Yesterday, I posted an update on John Mikhail’s remarkable findings on Blackstone’s broad use of the word “emoluments” to apply to private transactions and benefits, much broader than the Trump lawyers’ narrow interpretation. Soon after, a few scholars returned to the argument, “But George Washington did it!”
George Washington bought federal land at an auction in 1793 while president. He also solicited personal business help from an English official. The argument goes: If George Washington did it, then he must not have thought it was an illegal emolument, and if he didn’t think so (nor if a handful of other people involved didn’t think so), then it wasn’t an emolument in the term’s original meaning. You can read Seth Barrett Tillman’s article here, and you can read Eugene Kantorovich’s pieces here and here. (Kantorovich’s position seems to be more suggestive and open-ended. Tillman seems to think Washington’s transactions as conclusive evidence of the clause’s narrow original meaning.
“But Washington did it” arguments are not only weak, but in fact, Washington’s effort to keep these dealings quiet at least suggests he understood they were politically, legally, and maybe constitutionally problematic.
I make four points in this post: 1. The post-ratification actions of the Framers are not treated as dispositive of constitutional meaning (See the Alien and Sedition Acts and the Judiciary Act of 1789). 2. We should not assume the Framers could do no wrong. Tillman points out that they frequently accepted presents, but because this violated an obvious part of the clause, his point backfires. 3. Private/secret actions have little import for original public meaning. 4. Washington’s secrecy is a problem for Trump’s lawyers and Tillman’s argument.
I also thought my friend Ron Fein immediately made a solid rebuttal on Twitter in April, and I repost them below.
- Our courts do not treat the practices of the Framing generation as dispositive, and especially not the subsequent practices while governing in the early republic. Two obvious examples: A) John Adams and the Federalists passed and signed the Alien and Sedition Acts in 1798, which clearly infringed on freedom of speech and of the press. It violated the First Amendment not based on our modern sensibilities; it violated the First Amendment on its face at the time. Adams wasn’t at the Philadelphia Convention, but he is rightly considered a Constitutional Framer, and I’m pretty sure you’d find Convention delegates in Congress in 1798. We don’t allow Adams’ unconstitutional error undermine our interpretation of the First Amendment today. B) The first Congress passed the Judiciary Act of 1789, part of the which the Supreme Court famously struck down in Marbury v. Madison in 1801. Chief Justice John Marshall did not care how many Framers voted for the act in Congress. It was still unconstitutional. I’ll add one more example: One could make the argument that the Fugitive Slave Act of 1793 impermissibly broad or unconstitutional on originalist grounds, regardless of how many Framers voted for it, and regardless of whether Washington signed it. Even the open, public actions of the Founders as officials in the 1790s do not have strong interpretive weight for the 1787 text.
2. This observation is part of a larger point about the Constitution and the Framers. They were not writing because they were worried about abuses of power a century or two later. They were actively concerned with limiting government and officials in the immediate future. They rightly worried how power, influence, interests, or faction could corrupt in the 1790s, even if they hoped they might be in power in the 1790s. So it would not have shocked the Founding generation that some of their own colleagues may have bent the rules or crossed the lines they had drawn themselves. In a Twitter exchange this morning, Seth Barrett Tillman noted that Washington, Jefferson, Madison, and Monroe kept gifts from diplomats without Congress’s consent. As opposed to this facts being evidence for Tillman’s reading, it is actually evidence to the contrary: the “Founding Fathers” sometimes crossed legal lines and behaved illegally. The Foreign Emoluments clause text could not be more clear about actual gifts (i.e., presents):
“[N]o person holding any office of profit or trust under them, 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.”
So if Washington, Jefferson, Madison, and Monroe kept gifts from foreign states without congressional consent, plainly violating the Constitution, should we just allow their post-ratification behavior to be a constitional amendment overturning the explicit text? The text is more important than their self-dealing conduct, whether it is the clear wording of “present” or the less clear wording of “emolument.” [Correction: Originally I referred to “gift” in this sentence, after noting the similarities between the word “gift” and “present” above. I have corrected the sentence to clarify. Thanks to Seth Tillman for the suggestion.]
I think Tillman’s arguments (and perhaps Kantorovich, too) expose a deeper problem with originalism as it is too often practiced: it is sometimes a legal argument based on hero worship of the Framers, as if they were infinitely wise and could do no wrong. WWFD or WDFD? Would would the Founders do? What did the Founders do?
Here, the argument seems to start with the premise: If Washington did it, it must have been OK. In fact, Tillman more or less makes his premise explicit in his article (see below, and see p. 4 of his article on SSRN). Some originalists don’t seem to take seriously that Washington, Hamilton, Madison, etc. were fallible human beings who could be corrupted by self-interest or pragmatic power politics. In fact, they wrote a constitution precisely because they understood over time, well-intentioned leaders could make errors of judgment and abuse their power. They drafted their new Constitution to both create and to limit their brand new government, as soon as it would get off the ground. So the fact that some of the Framers (Washington, Madison, Monroe, Jefferson, and maybe others) obviously violated the Foreign Emoluments clause with gifts in the 1790s (despite their earlier understanding from 1787) is consistent with the view that Washington also might have violated the Foreign and Domestic Emoluments clauses in the 1790s. These Framers sometimes acted unconstitutionally once in power, just as they feared they might when they met in Philadelphia.
3. So what about private and non-publicized actions? Tillman’s argument is particularly problematic, because non-publicized actions are not evidence of original public meaning. At least Kantorovich concedes that his evidence of Washington’s business contacts with English officials were deliberately kept private, perhaps because they were politically embarrassing, but maybe because they were legally dubious. Let me say more about the significance of “original public meaning,” a more legitimate approach to originalism than “original intent.” It’s sometimes called Originalism 2.0. The first approach to originalism focused on what the authors “intended” in the Philadelphia Convention of 1787, to get into their heads and their expectations. It was a literary approach, but it was not a solid constitutional approach, because the drafting and proposing a Constitution was not the same thing as making constitutional law. The Constitution did not become law with the Convention Delegates writing clauses or voting yes. It became law with the state ratification conventions voting yes after long public debate. From a legal point of view, it is far more important what the public understood than what the writers intended. A book becomes literature when it is written, so intent matters; a constitutional clause becomes law only once it is ratified by the public, so public meaning matters far more than writers’ intent.
In the most generous reading of Tillman, Washington’s conduct perhaps reflects his own “original intent” for the Emoluments clauses (although even then, the conduct is blurred from original intent through self-interest). But conduct that was not exposed to wide publicity and deliberation does not relate to the broader public meaning. Tillman emphasizes the credentials of the three federal commissioners (auctioneers) who sold Washington the land (two members of the Philadelphia convention, two of the state ratifying convention, among other Framer qualifications). But they also were shaded by self-interest in selling more land, especially to the President, perhaps to get in his good graces. The salesmen are not evidence for a limited Emoluments clause; they are reasons why the Framers worried about political insider self-dealing in the first place.
Unless I have missed some evidence, Tillman’s only claim that Washington’s land purchase was “public” is in footnote 13, based on two sources: a certificate of purchase and a private letter to those same commissioners “indicating that Washington believed and intended for his purchases of public land were known to the public.” All the certificate would show is that the purchase was not completely concealed from the legal authorities. They probably had to file a certificate in order to give Washington title (ownership) of the land, but my assumption is that certificate was a piece of paper than disappeared into a filing system in the early bureaucracy. Neither the certificate nor Washington’s private letter show that there was any public awareness of the land deal, let alone any deliberation about its legality. The “auction” may have been in a large public venue, but it also may have been arranged in a backroom. I don’t think we know either way from this record. The land deal has little weight in terms of original public meaning. In fact, the lack of publicity might suggest that Washington and the commissioners wanted to keep it quiet, no matter what Washington’s letter to the commissioners said.
[Update: In his original SSRN draft, Tillman did not include evidence that the auction was publicized. On June 16, 2017, Tillman filed an amicus brief that offers evidence that the auction was advertised in advance and was public, although it is still unclear from the footnotes and sources cited if there were any newspaper coverage of Washington’s purchases at the auction. It is possible that Washington himself was confused about whether the acquisition of land, as opposed to a payment, could be an emolument. Or perhaps he was being conveniently selective or forgetful about the emoluments clause.]
4. Where the argument backfires: Washington’s secrecy.
On this question, Tillman pushes his argument so far that it falls apart and then backfires. He suggests:
“[F]rom the perspective of modern, as opposed to eighteenth century, governance norms, President Washington’s business transactions posed a nonfrivolous risk of moral hazard, conflicts, and corruption. Unlike transactions struck between genuinely adverse profit-maximizing parties at arms-length, President Washington was speculating on land in public auctions— that is, public auctions managed by commissioners whom he had personally appointed. As a result, Washington was on both sides of each and every one of these transactions; yet, no one then, or since, has ever impugned the propriety of his conduct, much less the legal validity or constitutionality of his purchases.”
Tillman’s argument here actually points to the opposite conclusion: Washington’s land speculation was indeed so shady in terms of insider advantage, political self-dealing, and abuse of his position as president that if it had been publicized at all (and not just a quiet filing of a certificate), his political opponents would have screamed about his corruption. Tillman acknowledges that an opposition had grown in Congress, and indeed, historians place the founding of the Democratic-Republican Party in 1791-92. Tillman suggests that late 18th century norms may have tolerated such deals, but his intuition is not consistent with the background of the American revolution, the influence of English self-dealing (see the South Sea Bubble of the 1720s, the rallying against insider Whig Junto corruption, the revolutionaries’ critique of British colonial self-dealing and insider trade monopolies. If anything, early Americans were more sensitive to officials’ corruption than modern Americans. The infamous Yazoo Land Fraud exploded just one year later (1794-95), and because Washington engaged in similarly sketchy dealings, his opponents would have connected the events if they had known about them. The fact that there seems to be no evidence of any opposition complaint is strong evidence that this so-called public “auction” may have been a quiet arrangement kept out of the public eye. If Tillman thinks no one ever has “impugned” Washington’s land deal, he may want to update that sentence: I’ve seen other commentators question Washington’s deal as improper, and I’ll impugn that deal here. Too bad it seems to have been hidden from Washington’s contemporaries.
In fact, there is other evidence that Washington purposely kept his business dealings quiet. As Kontorovich acknowledges the limitations of his findings, Washington himself said he wanted to keep secret his contacts with an English official. He quotes Washington’s letter: “He suggested that ‘in the opinion of others, there [may] be impropriety’ in his solicitation but makes clear that he himself disagreed with that position.” Kantorovich thinks Washington was worried about politics, rather than legality. I’m not sure how he knows that, or how we can distinguish between the two. That Washington wanted to keep his business contacts with the English official a secreton balance creates more Emolments problems and solutions.
Tillman observes, “The emoluments-are-any-pecuniary-advantage position [i.e., the CREW position] amounts to: (1) President Washington was at best grossly negligent, if not crooked; (2) Washington’s allies openly supported obvious and profound constitutional lawlessness; and (3) Washington’s political opponents were altogether and unaccountably silent—silent in Congress, silent in newspapers, and silent even in their private correspondence. The emoluments-are-any-pecuniary-advantage position amounts to a naked assertion by twenty-first century legal academics that they understand the Constitution’s binding legal meaning better than those who drafted it, ratified it, and put it into effect during the Washington administration.”
First, I don’t think one needs to conclude that Washington was “crooked” if one concludes he crossed the line in this case. The Emoluments clause functions as a prophylactic rule, a bright line barrier to prevent more egregious corruption, a “fence around the law.” He violated the Constitution, but that is not at all the same as saying he is a criminal. The Emoluments Clause is not an anti-bribery clause, and it has no criminal sanctions. We have overlooked this rule for many years, and Washington perhaps overlooked it then (if we are being generous). Is it so hard to imagine a venerable hero, a Founding Father, negligent in parts of his life, even abusing his power? Broadway seems to be making us more comfortable with recognizing both their heroism and their flaws. Why not call it gross negligence? If we knew more about the deal and the land’s market value, we might be able to say more than that.
Second, I think Tillman creates a strawman for his second option, that “Washington’s allies openly supported obvious and profound constitutional lawlessness.” Of course not. The commissioners seemed to cooperate with formally “public” but actually unpublicized land dealings. Washington’s allies seem to have enabled an unconstitutional act under the radar, for the president’s financial gain and their own political gain. And I think I’ve addressed why, thirdly, Washington’s opponents didn’t complain. They don’t seem to have known.
In conclusion, I think the evidence put forth by Tillman and Kantorovich can be interpreted as strengthening the broad interpretation of “Emolument.” Washington seems deliberately to have kept both his land deal and his business contacts with an English official quiet and even a secret. Why? Only because of their impolitic appearance? Or maybe those same political and moral instincts of 1793 were the original driving force behind including the Emoluments prohibitions in the Constitution?
And once again, I note that if there is any ambiguity about which reading is correct, the Framers themselves told us for foreign emoluments, use the broad reading: “emoluments of any kind whatever.”
I add Ron Fein’s April Twitter thread here, edited for readability:
“A brief thread on this @EVKontorovich piece re: George Washington’s solicitation of UK gov’t official’s help in renting out his lands… Caveat: I am no historian, & have great respect 4 @EVKontorovich‘s work in other areas. But I don’t think this example bears much weight. At outset, my view in general: while conduct of Pres.Washington is *a* source for constitutional interp, I think it’s relatively weak. Weak compared 2 *pre*-ratification materials, e.g., The Federalist, English common law, dictionaries, convention debates….state ratification debates, Blackstone, etc. – public materials part of “the record” for consideration of adoption of Constitution. Conduct of Pres.Washington even lower on scale. Within that region: highest val= issues w/vigorous const. discussion/debate in Cabinet…but secret conduct of Pres.GW offers very little interpretive value. That is what we seem to have here: secret ltr from GW. NB @SethBTillman‘s args for precedential value of GW’s actions largely evaporate for action GW did alone in secret. General precedential value of GW’s acts probably at nadir for secret ltr 4 which he didn’t consult w/cabinet/other elder statesmen. We have several possibilities:
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What wd have happened if he’d asked his AG, Edmund Jennings Randolph, Mr. “If discovered, he may be impeached” on foreign emoluments? Would Edmund Jennings Randolph have given him the same advice
@NormEisen or@RWPUSA might have? We can’t know, of course. But we certainly can’t rely on a view of “If Pres.Washington does it, that means that it is not illegal.” Kontorovich does not make last arg, to be clear.) But GW-deference shd be very low for secret ltr in which he confesses unease. To use an analogy from administrative law, this example would not come remotely close to Skidmore deference, let alone Chevron. -
As for GW’s rep for propriety: he seems to have been worried abt his finances in retirement, & wrote secretly to a foreign official asking for $ help & revealing concern it wd look bad. Maybe this isn’t best example to rely on GW’s unimpeachable rep for propriety. Anyway, it’s an interesting historical factoid, but as a constitutional datum, in my view, rather weak. I wd reconsider if evidence were adduced showing GW (1) carefully considered the emoluments Q himself, and (2) consulted another Framer on this Q. (Those wouldn’t be dispositive, but wd elevate its value.) As is, it’s cool trivia but weak datum for constitutional argument.
[Update on June 20: In his original SSRN draft, Tillman did not include evidence that the auction was publicized. On June 16, 2017, Tillman filed an amicus brief that offers evidence that the auction was advertised in advance and was public, although it is still unclear from the footnotes and sources cited if there were any newspaper coverage of Washington’s purchases at the auction. It is possible that Washington himself was confused about whether the acquisition of land, as opposed to a payment, could be an emolument. Or perhaps he was being conveniently selective or forgetful about the emoluments clause.]
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