Category Archives: Uncategorized

Book Festival in My Backyard

After a hellish mid-week commute that trapped me underground for nearly an hour, what could possibly lure me back to Brooklyn on a Sunday?  BROOKLYN BOOK FESTIVAL!

My literary life partner, Ken, accompanied me.  He is hard at work on his new novel, tentatively titled Love Like Rain, which foretells of an apocalyptic world where a handful of survivors fight for the last source of water.  (Intrigued?  Draft first chapter available here.)

Ken and I joined a large crowd in Brooklyn’s Borough Hall Plaza to hear Dr. Brittney Cooper, Daisy Hernández and Mychal Denzal Smith discuss “Intersectionality and Activism.”  Mr. Smith asked the audience: “After the Women’s March [on Washington], what will be the political program that we follow?”  Ms. Cooper explained how she is actively involved in the Black Lives Matter movement—she used humor and passion as tools to encourage the audience to act.  (Ms. Cooper’s newest book, Eloquent Rage: A Black Feminist Discovers Her Superpower, will be available in February 2018.)

As I scanned the Brooklyn Book Festival program, I was proud that my employer, Brooklyn Law School, was a host site for free panels on topics ranging from big data to immigration to young adult fiction.  These Sunday afternoon programs were packed!  BLS President and Dean Nicholas Allard moderated the panel discussion: “Culture, Politics and the Supreme Court.”  You can view the recording of this discussion (and many others) through C-SPAN’s 2017 Brooklyn Book Festival Book TV.

The Festival’s Literary Marketplace showcased friendly authors and their recent works.  At Brooklyn Law School’s booth, I greeted authors/professors William Araiza (standing on the far right in the photo below) and Heidi K. Brown (standing next to Professor Araiza in the photo below).

BLS at Brooklyn Book Festival

Professor Araiza’s most recent book is: Animus: A Short Introduction to Bias in the Law (2017).  He notes in the introduction: “Animus matters more than ever today. At a very practical level, animus has become one of the Supreme Court’s favorite tools when considering claims that a plaintiff’s equality rights have been violated.”  I encourage you to read this book to discover what the constitutional law concept of “animus” means today.  Professor Brown’s thoughtful new book is: The Introverted Lawyer: A Seven-Step Journey Toward Authentically Empowered Advocacy (2017).  Earlier in her career, Professor Brown had to address her own fear of public speaking while litigating.  Her work to conquer this fear inspired her book.  Come hear her book talk about The Introverted Lawyer on the evening of October 3, 2017.  Other notable featured titles by BLS faculty were: Dana Brakman Reiser & Steven A. Dean, Social Enterprise Law (2017); Christopher Beauchamp, Invented by Law: Alexander Graham Bell and the Patent That Changed America (2015); K. Sabeel Rahman, Democracy Against Domination (2016); and Nelson Tebbe, Religious Freedom in an Egalitarian Age (2017).

At “Refugee Reportage,” journalists Deborah Campbell and Lauren Wolfe explained the great value of a skilled “fixer” (= interpreter + guide + excellent source of contacts) to a foreign correspondent.  They noted that a good fixer, working with foreign journalists, places her or his life at risk.  When Ms. Campbell read from A Disappearance in Damascus, I, like, the audience, was spellbound.  What had happened to brave Ahlam, the Iraqi refugee in Damascus who provided so much help to Ms. Campbell in 2007?  I am eager to read this beautifully written book to find out.

Finally, I met volunteers from NYC Books Through Bars, which sends free, donated paperback books to people who are incarcerated in the U.S.  This group’s website describes how (and when) to donate books, as well as how to donate funds or packing supplies.

Conclusion: Well worth the trip, and I’ll be back next year!

Supreme Court 2017 October Term

Oyez! Oyez! Oyez!  The list of cases the U.S. Supreme Court will hear in its 2017 October Term 2017 is now posted on SCOTUSblog.  SCOTUSblog is a great resource if you are researching any aspect of the Supreme Court or the opinions it issues.  The blog analyzes each merits case pending before the Court and posts breaking news of Court decisions. In fact, SCOTUSblog often posts Court decisions before the high court puts them on its own website. During session, links to audio clips of oral arguments are posted on SCOTUSblog as they become available. When you visit the blog, make sure to check out the other resources freely available there, such as “plain english” analysis of cases, videos, live blogging of oral arguments, and more.

Sexual Orientation and Title VII

There has been considerable commentary on the Justice Department’s filing of an amicus brief saying that Title VII of the Civil Rights Act of 1964 does not cover employment “discrimination based on sexual orientation.” The DOJ filed the brief in the case of Donald Zarda, who filed suit against his former employer Altitude Express in a case that questions whether sexual orientation is included in Title VII’s protections. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. Zarda was a skydiving instructor who said he was fired after disclosing his sexual orientation to a customer. He died in a skydiving accident before the case went to trial, and executors of his estate have continued the lawsuit on his behalf. The DOJ’s brief states “the sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts”. It concludes “Title VII does not prohibit discrimination because of sexual orientation.”

The question is, of course, not that simple and has been the subject of commentary for some time. See, for example, Sex and Sexual Orientation: Title VII after Macy v. Holder by Cody Perkins, 65 Administrative Law Review 427 (Spring 2013). This article examines the EEOC’s treatment of sexual orientation as somewhat convoluted. While there is binding precedent from the Commission that “Title VII’s prohibition of discrimination based on sex does not include sexual preference or sexual orientation”, it cites two decisions issued through the Office of Federal Operations indicating that discrimination based on sexual orientation is discrimination based on sex for Title VII purposes under a Hopkins sex stereotyping theory. See Veretto v. Donahoe, where the Office of Federal Operations found that discrimination against a man for marrying another man was a valid sex stereotyping claim, because it was discrimination based on the stereotype that “marrying a woman is an essential part of being a man,” and Castello v. Donahoe, where the Office of Federal Operations found that discrimination against a woman for being attracted to other women was a valid sex stereotyping claim under Title VII, because it was discrimination based on the stereotype that women should only be attracted to and have relationships with men. These decisions, while not binding on federal agencies, indicate that the EEOC intends to allow claims based on sexual orientation under a sex stereotyping theory under Title VII. While there may be no binding precedent from the EEOC stating that sexual orientation is covered under Tide VII, there is binding precedent regarding transgender people. In Macy v. Holder, the plaintiff, a police detective from Phoenix who was still presenting as a man had applied for and been given assurances that she would be hired for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). After going through steps in the hiring process and being told repeatedly that she would be hired, Ms. Macy disclosed to ATF that she was in the process of transitioning from male to female and was informed that the position she had applied for was no longer available due to budget constraints. Upon further investigation, Ms. Macy learned that the position had in fact been offered to someone else and filed a formal Equal Employment Opportunity complaint with ATF, alleging discrimination in hiring based on sex. When the agency failed to identify her claim as sex discrimination, instead creating a separate claim of “discrimination based on gender identity,” Ms. Macy appealed her case to the EEOC. In a reversal of its previous position, the full Commission held that “discrimination based on gender identity, change of sex, and/or transgender status” is discrimination “because of sex” under Title VII. In making this determination, the EEOC utilized two important theories: a traditional “sex stereotyping” theory and a new “per se because of sex” theory, both based on the Supreme Court’s decision in Hopkins.

hivelyMore recently, In April 2017, the en banc Seventh Circuit Court of Appeals overruled its own precedent and became the first Circuit to hold that discrimination on the basis of sexual orientation can constitute unlawful sex discrimination under Title VII. See Hively v. Ivy Tech. Cmty. College of Indiana, II, 853 F.3d 339, 351 (7th Cir. 2017) (overruling Hively v. Ivy Tech. Cmty. College of Indiana, I 830 F.3d 698, 709 (7th Cir. July 28, 2016).). All other Circuits that have addressed the issue have held sexual orientation is not protected under Title VII. The EEOC previously adopted the Controversiesposition in 2015 now taken by the Seventh Circuit. The Supreme Court and the Circuit Courts have held that Title VII protects employees who are discriminated against because they do not conform to the stereotype for their gender and this often may overlap with sexual orientation. For more on the subject, see Brooklyn Law School Library’s copy of Controversies in Equal Protection Cases in America: Race, Gender and Sexual Orientation (Controversies in American Constitutional Law) by Anne Richardson Oakes (Call No. KF4755 .C664 2015).

Researching Legislative History?

Whether you are tracing a statute’s history for your summer internship or for a paper you are writing, you will want to use a new tool the library recently acquired, Proquest’s Legislative Insight.  Often researching legislative histories can be cumbersome and time consuming.   Legislative Insight promises to streamline the process by digitizing and by publishing online the majority of full text publications associated with a legislative history.  These documents include all versions of enacted and related bills, Congressional Record excerpts, and committee hearings, reports, and documents.  Legislative Insight also includes other related material such as committee prints, CRS reports and Presidential signing statements. Furthermore, Legislative Insight offers a research citation page that not only links to the full text of the associated primary source publications, but allows the user to do a Search Within from that very page that searches the full text of all the associated publications with one-click.

To access Legislative Insight from off-campus, you first need to implement the proxy instructions.

Seduction of a “Con” Virgin: BookCon 2017

Thousands of excited (often young) readers and accessible authors…literary cosplay…fans gathering to share their love of a series or genre—that’s BookCon, held at New York’s Javits Center this past weekend.

BookCon is many things.  For one long line of enthusiastic fans, it is a chance to meet Nicola Yoon, author of the YA fav Everything, Everything (precis: “girl in the plastic bubble” meets her Mr. Darcy).  For my husband Ken Davis, new author of Lifesavers (precis: lawyer caught in tragedy finds redemption through love), it is an opportunity to attend an IngramSpark showcase to help indie authors learn to effectively market their books.  For me, it is a chance to discover some compelling titles about social issues in America.

At my first stop on the show floor, Workman Publishing was featuring Why We March, an evocative pictorial history of the January 21st Women’s March in Washington.

One of my favorite images in the book above is the girl from Austin, Texas proudly displaying her hand-colored poster proclaiming: Girls Just Wanna Have Fun-Damental RIGHTS.  I bought this book when the exhibitors explained that the royalties from my purchase would be donated to Planned Parenthood.

Next I had the great pleasure of meeting Rosemary Vestal of the University of Nebraska Press.  She brought to my attention the gem I’m currently reading: It’s My Country Too: Women’s Military Stories from the American Revolution to Afghanistan.

This anthology highlights the courage and sacrifices of women from Deborah Sampson Gannett (who donned a disguise and joined the Continental Army in 1782) to U.S. Army veteran Brooke King (who served as a mechanic, machine gunner and recovery specialist in Iraq beginning in 2006).  Ms. King’s essay on her experiences in Iraq is riveting and haunting.

At the Hachette Books display, Joanna Pinsker piqued my interest in two forthcoming titles: Kennedy and King: The President, the Pastor, and the Battle over Civil Rights (available on June 6, 2017) and Unseen: Unpublished Black History from the New York Times Photo Archives (forthcoming in October 2017).  I learned that Unseen will include a photo and story of the courageous and talented Arthur Ashe triumphing in a major tennis championship.

Shout out to the self-described “social justice/rights” author who exhibited on a corner of the “AM” section near the Family Headquarters–I wanted to visit your booth on Sunday afternoon but I had a program conflict.  Please send me a link to your author’s page.  I read indie books too!

I will end my reflections on my first Con by emphasizing the joy of the fans.  I saw it in the face of the teen plucked from the waiting line to receive the last available seat at Margaret Atwood’s panel.  (And if even one audience member who is moved by Hulu’s adaptation then chooses to read The Handmaid’s Tale, great!)  I saw it in the thrilled reaction of a child who lost BOOM! Studios’ drawing for a two-pound gummy bear but gained a copy of the graphic novel: The Not-So-Secret Society.  If you missed BookExpo/BookCon 2017, I hope to see you in my backyard at Brooklyn Book Festival (September 11-17, 2017).

Gerrymandering Resources at Brooklyn Law School Library

On May 22nd, the United States Supreme Court, in Cooper v. Harris, No. 15-1262, struck down two North Carolina congressional districts holding that race played too large a factor in drawing the districts’ borders.  Writing for the 5-3 majority, Justice Kagan said that a plaintiff challenging a voting district must prove that “race (not politics) was the ‘predominant consideration in deciding to place a significant number of voters within or without a particular district.’”  If you are interested in learning more about the constitutionality and history of gerrymandering, the library has several resources that can help. Listed below are a few of the more current sources on the topic.

Nicholas R. Seabrook, Drawing the Lines: Constraints on Partisan Gerrymandering in U.S. Politics (2017)

Radical redistricting plans, such as that pushed through by Texas governor Rick Perry in 2003, are frequently used for partisan purposes. Perry’s plan sent twenty-one Republicans (and only eleven Democrats) to Congress in the 2004 elections. Such heavy-handed tactics strike many as contrary to basic democratic principles. In Drawing the Lines, Nicholas R. Seabrook uses a combination of political science methods and legal studies insights to investigate the effects of redistricting on U.S. House elections. He concludes that partisan gerrymandering poses far less of a threat to democratic accountability than conventional wisdom would suggest.—From the publisher

Anthony McGann, ed., Gerrymandering in America: The House of Representatives, the Supreme Court, and the Future of Popular Sovereignty (2016)

This book considers the causes and consequences of partisan gerrymandering in the U.S. House. The Supreme Court’s decision in Vieth v. Jubelirer (2004) made challenging a district plan on ground of partisan gerrymandering practically impossible. Through a rigorous scientific analysis of US House district maps, the authors argue that partisan bias increased dramatically in the 2010 redistricting round after the Vieth decision, both at the national and state level. From a constitutional perspective, unrestrained partisan gerrymandering poses a critical threat to a central pillar of American democracy — popular sovereignty. State legislatures now effectively determine the political composition of the US House. The book answers the Court’s challenge to find a new standard for gerrymandering that is both constitutionally grounded and legally manageable. It argues that the scientifically rigorous partisan symmetry measure is an appropriate legal standard for partisan gerrymandering, as it is a necessary condition of individual equality and can be practically applied.—From the publisher

Tinsley E. Yarbrough, Race and Redistricting: the Shaw-Cromartie Cases (2002)

Race and Redistricting spotlights efforts to “racially engineer” voting districts in an effort to achieve fair representation. By examining one state’s efforts to confront such dilemmas, it helps readers better understand future disputes over race and politics, as well as the ongoing debates over our “color-blind” constitution.—From the publisher

Marsha Jean Tyson Darling, ed., Race, Voting, and Redistricting and the Constitution: Sources and Explorations on the Fifteenth Amendment (2001)

This three-volume work includes chapters containing the text of primary sources, such as the Fourteenth and Fifteenth Amendments of the Constitution, the Civil Rights Acts, the Voting Rights Act of 1965, and legislative documents pertaining to the passage of those laws.  Chapters also include scholarly commentary on Gerrymandering Hypocrisy: Supreme Court’s Double Standard, Making Sense Out of the Way We Should Vote, and the Case for Proportional Representation.

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.

 

The Patient Protection and the Affordable Care Act: The Debate Rages On

With the debate over the repeal and replacement of the Affordable Care Act raging, you might be interested in researching the act.  The library has 36 titles that are tagged with the subject, United States and the Patient Protection and Affordable Care Act.  Listed below are a few of those titles.

Purva H. Rawal, The Affordable Care Act: Examining the Facts (2016).

This is the first reference book to provide a detailed assessment of the Affordable Care Act, explaining the realities and myths surrounding one of the most divisive political struggles in recent U.S. history.  This is an e-book.  If you are off campus, you will need to implement the proxy instructions in a web browser.

Steven Brill, America’s bitter pill: Money, Politics, Backroom Deals, and the Fight to Fix our Broken Healthcare System (2015).

This book details how the Affordable Care Act, or Obamacare, was written, how it is being implemented, and, most important, how it is changing—and failing to change—the rampant abuses in the healthcare industry. It’s a fly-on-the-wall account of the titanic fight to pass a 961-page law aimed at fixing America’s largest, most dysfunctional industry.

Josh Blackman, Unraveled: Obamacare, Religious Liberty, and Executive Power (2016).

Six years after its enactment, this book provides the definitive account of the battle to stop Obamacare from being ‘woven into the fabric of America’. Unraveled is essential reading to understand the future of the Affordable Care Act in America’s gridlocked government in 2016, and beyond. This is an e-book.  If you are off campus, you will need to implement the proxy instructions in a web browser.

Josh Blackman, Unprecedented: The Constitutional Challenge to Obamacare (2013).

This inside story of the legal challenge to Obamacare from a conservative constitutional lawyer involved in the movement is a mixture of legal, political, and media intrigue capped by a truly consequential Supreme Court decision.

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.