Author Archives: Harold O'Grady

New Book List: Baseball and the Law

Brooklyn Law School Library’s New Books List for June contains 31 print titles and 11 eBook titles and ranges in subject matter from Abortion — Law and legislation;  Sexual minorities — Legal status, laws, — United States; Sex discrimination against women — Law and legislation — United States – History; Genocide – History; Capital punishment – History; and Detention of persons — Cuba — Guantánamo Bay Naval Base.

baseballThe title that caught the attention of this reader was Baseball Meets the Law: A Chronology of Decisions, Statutes and Other Legal Events by Edmund P. Edmonds, Notre Dame Law School and Frank G. Houdek, Southern Illinois University School of Law (Call No. KF3989.2. E36 2017). It is a book that strives to cite the entire field of baseball’s intersection with law with nearly 400 individual accounts that, taken together, give a clear picture of the profound effect that law has had on baseball. The chapters include Baseball Origins and Club Teams, 1791-1865 — Professionalization and the Rise of Leagues, 1866-1902 — The National Commission Era, 1903-1920 — Landis in Charge, 1921-1944 — Owners on Top, 1945-1965 — MLBPA and the Rise of the Players, 1966-1995 — Selig, Steroids and Baseball Prosperity. Sweeping in scope, this book leaves no stone unturned about court cases and other legal aspects associated with the national pastime. The authors have taken great pains to produce a magisterially inclusive volume that features a chronological text and a huge bibliography. The book, with its list of cases and statutes , is one that every fan or researcher needs on the shelf to answer any legal question pertaining to baseball.

The book begins by recalling that in 1791, a Pittsfield, Massachusetts, ordinance prohibited ball playing near the town’s meeting house. Ball games on Sundays were barred by a Pennsylvania statute in 1794. It goes on to the story that in 2015, a federal court held that baseball’s exemption from antitrust laws applied to franchise relocations. Another court overturned the conviction of Barry Bonds for obstruction of justice. A third denied a request by rooftop entrepreneurs to enjoin the construction of a massive video screen at Wrigley Field. This exhaustive chronology traces the effects the law has had on the national pastime, both pro and con, on and off the field, from the use of copyright to protect not only equipment but also “Take Me Out to the Ball Game”. An original recording, featuring Edward Meeker and the Edison Orchestra was among the sound recordings selected for preservation by the Library of Congress in its National Recording Registry in 2010. See Baseball’s Greatest Hits: The Music of Our National Game for more on the song including “Take Me Out to the Ball Game” and Suffrage and Love Triangle on the Baseball Diamond.

Johnny We Hardly Knew You. JFK’s 100th Birthday

Memorial Day, May 29, 2017, was John F. Kennedy’s 100th birthday. We remember him as the man who was the first Irish-Catholic president, as a man with the sharp wit and a beautiful family, as a man with perfect class, so missing in Washington today. He was the man most responsible for putting Americans on the moon. He was the first president in the 20th century to stand up for civil rights, essentially giving his life to have those bills passed, exactly as he wrote them, by President Johnson in the years following his death. He was the man who faced nuclear Armageddon during the Cuban Missile Crisis and who signed the Nuclear Test Ban Treaty, making the world a safer place. He worked at his office and managed to inspire young people.

Happy Birthday, Mr. President. You made a difference.

A recent article, The Myth of John F. Kennedy In Film and Television by Gregory Frame in 49 Film & History Issue 6, page 21 (Winter 2016) tells how President John F. Kennedy continues to cast an enormous shadow on U.S. politics, despite the relatively short duration of his tenure. His impact on American culture, history, and society is far from settled, with liberals wondering, for example, whether Kennedy would have withdrawn from Vietnam and would have sustained the cause of Civil Rights and with conservatives wondering how his personal character would have played out politically and whether his gun-shy approach to the military would have subverted American hegemony.

For a fascinating look at the legacy of President Kennedy, read the article by accessing it through the Brooklyn Law School Library’s OneSearch platform at this link. As the author concludes: “Holding on to the myth of Kennedy is like holding on to the myth of American exceptionalism, the eternally young nation, springing into the future with masculine vigor and promise and purpose. How much more desperate does a nation become for that myth after a financial crisis (2008) and extended wars (Iraq and Afghanistan), with little manifest appeal from its president (G.W. Bush) either to the intelligence of bookish academics or to the conscience of an international community? . . . . What yearning for the myth of JFK will emerge under Donald Trump? Or has reality television displaced myth as the paradigm for civic intelligence? Historians suggest that the presidency of John F. Kennedy might have been mediocre but that he nonetheless grasped the changing nature of politics in an image-dominated age; that he deserves credit for the skill with which he developed such an enduring image in the first place. And perhaps he does, for that image presides over the most powerful force in American culture: film and television.”

CambridgeAlso in OneSearch is a review by Iwan Morgan of The Cambridge Companion to John F. Kennedy by Andrew Hoberek available at this link. In the review, the author notes that “Modernity is the theme of many essays ranging from . . . exploration of Kennedy’s unprecedented and still unmatched capacity to project himself on television as the epitome of cool when alive to the significance of the Camelot legacy.” Kennedy’s modernity was more symbol than substance. His brief tenure has become an infinitely renewable resource of hope for anyone invested in the promise of the United States.

May New Book List: Fact and Fiction

The Brooklyn Law School Library May 1, 2017, New Book List is now online and has 52 print titles and 31 eBook titles. The subject areas consist of law, history and even fiction.   Subjects are Executive orders — United States – Corporate governance — United States; Judicial power — United States; Solo law practice — United States; War crime trials — History — 20th century; Sexual rights — United States — History; Scalia, Antonin; Trial practice — United States. Like law school libraries throughout the country, the BLS Library has scholarly material subjects for legal researchers in its collection and on the New Book List.

Consider these new acquisitions:

Calling the Shots: The President, Executive Orders, and Public Policy (Call No. KF5053. G58 2017) by Daniel P. Gitterman, Professor of Public Policy at University of North Carolina in Chapel Hill. This 288-page book explains how modern presidents have used the power as purchaser to require federal contractors to pay a minimum wage and to prohibit contracting with federal contractors that knowingly employ unauthorized alien workers. This book is very timely as that author believes that the current administration will likely use a mix of executive orders and memorandums. Unlike executive orders, memorandums aren’t thoroughly recorded by the government. He says that “Memorandums go below the radar much more and are harder for, I think, the news media and the public to track”

Dear Chairman: Boardroom Battles and the Rise of Shareholder Activism (Call No. HD2744. G73 2015) by Jeff Gramm, Adjunct Associate Professor of Finance and Economics at Columbia Business School. In 291 pages, the book gives a rich history of shareholder activism that has been described as “a grand story” and an “illuminating read” by the Wall Street Journal, “a revelation” by the Financial Times, and “an excellent read” by Andrew Ross Sorkin at the New York Times. Last month, the author presented a Book Talk sponsored by the Center for the Study of Business Law & Regulation at Brooklyn Law School. For details, see this link.

The Unexpected Scalia: A Conservative Justice’s Liberal Opinions (Call No. KF8745.S33 D67 2017) by David M. Dorsen, a Washington lawyer with Sedgwick, LLP. In 377 pages, the book by a close friend of Scalia describes the subject as a leader in opposing abortion, the right to die, affirmative action, and mandated equality for gays and lesbians, and was for virtually untrammeled gun rights, political expenditures, and the imposition of the death penalty. However, he usually followed where his doctrine would take him, leading him to write many liberal opinions.

Fiction is also on the New Book List. See, for example, The Advocate’s Daughter: A Thriller (Call No. PS3606.R4228 A67 2016) by Anthony J. Franze who tells a story of family, power, loss, and revenge set within the insular world of  Washington, D.C. The story focuses on Sean Serrat, a Supreme Court lawyer on the short list to be nominated to the U.S. Supreme Court. His daughter, Abby, a talented and dedicated law student, goes missing and her lifeless body is found in the library of the Supreme Court. Her boyfriend, Malik Montgomery, a law clerk at the high court, is immediately arrested. The media frenzy leads to allegations that Malik’s arrest was racially motivated, sparking a national controversy. While the Serrat family works through their grief, Sean begins to suspect the authorities arrested the wrong person. Delving into the mysteries of his daughter’s last days, Sean stumbles over secrets within his own family as well as the lies of some of the most powerful people in the country. People will stop at nothing to ensure that Sean never exposes the truth.

 

History and Future of NAFTA

The history of the North American Free Trade Agreement (NAFTA) began in 1980 when candidate Ronald Reagan proposed a North American common market in his presidential campaign. The first move in creating NAFTA came when President Reagan made good on his campaign pledge and declared a North American common market as a future goal. During the early 1980s, with Mexico remaining aloof, Canada and the US signed a series of agreements that culminated in the Canada-US Free Trade Agreement in 1988. At this crucial juncture, Mexico signaled its willingness to join the negotiations and NAFTA talks began. On August 12, 1992, before the summer GOP convention, President George H.W. Bush initialed the deal. After losing the general election to William J. Clinton, Bush formally signed the treaty on December 17, 1992, saying during his Remarks on Signing the North American Free Trade Agreement “I’ve been privileged as Vice President and President over the past 12 years to be here on quite a few occasions, and I am so thrilled that this, the final one, is to sign the NAFTA agreement.”

As negotiated, the agreement was signed by the US, Canada, and Mexico, aiming to eliminate trade barriers among the three nations. Essentially, NAFTA was an extension of the Free Trade Agreement between Canada and the United States. Several other considerations beyond free trade under the scope of the NAFTA include intellectual property, telecommunications, and environmental protection. The treaty was to take effect on January 1, 1994, but ratification faced obstacles in the US Congress, especially from members of the Democratic Party. At the time of its ratification in Congress, more Republicans than Democrats supported NAFTA. With strong opposition by labor unions, a key ally for President Clinton was then-House Minority Whip (and later House Speaker) Newt Gingrich (R-Ga). Since NAFTA went into effect, bilateral trade between the US and Mexico amounts to more than $500 billion per year. The US is Mexico’s largest trading partner in merchandise (about 80% of its goods exports go to the US) while Mexico is America’s third-largest trading partner (after Canada and China).

NAFTA at 20Readers interested in learning more about NAFTA can review the Brooklyn Law School Library volume NAFTA at 20: The North American Free Trade Agreement’s Achievements and Challenges edited by Michael J. Boskin (Call No. HF1746 .N3326 2014), a Professor of Economics and senior fellow at Stanford University’s Hoover Institution. As chairman of the president’s council of economic advisers from 1989 to 1993, he helped initiate NAFTA. He writes that NAFTA was bold and controversial from the start. When first conceived, it was far from obvious that it would be possible given the circumstances of the times. Drawing from a December 2013 Hoover Institution conference on “NAFTA at 20,” his book brings together distinguished academics who have studied the effects of NAFTA with high-level policy makers to present a comprehensive view of the North American Free Trade Agreement. It looks at the conception, creation, outcomes so far, and the future of NAFTA from the perspective of economists, historians, and the policy makers in the words of those who participated in the negotiations and research. In the context of the fundamental economic and political transformation of North America, they discuss the trade, real wage, and welfare gains that NAFTA has produced for the United States, Mexico, and Canada, along with a review of the major energy markets within and among the three countries. The book has lessons from NAFTA for the future, both for NAFTA itself (if there is one) and for other trade agreements. The author stresses the importance of political leadership and providing information on the benefits of trade liberalization to voters and ill-informed politicians who cater to the fears of free trade opponents.

NAFTAThe BLS Library  has in its collection a related title, an e-book NAFTA and Sustainable Development: History, Experience, and Prospects for Reform (Treaty Implementation for Sustainable Development), edited by Hoi L. Kong and L. Kinvin Wroth. On the twentieth anniversary of NAFTA’s ratification, the book outlines the scope of NAFTA and its impact on environmental issues and paths to reform. Analyzing the impact of the NAFTA on bio-engineered crops in Mexico, marine environmental effects, climate change, and indigenous rights, the book is an important contribution to the global conversation on international trade agreements and sustainable development.

New Book List: Working Class Whites

Brooklyn Law School Library’s April 2017 New Book List is now available at this link. There are 65 new entries, 45 print titles and 20 eBook titles. The subject areas cover a broad range of topics including both law, history and social aspects of American life, e.g., Women lawyers — United States – Biography; Law clerks — United States; Criminal procedure (International law); Extradition; Solitary confinement — United States; Trial practice — United States; Drone aircraft — Law and legislation — United States; Brooklyn (New York, N.Y.) – History; Law teachers — United States; Law reviews — Competitions — United States; Commercial crimes; Global Financial Crisis, 2008-2009; Police shootings — United States; Self-defense (Law) — Social aspects — United States. Among the titles related to law and legal education are the following:

White TrashThe BLS Library collection includes titles related to social aspects of American life. One such title from the New Book List that stands out is White Trash: The 400-Year Untold History of Class in America by Nancy Isenberg (Call No. HN90.S6 I84 2016). The author, an American historian and Professor of History at Louisiana State University, tells a rarely recounted story about a race, namely so-called “white trash”, a derogatory American English racial slur referring to poor white people, especially in the rural southern United States. The 460-page book has twelve chapters divided into three parts: Part I – To Begin the World Anew; Part II – Degeneration of the American Breed; and Part III – The White Trash Makeover.  The chapters in Part I include Taking out the Trash: Waste People in the New World; Benjamin Franklin’s American Breed: The Demographics of Mediocrity; Thomas Jefferson’s Rubbish: A Curious topography of Class; and Andrew Jackson’s Cracker Country: The Squatter as Common Man. Later chapters include Pedigree and Poor White Trash: Bad Blood, Half-Breeds and Clay-Eaters;  Cowards, Poltroons, and Mudsills: Civil War as Class Warfare; Thoroughbreds and Scalawags: Bloodlines and Bastard Stock in the Age of Eugenics; Forgotten Men and Poor Folk: Downward Mobility and the Great Depression; The Cult of the Country Boy: Elvis Presley, Andy Griffith, and LBJ’s Great Society; Redneck Roots: Deliverance, Billy Beer, and Tammy Faye; Outing Rednecks: Slumming, Slick Willie, and Sarah Palin; and lastly, America’s Strange Breed: The Long Legacy of White Trash.

HillbillyThe BLS Library has ordered for its collection a related title, Hillbilly Elegy: A Memoir of a Family and Culture in Crisis (Call No. HD8073.V37 A3 2016) by J. D. Vance, a graduate of Yale Law School who grew up in the Rust Belt and the Appalachian town of Jackson, Kentucky. Vance offers a look at the struggles of America’s white working class and tells his own story of upward mobility with a discussion about the loss of the American dream for a large segment of the country. The books by Isenberg and Vance are reviewed in Fanfares for the Common Man by Phil Christman, Volume 19, Issue 1 of The Hedgehog Review. 19.1 (Spring 2017 available via OneSearch to the BLS community.

Episode 100 – Conversation with BLS Prof David Reiss

Episode 100 – Conversation with BLS Professor David Reiss.mp3

This conversation with Brooklyn Law School Professor David Reiss focuses on his recent article Gorsuch, CFPB and Future of the Administrative State. Prof. Reiss talks about the impact that U.S. Supreme Court nominee Judge Neil Gorsuch would have on the future of administrative law and, in particular, on federal consumer protection enforcement if he is confirmed. Prof. Reiss reviews the case PHH v. Consumer Financial Protection Bureau which the United States Court of Appeals, District of Columbia Circuit decided last year. It is likely the case will be appealed to the Supreme Court. If so, Justice Gorsuch may vote to curtail the independence of the Consumer Financial Protection Bureau and limit its enforcement powers. More generally, Prof. Reiss believes that, given previous rulings by Judge Gorsuch in cases dealing with administrative law, a Justice Gorsuch will be a skeptic of agency action and will support greater judicial review of agency actions.

Deconstruction of the Administrative State?

The new administration in Washington vows to reduce federal regulations and Steve Bannon, the chief White House strategist, argues for a “deconstruction of the administrative state” and the possible dismantling of the New Deal. The argument for this retrenchment of regulatory law is that regulations are unnecessary and costly, detrimental to business and a hindrance to the growth of jobs in the economy. Recently C-SPAN aired the 1982 PBS documentary The Regulators: Our Invisible Government which focused on regulation of air pollution in the national parks. Although dated, the film has current relevance as a teaching tool for law students and others interested in regulatory law as it details the process of turning general language in a 1977 amendment to the Clean Air Act into specific regulations. The 50 minute video tells the behind-the-scenes negotiations and debates between Environmental Protection Agency (EPA) regulators and environmental and industry interests. See video (also available at this link) below.

The Brooklyn Law School Library has in its collection two books with very differing views of the administrative state. The latest, Law’s Abnegation: From Law’s Empire to the Administrative State by Adrian Vermeule (available in print at Call No. KF5425.V47 2016 and electronically via ProQuest Ebook Central), is a theoretically informed and lawyerly interpretation of the law of the modern administrative state. The author demonstrates how legal doctrine really works by using cases familiar to most administrative lawyers. Law’s Abnegation can be read with and compared to Is Administrative Law Unlawful? by Philip Hamburger (Call No. K3400.H253 2014). The two books represent extreme views on the status of administrative law in America. Hamburger answers the title question of his book with a strong affirmative. Vermeule, who reviewed Hamburger’s book in his terse one-word title, No, 93 Texas Law Review 1547 (2015), follows up and expands on his views in his book.

Mass Incarceration and Prison Reform

war on crimeIn the past few years, there has been increased discussion of the growth in America’s prison population to more than 2 million Americans incarcerated, many of them drug offenders, for periods that seem far too long. Since the publication in 2010 of Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, there has been more scholarship on the topic of mass incarceration. In a title added last year to the Brooklyn Law School Library collection, From the War on Poverty to the War On Crime: The Making of Mass Incarceration in America by Elizabeth Hinton (Call No. HV9950 .H56 2016), the topic get detailed attention.

The author, an Assistant Professor at Harvard University and urban historian, argues that mass incarceration is not just a conservative backlash to the civil rights movement but an initiative of both of the major political parties. In the book, Hinton traces mass incarceration, often based on assumptions about the cultural inferiority African-Americans, back to the 1960s, from the administrations of John F. Kennedy and Lyndon B. Johnson to that of Ronald Reagan in the 1980s. The Democrats passed the The Juvenile Delinquency and Youth Offenses Control Act of 1961 which portrayed black youth as being in need of repair rather than justice. At the same time when President Johnson’s War on Poverty sought to foster equality and economic opportunity, his administration advanced initiatives rooted in widely shared assumptions about African Americans’ role in urban disorder.  Johnson called for a War on Crime in 1965 when he created the Office of Law Enforcement Assistance, which significantly increased federal involvement in militarizing local police. From the late 1960s starting with Richard Nixon’s law and order campaign to the 1980s administration of Ronald Reagan, crime control and incarceration dominated national responses to poverty and inequality as initiatives that were the full realization of the punitive transformation of urban policy implemented by both parties.

Locked inA search of the BLS Library OneSearch platform will lead readers to a recent review of Hinton’s book in the February 2017 issue of the American Journal of Public Health (Vol. 107 Issue 2) under the title Reckoning with the Rise of the Carceral State by David H. Cloud. For more on the topic, the BLS Library has ordered for its collection a new title, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform by John F. Pfaff, Professor of Law at Fordham Law School. The book describes a fractured criminal justice system, where many counties do not pay for the people they send to state prisons, and white suburbs set law and order agendas for more-heavily minority cities.

Law and the English Language

Lawyer'sLast year, the Brooklyn Law Library added to its collection The Lawyer’s Guide to Writing Well (3d ed.) by Tom Goldstein and Jethro K. Lieberman (Call No. KF250. G65 2016). This critically acclaimed book “should be in the office of every lawyer” says William Safire of the New York Times. In its 286 pages, the authors demystify legal writing, outline the causes and consequences of poor writing, and prescribe easy-to-apply remedies to improve it. Reflecting changes in law practice over the past decade, this revised edition includes new sections around communicating digitally, getting to the point, and writing persuasively. It also provides an editing checklist, editing exercises with a suggested revision key, usage notes that address common errors, and reference works to further aid your writing. This guide is an invaluable tool for practicing lawyers and law students.

Chapters are: Why Lawyers Write Poorly — Does bad writing really matter? — Don’t make it like it was — The Practice of Writing — Ten steps to writing it down — Of dawdlers and scrawlers, pacers and plungers: getting started and overcoming blocks — The technology of getting it down: from quill pens to computers — Lawyers as publishers: words are your product — Getting to the Point — Writing persuasively for your audience: tell your audience the point — Writing the lead — Revising for Clarity and Luster — Form, structure, and organization — Wrong words, long sentences, and other mister meaners — Revising your prose — Making your writing memorable.

AnimalBooks and essays about the art of writing well go back a long time. In 1947, English novelist, essayist, journalist, and critic George Orwell (born Eric Arthur Blair 1903 – 1950) and author of Animal Farm: A Fairy Story and Nineteen Eighty-Four, his most famous works, wrote an essay titled Politics and the English Language. Although the essay addresses the decline of language in political and economic contexts, Orwell, in the closing paragraphs, offers rules that cover effective legal writing as well. They are:

  • Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.
  • Never use a long word where a short one will do.
  • If it is possible to cut a word out, always cut it out.
  • Never use the passive where you can use the active.
  • Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.
  • Break any of these rules sooner than say anything outright barbarous.

Emoluments Clause: Constitution’s Least Litigated

EmolumentsArticle I, Section 9, Clause 8 of the United States Constitution (known as the Emoluments Clause) reads:

“No Title of Nobility shall be granted by the United States: And no 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.”

University of St. Thomas School of Law Associate Professor of Law Robert J. Delahunty’s essay on the Heritage Guide to The Constitution is worth reading for an understanding of this obscure provision   Article VI of the Articles of Confederation was the source of the Constitution’s prohibition on federal titles of nobility and the so-called Emoluments Clause. The clause sought to shield the republican character of the United States against corrupting foreign influences.

The prohibition on federal titles of nobility—reinforced by the corresponding prohibition on state titles of nobility in Article I, Section 10, and more generally by the republican Guarantee Clause in Article IV, Section 4—was designed to underpin the republican character of the American government. In the ample sense James Madison gave the term in The Federalist No. 39, a republic was “a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during good behavior.”

Republicanism so understood was the ground of the constitutional edifice. The prohibition on titles of nobility buttressed the structure by precluding the possibility of an aristocracy, whether hereditary or personal, whose members would inevitably assert a right to occupy the leading positions in the state.

Further, the prohibition on titles complemented the prohibition in Article III, Section 3, on the “Corruption of Blood” worked by “Attainder[s] of Treason” (i.e., the prohibition on creating a disability in the posterity of an attained person upon claiming an inheritance as his heir, or as heir to his ancestor). Together these prohibitions ruled out the creation of certain caste-specific legal privileges or disabilities arising solely from the accident of birth.

In addition to upholding republicanism in a political sense, the prohibition on titles also pointed to a durable American social ideal. This is the ideal of equality; it is what David Ramsey, the eighteenth-century historian of the American Revolution, called the “life and soul” of republicanism. The particular conception of equality denied a place in American life for hereditary distinctions of caste—slavery being the most glaring exception. At the same time, however, it also allowed free play for the “diversity in the faculties of men,” the protection of which, as Madison insisted in The Federalist No. 10, was “the first object of government.” The republican system established by the Founders, in other words, envisaged a society in which distinctions flowed from the unequal uses that its members made of equal opportunities: a society led by a natural aristocracy based on talent, virtue, and accomplishment, not by an hereditary aristocracy based on birth. “Capacity, Spirit and Zeal in the Cause,” as John Adams said, would “supply the Place of Fortune, Family, and every other Consideration, which used to have Weight with Mankind.” Or as the Jeffersonian St. George Tucker put it in 1803: “A Franklin, or a Washington, need not the pageantry of honours, the glare of titles, nor the pre-eminence of station to distinguish them….Equality of rights…precludes not that distinction which superiority of virtue introduces among the citizens of a republic.”

Similarly, the Framers intended the Emoluments Clause to protect the republican character of American political institutions. “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.” The Federalist No. 22 (Alexander Hamilton). The delegates at the Constitutional Convention specifically designed the clause as an antidote to potentially corrupting foreign practices of a kind that the Framers had observed during the period of the Confederation. Louis XVI had the custom of presenting expensive gifts to departing ministers who had signed treaties with France, including American diplomats. In 1780, the King gave Arthur Lee a portrait of the King set in diamonds above a gold snuff box; and in 1785, he gave Benjamin Franklin a similar miniature portrait, also set in diamonds. Likewise, the King of Spain presented John Jay (during negotiations with Spain) with the gift of a horse. All these gifts were reported to Congress, which in each case accorded permission to the recipients to accept them. Wary, however, of the possibility that such gestures might unduly influence American officials in their dealings with foreign states, the Framers institutionalized the practice of requiring the consent of Congress before one could accept “any present, Emolument, Office, or Title, of any kind whatever, from…[a] foreign State.”

Like several other provisions of the Constitution, the Emoluments Clause also embodies the memory of the epochal constitutional struggles in seventeenth-century Britain between the forces of Parliament and the Stuart dynasty. St. George Tucker’s explanation of the clause noted that “in the reign of Charles the [S]econd of England, that prince, and almost all his officers of state were either actual pensioners of the court of France, or supposed to be under its influence, directly, or indirectly, from that cause. The reign of that monarch has been, accordingly, proverbially disgraceful to his memory.” As these remarks imply, the clause was directed not merely at American diplomats serving abroad, but more generally at officials throughout the federal government.

The Emoluments Clause has apparently never been litigated, but it has been interpreted and enforced through a long series of opinions of the Attorneys General and by less-frequent opinions of the Comptrollers General. Congress has also exercised its power of “Consent” under the clause by enacting the Foreign Gifts and Decorations Act, which authorizes federal employees to accept foreign governmental benefits of various kinds in specific circumstances.

Another fascinating read on the Emoluments Clause is the December 2016 Brookings Institute study titled The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump co-authored by Norman L. Eisen, Richard Painter, and Laurence H. Tribe.