"There is always a philosophy for lack of courage."—Albert Camus

Monday, December 12, 2016

Paul Blumenthal’s Huffington Post Mistake



There is one person who seemed to think that the [Foreign Emoluments] [C]lause did not apply to [the President]. President George Washington received gifts from both the French ambassador to the United States and from the Marquis de Lafayette. The latter sent Washington the key to the Bastille after its storming during the early days of the French Revolution. This occurred when Lafayette was a member of the Estates-General and commander in chief of the national guard.

Paul Blumenthal, What Is The Emoluments Clause And How Does It Apply To Donald Trump?, The Huffington Post (Dec. 1, 2016, 7:39 PM ET), http://tinyurl.com/hety2au. The point of the passage is that Washington was a Framer. He took an oath as President to uphold the Constitution. He received two French diplomatic gifts: he accepted both, and he kept both. He never asked for congressional consent, nor did Congress grant its consent. 

As far as I know, I am the only scholar to have made these connections and the larger point: the current idée fixe that the Foreign Emoluments Clause applies to the presidency cannot be squared with President Washington’s conduct. Full stop. Washington’s conduct crystallizes the meaning of what might otherwise be ambiguous constitutional text. Unless you are willing to argue that Washington was an idiot or a crook that determines the issue at hand. The Foreign Emoluments Clause does not apply to the President. Moreover, the dominant view is that Washington’s conduct deserves special deference in regard to both “foreign affairs” and “presidential etiquette.”[1] 


I note that … Blumenthal does not mention my name. Blumenthal does not cite (or link to) any of my publications. Blumenthal does not even suggest that the idea he put forward is one which originated in someone else’s scholarly publications. Blumenthal just makes the argument above as if it were part of some well-known historical narrative. It is not.

Still it is a relief that Blumenthal does not mention me or my publications. Why? Blumenthal wrote “[LaFayette] sent Washington the key to the Bastille after its storming during the early days of the French Revolution. This occurred when Lafayette was a member of the Estates-General ….” (emphasis added) Blumenthal is mistaken here. The storming of the Bastille was on July 14, 1789. LaFayette gave Washington the key to the Bastille during March 1790. Both these events happened after the Estates-General ceased to exist, circa June 1789. Contra Blumenthal, neither event happened “when LaFayette was a member of the Estates-General.”

One way to avoid elementary errors is to quote and cite other people’s scholarship accurately. Or Mr Blumenthal could have interviewed me. He still can, and he should, particularly if he has interviewed several others who have taken the opposing point of view.

I am so glad Mr Bristow made me memorize all those dates back in tenth grade.


Seth 

[1] See Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By 309–10 (2012); id. at 309 (“Over the centuries, the constitutional understandings that crystallized during the Washington administration have enjoyed special authority on a wide range of issues ....”); Letter from George Washington to Bushrod Washington (July 27, 1789), in 30 The Papers of George Washington 366, 366 (John C. Fitzpatrick ed., 1939) (“You cannot doubt my wishes to see you appointed to any office of honor or emolument in the new government .... My political conduct in nominations ... must be exceedingly circumspect and proof against just criticism, for the Eyes of Argus are upon me, and no slip will pass unnoticed that can be improved into a supposed partiality for friends or relatives.”); Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 642 n.450 (1994) (“[I]t seems to us that if anyone’s post-ratification views merit deference, Washington’s do. Washington, always sensitive to the opinions of his countrymen, consistently strove to stay within the confines of the Constitution.”); see also Anne Twomey, The Constitution of New South Wales 438 (2004) (“As it is an elective office, and not generally subject to the direction or supervision of the government, one would assume that it is not an office held ‘under the Crown’.”).

Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

Seth Barrett Tillman, Tillman’s Response to a Liberal Journalist’s Inquiries, The New Reform Club (Dec. 7, 2016, 5:50 AM). [here]  


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