The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout

Seth Barrett Tillman*

Editor's Note: This Essay is Part III of an exchange between Professors Seth Barrett Tillman and Zephyr Teachout on public corruption, policy, and the scope of the constitutional anti-corruption principle. Part I of the exchange is available here, and Part II is available here. Part IV of the exchange is forthcoming July 2013.

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I. The Debate So Far

In her 2009 Cornell Law Review article, The Anti-Corruption Principle,[1] and in subsequent publications (including here on Northwestern University Law Review Colloquy[2]), Professor Teachout thoroughly analyzed the text of the Constitution and the records of its framing, primarily relying upon three clauses[3]: the Ineligibility Clause, the Incompatibility Clause, and the Foreign Emoluments Clause.[4] This last clause, the Foreign Emoluments Clause, proscribes (at least some) United States officials from accepting gifts from foreign governments absent congressional consent. Teachout's key insight was to analogize corporate contributions and spending in domestic elections to these proscribed foreign government gifts. Like foreign governments, domestic corporations do not owe a duty of loyalty to the United States. A domestic corporation's duty of loyalty is owed to its stockholders, not to our polity as a whole. On the strength of this analogy, the Foreign Emoluments Clause enjoyed pride of place in her analysis; or, at least, that is the way her paper was commonly understood.[5] Teachout observes that the purpose, if not the primary purpose, behind these three provisions (and that of many other constitutional provisions) was to prevent or limit corruption. On this basis, she suggests that the Constitution embodies a structural anti-corruption principle. At this very generic level of abstraction, Teachout and I agree.

Grutter's Denouement: Three Templates from the Roberts Court

Ellen D. Katz*

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This month, the Supreme Court will hear argument in Fisher v. University of Texas at Austin,[1] a case that is widely expected to end race-based affirmative action in higher education. A decade ago, Grutter v. Bollinger[2] upheld that practice, holding that public universities and colleges could lawfully include race as one factor in admissions decisions to foster racial diversity on campus. At the time, the Court speculated that such diversity would be achieved in twenty-five years and that race-based affirmative action thus would no longer be necessary in 2028.[3] The Roberts Court now appears ready to ditch the practice much sooner.

This prospect should come as no surprise. Vulnerable from the start, Grutter was the product of a deeply divided Court and has lacked majority support among the Justices ever since its author, Justice O'Connor, retired in 2005. Since then, the Roberts Court has voiced its hostility to race-based criteria in a host of contexts and has also repeatedly shown its willingness to displace precedent it dislikes.[4] Adding the fact that Fisher contains none of the characteristics that typically justify Supreme Court review and it looks like a safe bet that the Roberts Court did not take the case to affirm the wisdom of diversity-seeking affirmative action. It is far more likely that it will use Fisher as a vehicle to condemn Grutter and the type of decisionmaking it fosters.

Gifts, Offices, and Corruption

Zephyr Teachout*

Editor's Note: This Essay is Part II of an exchange between Professors Seth Barrett Tillman and Zephyr Teachout on public corruption, policy, and the scope of the constitutional anti-corruption principle. Part I of the exchange is available here. Parts III and IV of the exchange are forthcoming September 2012. For questions or comments about the exchange, or to enquire about submitting a contribution, please contact the Senior Colloquy Editor.

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I. Four Disputes and One Agreement

When the Americans set up their new, independent government, they brought an original attitude towards offices and gifts which separated them from Europe. Gifts, which were part of European diplomatic culture, were recast as corrupt influences. And offices were viewed with fear of their corrupting power, given the examples of Europe. The "corner-stone" of the new Constitution, according to one delegate, was the provision designed to prevent lucrative offices from being sold and traded for political power.[1] This Essay, a response to Seth Barrett Tillman's challenge to my previous writing on founding era anxiety about corruption, is a partial exploration of the scope of the clauses relating to gifts and office holding.

Tillman[2] and I disagree about four significant things, but we agree about one even more significant thing. First, we disagree about how to interpret the changes in the Foreign Emoluments Clause from the Articles of Confederation to the Constitution. Second, we disagree about the precision with which the words "office under/of the United States" were used in the Constitution. Third, we disagree about how important these disputes are for contemporary constitutional doctrine. Fourth, we disagree about the degree of obsession with corruption exhibited by the men who wrote the original American Constitution. The bulk of this response will be to explain some of my thoughts on these disagreements.

Justifying Diversity in the Federal Judiciary

Carl Tobias*

Editor's Note: This Essay is a response to Nancy Scherer, Diversifying the Federal Bench: Is Universal Legitimacy for the U.S. Justice System Possible? , 105 NW. U. L. Rev. 587 (2011).

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Introduction

Professor Nancy Scherer has offered a proposal to maximize diversity and legitimacy in the federal judiciary, a profound enigma that vexes judicial selection.[1] This is important because the selection process involves the very core of law and politics:[2] the President chooses nominees whom the Senate approves; once confirmed, these judges resolve controversial political issues.[3] Scherer proceeds by first examining rationales for and against a court-appointment strategy that would enhance diversity. She observes that both champions and critics of diversity share the goal of increased judicial legitimacy, although they obviously differ on how best to achieve it. Scherer then suggests a new solution, predicated on this common ground, to resolve the disagreement—urging diversity advocates to articulate the concrete benefits that expanding diversity can afford majorities and to collect and synthesize empirical information confirming these advantages.

This Essay descriptively and critically reviews Scherer's article. Although her account provides valuable insights into increasing diversity and legitimacy, it understates the crucial influence of politics. Indeed, the growing politicization of the selection process, which implicates the debate over diversity, could seriously undermine judicial legitimacy. However, President Barack Obama's approach to judicial appointments elucidates the issue and could point the way forward. This Essay thus scrutinizes Obama's judicial selection effort, which confirms many ideas that Scherer espouses while showing how political deficiencies in the modern selection process erode diversity and legitimacy, and perhaps Scherer's provocative solution. This response ultimately discusses some promising measures beyond Scherer's recommendation that could enhance diversity and legitimacy in light of the threat that politicization poses.

Do the Right Thing: Understanding the Interest-Convergence Thesis

Stephen M. Feldman*

Editor's Note: This Essay is a response to Justin Driver, Rethinking the Interest-Convergence Thesis , 105 NW. U. L. Rev. 149 (2011).

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Introduction

Professor Derrick Bell was one of the most influential constitutional scholars of the last fifty years. He helped create a genre of legal scholarship—critical race theory—and pioneered storytelling as a scholarly method. His insights spurred civil rights scholars as well as thinkers in other fields. One of his most important legacies—he died on October 5, 2011—is the interest-convergence thesis, which asserts that, historically, African Americans gained social justice primarily when their interests converged with the interests of the white majority.[1] Many scholars not only accept the validity of Bell's thesis but also extend its application to other contexts.[2]

In a recently published article, Rethinking the Interest-Convergence Thesis, Professor Justin Driver calls this legacy into question.[3] After acknowledging the prominence of Bell's scholarship in general, and the significance of the interest-convergence thesis in particular, Driver vigorously criticizes the thesis. He argues that it suffers from "four analytical flaws":[4]

The Right to Exclude in the Shadow of the Cathedral: A Response to Parchomovsky and Stein

Eric R. Claeys[*]

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  Introduction: Philosophy and Economics under the Cathedral

Reconceptualizing Trespass,[1] by Professors Gideon Parchomovsky and Alex Stein, falls in the genre of law and economics scholarship inspired by Guido Calabresi and A. Douglas Melamed’s classic article, One View of the Cathedral (“the Cathedral”).[2]  Reconceptualizing Trespass argues that, in property torts, scholarship under the Cathedral has focused too much on damage awards with the features of Cathedral liability rules, and too little on damage awards that have the features of Cathedral property rules.  Ideally, the authors argue, property rule damages should award owners approximations of their subjective values over their property; as a second-best substitute, such damages should award owners restitution.

In this Response, I am significantly disadvantaged by the limitation that I sympathize strongly with Parchomovsky and Stein’s prescriptions.[3]  Nevertheless, I am confident that I can offer an enlightening perspective on their essay, because I prefer to reach their prescriptions by a different method: the conceptual and moral philosophy behind property law.  From the perspective of those fields, Reconceptualizing Trespass presents a mixed but extremely interesting picture.

If we focus closely on Reconceptualizing Trespass’s doctrinal proposals about trespass damages, the Essay is right: it uncovers important evidence corroborating existing philosophical scholarship on damage remedies for property torts, and it highlights an important gap in that scholarship.  From a broader perspective, however, Reconceptualizing Trespass confirms criticisms that legal philosophers have lodged against the Cathedral’s property/liability rule scheme.  Many legal scholars regard the Cathedral as a landmark, and it seems to frame clearly the policy questions latent in remedies disputes without settling them in any particular way.  Yet legal philosophers have raised serious questions about whether the property/liability scheme remains faithful to basic legal concepts—especially the “wrong” that damage awards are supposed to remedy in torts to victims’ autonomy interests, or the “exclusivity” that property guarantees owners in relation to their assets.  Although Reconceptualizing Trespass makes several significant contributions, legal philosophers may fairly wonder whether its greatest contributions confirm their criticisms of the Cathedral’s approach to remedies.

Thoughts on the Churn Law

Michael Halley[*]

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Introduction

A grand alliance is forming, and new trenches are being dug on the old and hallowed battleground of the Constitution.  Waving the stars and stripes of “constitutional design,”[1] and richly equipping themselves with the weaponry of reason, scholars like Richard Fallon, Sanford Levinson, and Jack Balkin have taken the field to determine “what provisions for judicial review (if any) ought to exist in constitutions for all societies whose people and legislatures are seriously committed to respecting rights,”[2] and to avoiding “constitutional crises” by “careful planning.”[3]  Fallon, a self-proclaimed “system-designer,” applauds himself for having “plowed rich ground.”[4]  Levinson and Balkin claim to be revealing a “secret”[5] that, if they are to be believed, has not only gone untold and unnoticed since the nation’s Founding, but could have avoided the near apocalypse of our Civil War.[6]

Frederick Schauer’s ambition—to breed a race of lawyers and judges equal to the ignominy of slavishly adhering to precedent—is no less breathtaking.  Asserting that “following precedents even when they seem wrong to the decision maker is . . . a large part of law,”[7] he proposes to conduct empirical experiments to determine: (1) “whether those who self-select for legal training (or are selected for legal training)” are superior, before receiving that training, “at subjugating their preferences for the right answer to a norm of precedent”; (2) “whether those who are trained in the constraints of precedent (recent graduates of law school, for example) are better at following uncomfortable (to them) precedents than those who have yet to receive such training”; and (3) “whether those who self-select for judging, or who are selected to be judges, are better at following precedent than practicing lawyers of similar experience.”[8]  Whether these scholars’ wholesale embrace of intelligent design is the means to perfect constitutional systems commensurate with the universal call for freedom, or whether it desecrates the Founders’ legacy of a constitutional frame attributable neither to “human genius” nor to “reason and reflection,” but only to “time and experience,”[9] remains to be decided; and it can only be hoped that the tenor of the debate will prove less rancorous than the all-out war currently raging between the proponents of intelligent design and those of evolution in the field of biology.