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Sunday, January 08, 2017

The Framers' Cult

Emoluments, eschmoluments:

At the Virginia Ratifying Convention, Edmund Jennings Randolph—a delegate to the Constitutional Convention of 1787—proclaimed unambiguously that the clause applied to presidents. Randolph also noted that the proper remedy for a presidential violation of the Emoluments Clause is impeachment. If “the president receiv[es] emoluments from foreign powers,” Randolph explained, “he may be impeached. … I consider, therefore, that he is restrained from receiving any present or emoluments whatever. It is impossible to guard better against corruption.”

Tillman speculates that Randolph simply misunderstood the scope of the clause. But it’s difficult to imagine that one of his fellow Framers would not have corrected him at some point, and his is the clearest account of the Emoluments Clause from anyone present at the Constitutional Convention.

All three of you know I love citing debates and whatnot, but let's just remember just how far--or not--those Framers' remarks really get us.  Take what the flip-flopping Father of the Constitution wrote in 1821:

As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Insitutions, & as a source parhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people...

Or closer to the Convention's epoch, how about what the Father of Gerrymandering said in 1791:

[A]re we to depend on the memory of the gentleman for a history of their debates, and from thence to collect their sense? This would be improper, because the memories of different gentlemen would probably vary, as they had already done, with respect to those facts; and if not, the opinions of the individual members who debated are not to be considered as the opinions of the Convention...

The gentleman's arguments respecting the sense of the State Conventions have as little force as those relating to the Federal Convention. The debates of the State Conventions, as published by the short-hand writers, were generally partial and mutilated; in this, if the publications are to be relied on, the arguments were all on one side of the question; for there is not in the record, which is said to contain the Pennsylvania debates, a word against the ratification of the constitution; although we all know that arguments were warmly urged on both sides.

But the Framers were so smart and prescient, amirite?

Most alarming...has been the effort by some to intimidate and coerce electors duly designated in a handful of states to change their vote when they cast them in less than three weeks.

These attacks, not only on the integrity of the Electoral College, but on the electors themselves, are unprecedented, unseemly and precisely what the Framers predicted.

Yes, the Framers had such great predictive faculties that their original implementation of the Electoral College failed in the first national election not involving the unanimously-elected Father of His Country, resulting in the 12th Amendment.  Surely they foresaw the age of social media and online petitions!

Ah well, the sense of the people is as the sense of the people does.  Somedays I really do think we should have a new Convention just to let the whole fucking thing fall apart, which it's trying to do now regardless.  At least New England could go its own way the way we threatened to a couple times before the Civil War.  The West Coast is welcome to join in the fun, too.


January 8, 2017 in Constitution, Schmonstitution | Permalink


I would welcome the dissolution of the United States if it meant that New England could enjoy the benefits of a modern constitution as part of Canada. I don't favor that as a first choice or even a third but in the absence of any chance of fixing the broken United States I'd much prefer it. And it's looking less and less like it's going to get fixed.

Posted by: Anthony McCarthy | Jan 8, 2017 3:00:35 PM

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