Following Up On The Foreign Emoluments Clause and Gerrymandering

by Dan McLaughlin

I hope you all subscribe to National Review; alongside a ton of great content by other writers, in the past two issues, I’ve covered why it’s a myth that the Republican majority in the House of Representatives is mostly the work of partisan gerrymandering, and why the Trump Organization’s business creates ethical conflict problems – but not ones that should violate the Constitution’s Foreign Emoluments Clause, so long as its business is confined to ordinary arms-length commerce. 

Writing on a deadline, however, means you sometimes get additional support for your thesis after you’ve gone to print. That’s the case now for both pieces.

In the gerrymander article, I cited, among others. the work of University of Michigan political scientist Jowei Chen with computer-simulated district-drawing exercises that test how much of the Republican advantage in legislative districts is gerrymandering and how much is simply the broader geographic distribution of Republican voters compared to highly concentrated urbanized Democrats. Well, Chen is at it again, in a recent article with Dartmouth quantitative social scientist David Cottrell that applies a similar methodology with more recent data:

We find that among states controlled by Republicans, about five Republican seats are gained through gerrymandering. And among states controlled by Democrats, about three Republican seats are lost by Gerrymandering. Moreover, Democrats gain about 1.75 seats from states subject to preclearance [under the Voting Rights Act]. This suggests that the Republican seat gain from Republican controlled states is counterbalanced by the seat loss in Democratic controlled and preclearance states…in states where gerrymandering does have a significant effect on congressional elections, the effect is relatively small. For example, other than in California [where it benefits Democrats], the partisan gain from gerrymandering amounts to no more than a fraction of a seat in any given state. While the total number of seats gained by Republicans is greater than the total number of seats gained by Democrats, the net effect of gerrymandering in Congress is only marginal. In fact, we find that Republicans are expected to net no more than one additional seat as result of it.

One interesting finding: while Chen and Cottrell find that the overall effect is minimal, they do find that preclearance under the Voting Rights Act creates seats for Democrats that would not exist under a race-neutral district-drawing process (different from the conventional wisdom that race-conscious gerrymandering actually benefits Republicans by clustering African-American voters in racial-enclave districts):

The preclearance states act to bolster Democratic representation, swapping Republican seats for Democrats. Without these pre-clearance states, Republicans would experience a slightly larger bias in aggregate seat share in Congress.

On the Foreign Emoluments Clause, I noted two competing views of what “emoluments” a federal officer (arguably including President Trump) may not receive from foreign government sources.  Norm Eisen, Richard Painter and Laurence Tribe advocate a broad view of “emoluments” to cover any sort of commerce between any foreign sovereign entity and the Trump Organization, a view so broad that it would hold President Obama to have violated the Foreign Emoluments Clause every time a foreign public library bought a copy of Dreams of My Father. That view is being currently pushed in litigation by CREW (Citizens for Responsibility and Ethics in Washington), the organization headed by Eisen and Painter. By contrast, University of Iowa Law Professor Andy Grewal marshalled historical evidence (mainly from the 19th century) showing that the traditional understanding of “emoluments” was limited to salary and other financial benefits attached to the holding of an office, and did not cover outside private business interests.

Grewal’s view receives significant additional support from a new originalist analysis by retired University of Montana Law Professor Robert Natelson, author of The Original Constitution: What It Actually Said and Meant. Prof. Natelson focuses entirely on historical evidence preceding the ratification of the Constitution by the last of the original thirteen states in 1790, including (1) the linguistic prorgress of the Foreign Emoluments Clause and the other two emoluments clauses through the Constitutional Convention, (2) the background language of the Maryland Constitution of 1776, which also contained an antecedent to the Clause, and (3) a historical overview of the Anglo-American reform movement from which the three emoluments clauses arose – a movement that emphasized reducing the cost of government, yet also advocated the recruitment into government of men with significant outside business interests. Among other things, Prof. Natelson examines how the Eisen/Painter/Tribe reading of “emoluments” in the Compensation Clause (which bars the president from receiving emoluments besides his salary from the states or the federal government) would have eliminated Virginia tobacco planters like Thomas Jefferson or James Madison from ever being considered for the presidency, given the nature of state involvement in the tobacco business at the time. He concludes:

Consider the consequences of barring any U.S. employee from receiving the benefits of business dealings with a foreign government without congressional consent. Doing so would have rendered it unconstitutional for almost any government employee to purchase the debt securities of foreign governments. It would have barred anyone from selling goods abroad where they might be purchased by a foreign government. It would have prevented an official from purchasing land from an Indian tribe if that tribe were recognized as a foreign nation. It would have discouraged public service by imposing crippling burdens on people involved in foreign commerce (and who necessarily engaged in transactions with foreign governments), such as the Confederation Secretary of Finance, Robert Morris. Such an interpretation would have repelled some of the very people the Constitution-makers wanted to attract to government service.

Justice Oliver Wendell Holmes, Jr. once pointed out that a page of history can be worth a volume of logic, so let us move away from legal logic-chopping and counter-factuals to some actual history. The Constitution’s emoluments provisions arose out of a reform movement that addressed benefits payable by reason of government employment. Measures enacted during that reform movement, including the Constitution’s emolument provisions, were the products of careful balancing of competing values. The foreign emoluments clause of the Articles had been construed narrowly. Known cases of real abuse had included (1) Charles II’s secret acceptance of cash from Louis XIV in transactions related to the Treaty of Dover (a “present”), (2) the practice of customs officials extracting fees from foreign governments for harbor services (“Emoluments”), and (3) the practice of governments granting “Offices” or “Titles” to show appreciation to foreign officials. All these abuses involved items received by reason of office. I know of no historical incidents that would have induced the founders to apply a construction that included honest business transactions…

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