New on Volokh Conspiracy Part 2: The practices of the early presidents, the first Congress and Alexander Hamilton

September 26th, 2017

The Volokh Conspiracy has published our second post concerning the Foreign Emoluments Clause and the the practices of the early presidents, the first Congress and Alexander Hamilton.

Here is an excerpt from our discussion of George Washington’s receipt of foreign gifts:

In 1791, President George Washington received, accepted, and kept a diplomatic gift — a framed full-length portrait of King Louis XVI from the French ambassador to the United States. There is no evidence that Washington ever sought or received congressional consent to keep this valuable gift. In addition to the portrait, Washington also received the main key to the Bastille accompanied with a picture of that fortress, from the Marquis de Lafayette, who at the time was a French government official. Lest anyone mistakenly believe that the key was merely a private gift from Lafayette to his friend Washington, this gift was discussed in a diplomatic communication from the French government’s representative in the United States to his superiors in the French ministry of foreign affairs.

Both of these items were prominently displayed in the federal capital. The portrait and valuable ornate frame, which included the Washington family crest and the monogram of the French king to “embod[y] … amicable Franco-American relations,” hung in Washington’s principal room. To this day, the key is on public display at Mount Vernon. The foreign provenance of these gifts from foreign governments would have been immediately recognizable to anyone who saw them. Indeed, the provenance of the key was widely reported in contemporaneousnewspapers. If the Foreign Emoluments Clause applies to presidents, then the president is precluded from accepting not just “emoluments,” but also “any present … of any kind whatever” from foreign states absent congressional consent. Yet, there is no record of Washington seeking or receiving congressional consent. Nor is there any evidence of any dissent — dissent in Congress among anti-administration members, dissent in newspapers or any dissent in any private correspondence. Washington’s accepting these items and his doing so without any recorded contemporaneous objections or any objections among subsequent scholars are strong evidence that no one thought he had done anything wrong (i.e., violated the Constitution’s Foreign Emoluments Clause) — until plaintiffs in the Emoluments Clauses cases determined that Presidents Trump and Washington (by implication) were not merely corrupt, but obviously corrupt.

Washington’s conduct, particularly his public acts, is entitled to special solicitude when construing the Constitution. Parties bear a heavy burden in asserting that Washington did not understand the Constitution he helped define. As Professor Akhil Reed Amar observed, “Washington defined the archetypical presidential role,” and as “America’s first ‘first man,’ [he] set precedents from his earliest moments on the job.” Given that plaintiffs and their amici are effectively alleging that Washington publicly violated the Constitution absent any noticeable opposition, the burden on them is even heavier.