illegal by the mere fact that the executive contemplated unlawful action. And suspicion, however widespread, does not transform the executive into a kind of second-class “Governor-minus” who can exercise some powers of his office but not others.

The more interesting constitutional question is whether the Senate may refuse to seat Mr. Burris. I’ll take that question up in the next post.

The fix is in. Congress has approved a pay cut for the next Secretary of State in order to patch up the Ineligibility Clause problem standing between Hillary Clinton and her appointment to Foggy Bottom.

This question has been raised about Senator Hillary Clinton’s eligibility for appointment to Secretary of State in the incoming administration. Background here. The Ineligibility Clause¹, U.S. Const. Art. I, § 6, 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.

President Bush raised cabinet salaries by executive order in January 2008. Arguments have been made (see here) that the Ineligibility Clause bars appointments even where the pay increases at issue were enacted by executive order or where they result from automatic inflation-indexed pay schedules enacted by a past Congress.

The linked articles all indicate the likely solution here: the “Saxbe fix,” whereby Congress intervenes to revert cabinet salaries to the levels at which they stood immediately prior to the current term of the senator/nominee or rep/nominee during which the pay increase was enacted.

Arguments for Eligibility

Though I haven’t done the background legal research, I might make the following arguments in favor of Senator Clinton’s eligibility:

First, because the pay raise at issue was instituted by Executive Order, the appointment does not pose any risk of self-dealing by legislators. And second, because the pay raise was ordered by one President and the appointment will be made by another, there is no danger of a corrupt bargain.²

The Ineligibility Clause operates in tandem with the Incompatibility Clause (prohibiting legislators from simultaneously serving in Congress and an executive or judicial “Office under the United States”). These clauses together prevent both Congress and the President from improperly influencing one another with sinecures and reward posts in the government.³

The prohibition is effective only for the legislator’s term in which the post is created or the emoluments increased. This restriction gives us an important clue to the proper scope of the Ineligibility Clause.

The framers understood that the threat of political corruption was and always would be pervasive. So the Constitution mandates a kind of waiting period to require that a suspect legislator face electoral judgment before becoming eligible to benefit from his own corrupt bargains. Thus, as in many other areas, the framers saw the political process as the proper guarantee of good and honest governance.⁴

The argument against eligibility focuses on the plain language of the clause and considers determinative the question of whether emoluments “have been encreased” during the legislator’s current term. If cabinet pay has been increased during the current term, then the legislator is ineligible for the cabinet. This argument is a strong one, but there is room for another view. If viewed as giving effect to an anti-corruption purpose, the clause would not operate as a bar to appointments where the pay raise was not enacted by Congress (or authorized by Congress during the legislator/nominee’s current term) and the raise and the appointment occur in two different executive administrations separated by an intervening presidential election.

Political Question?

As a last-ditch argument in favor of eligibility, one might also contend that the issue presents a political question not fit for judicial resolution. The President and Congress each have an opportunity to evaluate the constitutional merits of the emoluments question. Each has taken an oath to support the Constitution. And Congress, in particular, has an institutional interest in thwarting any shady dealing between the branches which might reward one of its members with such luxuries as could make the rest into beggars for executive favor.

1. The clause is often confusingly referred to as the Emoluments Clause—as did this post until drawn to my attention. However, another clause, Art. I, § 9, cl. 8 (barring receipt of gifts or emoluments from foreign states by US government officials without the consent of Congress), better deserves the appellation. [↩]
2. And third, if it can be shown that the salary increase was a routine adjustment for inflation, it would not present the characteristic tit for tat of improper political influence between branches. [↩]
3. See Amar, America’s Constitution 78, 171. [↩]
4. The Twenty-Seventh Amendment, proposed in 1789, is another example of this method of safeguarding against governmental corruption. [↩]

President-Elect Obama has commented on the possibility of further investigations of the Bush administration regarding such matters as detainee treatment and the role of political advisers in firing federal prosecutors:

“If crimes have been committed, they should be investigated,” Mr. Obama said, but added, “I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve.”¹

President Bush might claim executive privilege, even after his term is over, to refuse disclosure of evidence or testimony by top officials.

Mr. Bush might rely on an informal precedent set by President Truman, when he refused to testify before HUAC after leaving office in 1953. Truman sent a letter to the House committee claiming residual constitutional privileges derived from separation of powers. HUAC backed down, and the informal precedent was set.

I’m not in favor of the new administration pushing this. I am in favor of the rule of law, and of course I do not think the President is above the law. But it is far more important to take on the current and future problems facing the country than to seek vindication for past wrongs.

If the new administration sees evidence of wrongdoing by the old, it should publicize it and condemn it. And it should comply with the law in cooperating with any ongoing congressional investigations. Most importantly, the new administration should repair the damage and work to prevent it from ever happening again. But it should not risk alienating a third of the country which might perceive prosecutions as partisan retribution.

While it is understandable to desire that a past administration be held accountable for its wrongdoing, I think it is far more important that the American people hold themselves accountable for their choices in the voting booth. Elections have consequences. Only the political process can right the wrongs which the political process has wrought.

1. New York Times, Nov. 13, 2008, http://www.nytimes.com/2008/11/13/washington/13inquire.html. [↩]

Tuesday’s election of Barack Obama was one of those rare events which become “historic” before they’re even part of what we call “the past.” On January 20, 2009, Obama will become the 44th President of the United States.¹ I dare say some will be calling him the greatest president in American history by January 19th.

I’m planning a few entries about Obama’s election, with some historical perspective. But here’s a question that I’m really starting to wonder about: what will be the great constitutional questions of the Obama presidency?

George W. Bush’s tenure has raised issues of executive privilege, war powers, detainee rights, the unitary executive, and wartime civil liberties–to mention a few. Obama, himself a teacher of constitutional law, will obviously take a very different route than Bush on these questions. But what are the big constitutional debates, if any, which await us in the next four to eight years?

1. Actually, he will be the 43rd person to hold the office. Grover Cleveland counts twice because his two terms were not successive. [↩]

What is the spookiest part of the U.S. Constitution? Surely it is Article III, Section 3, Clause 2—the Corruption of Blood Clause:

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Corruption of blood? What the hell does that mean? Not much anymore, I suspect. But note one thing that seems perfectly obvious about the clause. Whatever it evokes to a modern reader, we intuitively grasp that its meaning must be excavated from the Eighteenth Century context in which it was drafted and ratified.

What might the clause mean without that historical context? Perhaps it would be interpreted as a restriction on certain occult punishments for treason? Or as a ban on compulsory intermarriage with other classes or races? A prohibition on death by lethal injection?

These are the equivalents of arguing that the true basis of the Bush v. Gore decision lies in the article IV guarantee of a “Republican Form of Government.”

Communication is purposive behavior. We use words to get things done. Meaning, as an element of communicative purpose, is a product of the words used, the author’s intent, the context of utterance, and the audience’s understanding. The context of utterance is (ordinarily, at least) indexed to the time of utterance. The meaning of what we say depends on when and where we say it.

That’s the intuitive basis for originalism. And while I don’t traffic much in originalist jurisprudence myself, I think it’s a mistake not to acknowledge its appeal and the prima facie strength of its philosophical underpinnings.

The “utterance” of a constitutional provision, so to speak, occurs at the time it is adopted, or ratified. Accordingly, its meaning is, all else being equal, its original meaning.

The question then is: is all else equal? Where the text presents us with an unfamiliar locution like “corruption of blood,” in a provision rarely if ever invoked, there is not really much “else” to inquire about. The original meaning is its only meaning. There’s no competition. And so, while the original meaning settles the question in this instance, it doesn’t really win the argument for originalism. No one else showed up to the debate.

Oh, almost forgot: the Corruption of Blood Clause prohibits punishment of the innocent blood relatives of a person convicted of treason. Boo!

A sharp and spirited debate about originalism took place Thursday at Georgia State University between Professor John McGinnis (Northwestern) and Professor Eric Segall (Georgia State). The arguments were familiar ones, but exceptionally well-marshalled. Both landed their strongest points squarely, but neither sufficiently attended the best arguments of the other side.

McGinnis’ strongest point (in favor of originalism) was that, unless we observe the intuitive norm according to which meaning is fixed by the public understanding at the time of ratification, we sacrifice the authority (or legitimacy) which attaches (or should attach) to constitutional language by virtue of its supermajority democratic enactment. Its constitutional character is downgraded in significance by any interpretive manipulation subsequent to ratification.

Segall’s strongest point was that originalists, bending over backwards to dissociate the meaning of the constitution from what the framers thought it meant (i.e., what specific results the framers may have intended), contort themselves into self-defeating positions by vacillating between meaning as a kind of specific, common understanding and a more general notion of semantic meaning. In other words, originalists resort to more abstract levels of meaning when necessary to avoid commitment to specific views of the framers which today might be embarrassing. (For example, “separate but equal.”)

Both of these points are strong, but neither is impregnable. In my view, the problem is deeper than either side is ready to admit—it is that meaning itself may be indeterminate. (I’ll elaborate in a later post.)

If the meaning of a given constitutional provision is indeterminate, it is clearly impossible to fix the meaning at ratification. But, at the same time, the fact that construction or development of meaning may occur after ratification does not entail that originalism as a normative strategy of interpretation must be abandoned. As with the objective theory of contracts, there are persuasive reasons to preserve the original, negotiated meaning of the document wherever such meaning is discoverable—people won’t enter into or abide by agreements if they know that the terms may be manipulated by a judge.

There’s a lot more to say, but that’s all I can muster for now.