Guest Essayist: Steven H. Aden, Senior Counsel and Vice President of the Center for Life at Alliance Defending Freedom

“It is emphatically the province and duty of the judicial department to say what the law is.” With those understated words, Supreme Court Chief Justice John Marshall ushered in the modern era of judicial review – the notion that it is up to judges, not legislators or presidents, to finally interpret and give meaning to the nation’s Constitution and laws.

During the founding era, Alexander Hamilton had written Federalist 78, to assure those wary of a strong federal judiciary that “[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution,” because it holds neither the power of the sword, as the Executive (Presidential) Branch does, nor the power of the purse strings, as the Legislative Branch (Congress) does. Read more

Guest Essayist: Steven H. Aden, Senior Counsel, Alliance Defense Fund

Amendment IX

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

Despite 220 years of constitutional interpretation, there really isn’t much one can say about the Ninth Amendment.  And that’s just what James Madison and the Framers intended.

The Ninth Amendment is that rare creature in American politics, a success story conceived in humility.  The first eight amendments of the Bill of Rights established freedom of worship, the freedoms of assembly, speech, press and petition, the rights to bear arms, to be free from government intrusions into citizens’ homes, to due process and to a jury of one’s peers, and many others.  Having penned what may have been the finest articulation of the rights of man in human history, Madison and his colleagues could have been forgiven for giving way to hubris and capping it with a rhetorical flourish.  Instead, they added a caution, by way of an afterthought.  The Ninth Amendment’s quiet caveat has done much more to protect fundamental rights from government encroachment than its humble phrasing would suggest.

The Bill of Rights exists because a compromise was required to satisfy the Anti-Federalists and States that were cautious about ratifying into existence a federal government of broad powers.  The Ninth Amendment exists because another compromise was necessary to satisfy those in the Federalist camp who believed that an enumeration of rights would tend to negate recognition of rights left unmentioned.  Madison, Alexander Hamilton and other Federalists contended that a Bill of Rights was unnecessary because the federal government’s powers were delineated by and limited to those set forth in Article I, Section 8 [link to John Baker’s blog on this provision  – ] Hamilton’s Federalist 84 queried, “Why declare that things shall not be done which there is no power to do?”  But the Anti-Federalists, led by Thomas Jefferson, prevailed, and history has affirmed their wisdom as through expansive interpretations of the Necessary and Proper Clause and the Commerce Clause the mantle of federal power has come to envelope virtually every aspect of life from the light bulbs in our ceilings to the “individual mandate” to purchase health insurance.  The enumeration of rights stands as a bulwark against that tide of federal authority in the sphere of private life, speech and conduct.  On the other hand, the Ninth Amendment lifts its staying hand against the argument that these rights, and only these, stand between the citizen and his seemingly omnipotent (and, with digital technology, increasingly omnipresent) government.

That the rights enumerated in the first eight amendments are not all the rights we possess may strike one at first as a challenging notion.  For rights that went unenumerated at the time, but became “self-evident” (in the words of the Declaration) much later, consider the right to be free, expressed in the Thirteenth Amendment prohibiting slavery (1865); the right to vote (Amendment XIV in 1870); and the right to vote for women, which came a half-century later (Amendment XIX in 1920).  Except for the salutary effect of the Ninth Amendment, it might have been presumed that no other fundamental human rights existed outside of those enumerated in 1789 – that the “canon of human rights” was closed, not subject to further elaboration through constitutional amendment.  Or perhaps what is worse, it might have been supposed that all “rights” secured by the people through amendment of the Constitution subsequent to the Founding were not “fundamental” human rights, but only positive political rights secured through an effective application of the Social Contract.  For unenumerated fundamental rights that have yet to be affirmed in the written constitution, consider the right of conscience; the right of parents to raise and educate their children outside of the government school system (unrecognized in parts of Europe and elsewhere), or the right to be free from genetic manipulation.

Mark Twain quipped, “Some compromise is essential between parties which are not omniscient.” Our generations, and generations to come, will have to struggle with the meaning of rights enumerated and unenumerated, and with the wisdom of further constitutional amendments.  Thankfully, because the two great forces in the making of the Constitution were willing to admit their fallibility and broker resolutions, we have the wisdom of the Bill of Rights, and the wisdom of the “Bill of Other Rights” – the Ninth Amendment.

Steven H. Aden is the Senior Counsel for the Alliance Defense Fund, .

Guest Essayist: Steven H. Aden, Senior Counsel, Alliance Defense Fund

Article I, Section 6, Clause 2

2: No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Philander Knox, Dick Nixon and the Saxbe Fix.  For some quizzical reason, “X” marks the spot in the constitutional text where a tempest of teapot proportions persistently brews when Section 6 nixes Executive picks.

The pedestrian second clause of Section 6 provides two obscure but important checks on the power of both the Executive and the Legislative Branch, colloquially known as the  “Emoluments Clause” and the “Incompatibility Clause,” respectively.  The second clause is as crystalline in meaning as a constitutional text can be, and has engendered virtually no historical dispute, except occasional quibbles over whether a trusteeship or a military commission constituted an “Office” for purposes of the clause.  President George Washington and other Founders regarded the Incompatability Clause as an unbreachable bar to cabinet service.  Washington withdrew his nomination of William Patterson to the Supreme Court because Patterson had been a senator when the office of Associate Justice was created and the Senate term Patterson had been elected for had not expired.  (Washington got his man nonetheless by subsequently re-nominating Patterson to the Court after his term expired.)  Since then, the Incompatibility Clause has been largely respected, with an occasional deviation.

The Emoluments Clause, on the other hand, has been much abused and misused. The Clause, which applies when Congress has voted to raise the salary or benefits (“emoluments”) attending the cabinet position during the nominated member’s tenure in Congress, was regarded by James Madison and others as an important check on potential collusion over cabinet appointments between the two “most dangerous” branches.  The clause would prevent the President from creating new cabinet positions for sitting members of Congress, thereby inhibiting vote-buying, and prevent Congress from raising the salary of a newly appointed cabinet minister as he or she is on the way out the door, inhibiting graft.  The Emoluments Clause is a “pox on both their houses,” in contrast to most of the other constitutional checks and balances that operate on a single branch of the federal government.

Philander C. Knox enters the story about a century ago, when President William Howard Taft in 1909 nominated Senator Knox to the post of Secretary of State.  But Knox had been elected to a Senate term that would not expire until 1911, and during his term Congress had voted to increase the salary of cabinet officers to $12,000 annually.  After much deliberation, Congress voted to revert the salary of the Secretary of State to $8,000, and Knox took office.

What could have been known as the “Knox Fix” (if that era had been as inclined to Seussian alliteratives as ours is) was employed by the administration of President Richard Nixon in 1973 in support of the nomination of Senator William Saxbe as Attorney General.  Nixon’s Acting Solicitor General, Robert Bork, defended the proposed “Saxbe fix” before Congress by arguing that the spirit of the Emoluments Clause would be met, if not the letter:

The purpose of the constitutional provision is clearly met if the salary of an office is lowered after having been raised during the Senator’s or Representative’s term of office…. So, with the bill lowering the salary of the office of Attorney General [from $60,000] to that level, $35,000, which it stood when Senator Saxbe became a Senator, you would have a situation where the rationale of the constitutional provision was met.[1]

This rather cynical interpretation of the Emoluments Clause has become au courant among Beltway sophisticates, and it is routinely invoked when the clause pops up like an uninvited uncle at Thanksgiving.  President William Clinton, for example, invoked The Fix to appoint Senator Lloyd Bentsen as Treasury Secretary.    Constitutional law professor Michael Stokes Paulsen explains how the “purpose” of the clause has vaulted over the actual rule it imposes:

By repealing the pay increase, the statute ensures that Lloyd Bentsen is not the personal financial beneficiary of any increase in emoluments.  But the statute cannot repeal history; it cannot undo the fact that the emoluments of the office had been “encreased” during the period for which Bentsen had been elected to the Senate.  And that is the constitutional rule provided by the Emoluments Clause.  Congress can no more legislate away a violation of that rule than it can by statute raise the chronological age of a thirty-two-year-old in order to make him eligible to serve as President.  Bentsen’s appointment is unconstitutional regardless of the subsequent legislative “fix.”[2]

Thus, as with many of those pesky “minor” constitutional provisions, the Emoluments Clause has been “more honour’d in the breach than the observance.”[3]     Musing about the apparent flexibility of this provision and similar castaways of “our Living Constitution,” Professor Michael Stokes Paulsen muses, “What gives?  The answer is that the Constitution gives, at least most of the time, when the provision involved is one that people today regard as a nuisance and where the likelihood appears small that a lawsuit will be brought against the violators.”[4]   Still, one has to say that the clause has had a salutary effect on the separation of presidential and legislative powers by hitting those who breach it where it hurts career politicians the most – right in their wallets, in the form of a pay cut.  Its letter may be dead, but its spirit is still kicking.

Steven H. Aden is the Senior Counsel for the Alliance Defense Fund, .

[1]              Letter from President Richard M. Nixon to Senator Gale McGee (Nov. 8, 1973), in To Insure that the Compensation and Other Emoluments Attached to the Office of Att’y Gen. Are Those Which Were in Effect on January 1st, 1969, Hearings on S. 26733 Before the Senate Comm. on Post Office and Civil Service, 93rd Cong., 1st Sess. 6 (1973) id. at 9 (testimony of Acting Attorney General Robert H. Bork).

[2]              Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907, at 909 (April 1994).  Professor Paulsen observes that the “other” Emoluments Clause, in Article I, Section 9, provides that “no Person holding any Office of Profit or Trust under [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,” thus demonstrating that “where the framers intended that a disability be removable by subsequent legislation, they so specified….”  Id., at 909 n.6.

[3]           William Shakespeare, Hamlet Act I Scene 4.

[4]             Paulsen, supra, n.2, at 907-08.  In fact lawsuits have been brought to enforce the Emoluments Clause, notably challenging President Jimmy Carter’s nomination of Abner Mikva to the D.C. Circuit Court of Appeals and President Obama’s nomination of Senator Hillary Clinton as Secretary of State, but the courts have dismissed those bringing the challenges as lacking standing – the legal authority to bring a court suit.

Guest Essayist: Steven H. Aden, Senior Legal Counsel with the Alliance Defense Fund

Federalist 77 “complete[s] a survey of the structure and powers of the executive department,” which, Hamilton urged, “combines, as far as republican principles will admit, all the requisites to energy” the Federal Executive would require to fulfill the duties of his office.  Anticipating the skepticism of his audience, the pre-eminent Federalist added one “remaining inquiry”: “Does it also combine the prerequisites to safety, in a republican sense – a due dependence on the people, a due responsibility?”  Not to worry, Hamilton soothed:  “In the only instances in which the abuse of the executive authority was materially to be feared [i.e., appointments], the Chief Magistrate of the United States [i.e., the President] would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people?”

Hamilton’s rhetorical caution with his Empire State audience may have stemmed from the depth of contention the issue of appointments had engendered in the Constitutional Convention.  The final compromise settled on language that reflected the desire to maintain a strong separation between the powers of the Executive and Legislative branches.

The late Justice Byron White, writing in Buckley v. Valeo (1976), in which the Supreme Court held that Congress had violated the Appointments Clause by constituting the Federal Election Commission with a majority of commissioners appointed by Congress instead of the President, explained the importance of the clause to the Federal system and ultimately the approval of the Federal Constitution:

The decision to give the President the exclusive power to initiate appointments was thoughtful and deliberate. The Framers were attempting to structure three departments of government so that each would have affirmative powers strong enough to resist the encroachment of the others. A fundamental tenet was that the same persons should not both legislate and administer the laws.

The Convention proposed, in alternative versions, that both Houses of Congress should appoint judicial officers, then that the Senate should do so.  Judicial and Executive officers were finally lumped together under the Appointments Clause, with the presumption being that the Judiciary being (in Hamilton’s phrase) “the least dangerous branch (Federalist 78),” Congress’ oversight of the President’s power of appointing federal judges would suffice for checks and balances over that branch.

Time and experience have revealed both the wisdom of the balance the Framers struck by the Appointments Clause and their myopic failure to foresee the real dangers posed by a life-tenured federal judiciary.  As to the latter, check Judge Vaughn Walker’s opinion in the Proposition 8 case last week, cavalierly tossing aside millennia of moral teaching on marriage as “irrational” and “discriminatory.”  As to the former, Executive nominations have rarely been voted down, perhaps demonstrating the “steady administration” inherent in a system in which “the circumstances attending an appointment…would naturally become matters of notoriety,” as Hamilton put it in Federalist 77.  One truly “notorious” exception was that of Senator John Tower, a powerhouse of American politics who was denied an appointment as Secretary of Defense 1989 due to a confluence of political and personal factors that seemed to bear out the wisdom of conferring the power of “salutary restraint” on Congress over presidential nominations.  The Left thought he had too many ties to defense contractors, and the Right condemned his extramarital infidelities, heavy drinking, and pro-abortion views.  Presuming a relative equipoise of power in the Senate (absent today), when both sides of the aisle have reasons to deny an appointment, it suggests that – as “Publius” predicted – the Executive is obliged to nominate moderate candidates to guide federal policy and programs, keeping the ship of state (in theory) more or less on course.

As to the hysterical political theater the Supreme Court confirmation process has become, that of course began with the nomination of eminent jurist Robert Bork to the  Supreme Court in 1987, whom Senate partisans voted down in part because of his perceived role in arrogating too much authority to the Executive Branch.  That story begins much earlier, but I will tell it as a kind of morality play whose lesson is that in the pas-de-trois dance for power between the three “co-equal” branches, “what goes around comes around,” and the consequences for overreaching may be severe.

Among President Richard Nixon’s manifold abuses of power, none inflamed his political enemies more than the “Saturday Night Massacre” of October 1973.  Nixon had appointed a Special Prosecutor for the Watergate Scandal, Archibald Cox, as a result of a promise his Attorney General, Elliot Richardson, had made to the Senate Judiciary Committee.  When Cox subpoenaed Nixon’s Oval Office tapes, Nixon ordered Richardson to fire him.  After all, Nixon reasoned, Cox was an “inferior officer,” whose tenure was at the pleasure of the Administration.  Richardson refused to fire Cox, though, and resigned in protest.  Nixon then ordered the Deputy Attorney General to fire Cox, and he likewise refused and resigned.  Nixon turned to next-in-line Robert Bork, then Solicitor General.  Bork was of the opinion that as a creature of the Executive, the special prosecutor was an “inferior officer” who served at Nixon’s pleasure, and he accordingly fired him.  In the brouhaha that ensued, Congress re-asserted its power over the Executive Branch by passing the Independent Counsel Act, restricting the authority of the Executive over congressionally authorized investigations.

On October 23, 1987, the Senate rejected Judge Bork’s confirmation after a heated public debate over his political positions.  Among the chief objections was that by backing Nixon’s authority, Bork had shown himself, in the words of the New York Times, “an advocate of disproportionate powers for the executive branch of Government, almost executive supremacy.”  A decade later, Independent Counsel Ken Starr’s investigations into President Clinton’s improprieties led in turn to the Supreme Court’s unanimous decision in Paula Jones v. William Clinton that the separation of powers doctrine did not absolve a sitting President from having to respond to charges of sexual harassment by a low-level state employee.  Jones v. Clinton may have marked the low ebb of Presidential power (though it was perhaps also the high water mark for the rule of law).  Over two decades and both Republican and Democratic administrations, the Legislative and Judicial branches had taken advantage of the character flaws of Chief Executives to substantially reduce the President’s authority.  Conversely, the power of the unaccountable Supreme Court and the uncontrollable Congress appears to be on the rise.  One hopes that the American people will soon find ways to exert a “salutary restraint” on these branches as well, and begin to return constitutional authority to the People, with whom it truly resides.

Thursday, August 12th, 2010

Steven H. Aden is senior legal counsel with the Alliance Defense Fund, a legal alliance that employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.