Jacob Henry, Religious Freedom, and Eisen & Painter’s Lawsuit Against President Donald Trump (with UPDATE)

Like many of the post-revolutionary constitutions of the newly independent states, the 1776 Constitution of North Carolina limited eligibility in regard to (some) positions in the state government. Only Protestants were eligible. Specifically, Article XXXII provided:

That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.[1]

In 1809, while the 1776 North Carolina Constitution was still in force, Jacob Henry was elected (actually reelected) to the House of Commons, i.e., the lower house of the North Carolina legislature. Henry was Jewish.[2] His qualifications were contested, and the members of the Commons acted as judges of the election.[3] A celebrated debate about religious freedom was to take place. “Mr. Henry boldly and successfully defended his rights, though a most curious construction of Article XXXII was adopted in order to enable him to retain his seat.”[4]

Interestingly, there is no record (of which I am aware) indicating that wide ranging concerns about religious freedom or religious establishments swung the members. It appears that what interested the members was not abstract norms, fairness, or even the purposes of Article XXXII; rather, what swung the members’ decision was their understanding of the state constitution’s actual language.[5] As Professor Orth has explained: “The house…refused to exclude him, apparently on the ground that a seat in the General Assembly was not an ‘Office…of Trust or Profit’ within the meaning of the North Carolina Constitution ….”[6] To put it another way:

Despite all this, however, the victory [for freedom of religion in North Carolina] was one in form only, not in substance. As a matter of fact, the [Article XXXII Religious] [T]est was more firmly implanted than ever. The House of Commons in permitting Henry to retain his seat…emphasized rather than weakened its prohibition. The decision was based on the fact that the Constitution prohibited non-Protestants from holding office in any civil department of the State. This was interpreted not to exclude such persons from serving in the legislature. The legislative office, it was said, was above all civil offices.[7]

Now this is all interesting. But what does it have to with President Trump?

A lawsuit has been brought against President Trump alleging that his business transactions with foreign state-owned commercial entities amount to violations of the United States Constitution’s Foreign Emoluments Clause. The Foreign Emoluments Clause provides: “[N]o Person holding any Office of Profit or Trust under them [i.e., the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”[8]

This lawsuit has been brought by, among others, Ambassador Eisen, Professor Painter, and Professor Teachout. Teachout has argued that the Foreign Emoluments Clause’s office-language extends to elected federal officials, including members of Congress and the presidency.[9] Eisen and Painter have stated: “The [Foreign] Emoluments Clause applies to all persons holding an office of trust or profit with the United States government—no exceptions. It applies to the president, the vice president, and the members of Congress. No one is above the law.”[10]

Now I think the language of the North Carolina Constitution of 1776 closely tracks the language in the United States Constitution’s Foreign Emoluments Clause. If anything the North Carolina provision, using office or place of trust or profit-language, would seem to be broader than the Foreign Emoluments Clause’s more limited language, which merely extends to office of profit or trust. If that is correct, and if one credits the decision of the North Carolina House of Commons, it would seem to follow that the Foreign Emoluments Clause does not reach members of Congress.

Now Teachout, Eisen, and Painter have argued that the Foreign Emoluments Clause’s office-language extends to members of Congress. If they are wrong about that (as I think they are), perhaps they are also wrong in asserting that the Foreign Emoluments Clause extends to the presidency? If the Constitution’s office-language does not reach members of Congress, it is not because members are “above the law,”[11] but because the Constitution itself uses language which was, is, remains inapplicable to such positions. Once one acknowledges that some government positions, including important positions such as Representative and Senator, fall beyond the scope of the Constitution’s office of profit or trust-language, then one can no longer rely on legal intuitions, such as no one is above the law. Rather, here, we must ask, given the language and purposes of the Foreign Emoluments Clause, is a person elected to the office of President more like a person elected to Congress (to whom the Foreign Emoluments Clause does not apply) or more like a subordinate appointed Executive Branch officer (to whom the clause does apply)?

It would be good to have that scholarly discussion. But when we have discussion, let us start from the baseline that the Foreign Emoluments Clause does not and cannot apply to members of Congress. And let us also start from the baseline that if Teachout’s, Eisen’s, and Painter’s legal intuitions have been wrong about so significant an issue (i.e., the applicability of the Foreign Emoluments Clause to members of Congress), then their intuitions—rooted in modern English usage related to “office” and modern norms related to good governance—cannot possibly inform our understanding of the Constitution’s Foreign Emoluments Clause.

Seth

Citation: Seth Barrett Tillman, Jacob Henry, Religious Freedom, and Eisen & Painter’s Lawsuit Against President Donald Trump, New Reform Club (April 7, 2017), http://tinyurl.com/lboqrgz

UPDATE: Seth Barrett Tillman, New Sources on the 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat (posted Nov. 25, 2019) <https://ssrn.com/abstract=3498217>.

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[1] Article XXXII in Constitution of North Carolina: December 18, 1776, The Avalon Project (last visited Apr. 7, 2017), http://avalon.law.yale.edu/18th_century/nc07.asp#b5 (emphasis added).

[2] See Jacob Henry may have been Michael Gratz’s brother. See generally Leon Hühner, The Struggle for Religious Liberty in North Carolina, with Special Reference to the Jews, 16 Publications of the American Jewish Historical Society 37, 46–47 (1907); id. at 47 n.31 (“A famous [Philadelphia] merchant in Revolutionary days; the father of Rebecca Gratz, who was the friend of Washington Irving.”).

[3] See Article X (“That the Senate and House of Commons, when met, shall each have power to choose a speaker and other their officers; be judges of the qualifications and elections of their members; sit upon their own adjournments from day to day, and prepare bills, to be passed into laws.” (emphasis added)), in Constitution of North Carolina, supra note 1.

[4] Supra note 2, at 47-48.

[5] See id. at 52 (“Despite all this, however, the victory was one in form only, not in substance. As a matter of fact, the test was more firmly implanted than ever.”).

[6] Jacob V. Orth & Paul Martin Newby, The North Carolina State Constitution 8 (2d ed. 2013) (footnote omitted) (emphasis added).

[7] Supra note 2, at 52 (footnotes omitted) (emphasis in the original).

[8] U.S. CONST. art. I, § 9, cl. 8 (emphasis added).

[9] See, e.g., Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 354, 361–62 (2009) (arguing that the Foreign Emoluments Clause applies to members of Congress); id. at 366 (arguing that the Foreign Emoluments Clause applies to the presidency).

[10] Norman L. Eisen & Richard W. Painter, Trump Could Be in Violation of the Constitution His First Day in Office, The Atlantic (Dec. 7, 2016), http://tinyurl.com/zlgrh6u (emphasis added).

[11] Id.