Dusting Off the Constitution's Obscure Clauses
This became the year of the obscure, unlitigated constitutional clause. The First and 14th Amendments usually hog all the glory, and each did get a few big moments over the last year. But much more important were ignored and unheralded provisions like the "advice and consent" clause, the Electoral College clauses, and most improbably, the emoluments clause, which since the election has featured prominently as one of the only defenses against conflicts of interest in the Trump White House.
None of this is an accident. We’re in a political season that will be counted as historic mostly because it broke political rules. That’s putting tremendous pressure on parts of the constitutional order that have, for the most part, operated quietly and without anyone paying too much attention.
Lest we forget, there was at least one landmark conventional constitutional decision in 2016, Whole Woman's Health v. Hellerstedt, which rewrote the rule that states may not unduly burden abortion into a cost-benefit test.
The First Amendment free-speech protections got a good deal of play via public falsehoods, which Donald Trump said shouldn’t get free speech protection but which ended up helping in the form of fake news. But the most significant First Amendment legacy of 2016 was surely the instance where free speech failed to protect Gawker when it was sued by Hulk Hogan and eventually had to declare bankruptcy. This was a disaster for a free press, one whose consequences will be felt strongly in the years to come.
All this pales, however, compared to the salience of the obscure clauses. First Senate Republicans devised a new interpretation of their right to give advice and consent to the president over Supreme Court nominations by flatly refusing even to consider the nomination of Judge Merrick Garland to replace Justice Antonin Scalia.
In fact, the Constitution is silent on a scenario like the one that developed. It’s worked in the past because there was sufficient consensus about the constitutional norm, despite the text’s lack of a definitive answer. It’s fair to say that a new constitutional norm has been created, and that Supreme Court confirmations will never be the same.
That makes the advice-and-consent battle into a model of how constitutional change takes place when it comes to the clauses that can’t easily be litigated in court. Instead of looking to the justices to say what the law is, the system instead relies on political actors who create their own interpretations and their own precedents. When the politicians are ready to break the unwritten rules of interpretation, they can change the meaning of the written rules of the Constitution.
The fight over whether presidential electors should break faith and vote against Donald Trump is another instance of debate over a usually obscure part of the Constitution. Article II Section 1 says that “each state shall appoint, in such manner as the legislature thereof may direct, a number of electors.” It doesn’t say that the electors have to keep their promises to vote for the candidate chosen by the state’s voters.
On that basis, it was argued that the electors should act as a check on the people and choose Clinton. Or some Republican other than Trump. Harvard law professor Lawrence Lessig said the reason was that Clinton had won the popular vote. Others seemed to suggest that the electors should break faith because Trump was likely to violate the Constitution -- perhaps the emoluments clause, which I’ll get to in a moment.
Luckily, no pledged Trump electors actually acted on the basis of what Lessig urged. Perhaps the electors believed that people in public life should keep their promises, or perhaps they realized that breaking unwritten constitutional norms would send the wrong message to Trump himself.
Finally, as 2016 drew to a close, we came to know the truly unknown emoluments clause, Article 1, Section 9, Clause 8, which says that “no person holding any office of profit or trust” in the government may accept “any present, emolument, office, or title, of any kind whatever” from a foreign state “without the consent of Congress.” Trump’s hotel holdings seemed potentially to violate this clause, especially after his Washington, DC, hotel started an outreach campaign to get foreign diplomats to stay there.
Since then there’s been a small outpouring of scholarship on emoluments, which had mostly been the exclusive preserve of the White House ethics lawyers and the office of legal counsel in the Department of Justice. The key facts to know are that there may well be no way to bring an emoluments challenge to court and that sanctions, if any, would have to come from Congress.
That in turn suggests that another unlitigated clause may come to occupy our attention in the next few years: Article 2, Section 4, which says the president can be removed if impeached by the House of Representatives and convicted by the Senate of “treason, bribery, or other high crimes and misdemeanors.” The exact meaning of the treason and bribery offenses is uncertain -- and as we know from the impeachment of Bill Clinton, “high crimes and misdemeanors” are defined by the interpretation of the House. Once again, political actors create their own interpretations and precedents. The Constitution gives us only so much guidance.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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Noah Feldman at firstname.lastname@example.org
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