"Present ... from any ... Foreign State"

Volokh, Eugene VOLOKH at law.ucla.edu
Mon Oct 12 18:50:31 PDT 2009


               Seriously, I don't think I have much to say to Prof. Tushnet at this point.  But I'd be happy to engage others on the question.

From: Mark Tushnet [mailto:mtushnet at law.harvard.edu]
Sent: Monday, October 12, 2009 6:05 PM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: "Present ... from any ... Foreign State"


Hmm -- now I'm truly confused by Eugene's arguments, the plural used because they shift from time to time.  Is it that an award from the committee composed at it is actually poses the threat at which the clause was aimed (as the explanation of the relevance of Norway's small size suggests)?  If so, I would have thought that the relative size of Norway and the United States would have some bearing.  (Would it weaken the argument if the award were made by a committee appointed by the Chinese "parliament"?  I would think not, which suggests that the discussion of Norway's size and role in international affairs is a distraction of a sort we're all familiar with from reading exams.)  Or is it that the award does not actually pose such a threat, but must be regarded as precluded by the clause because we need a bright-line rule of the "instrumentality" sort indicated below?  If the latter, I wonder about the redundancy -- adverted to but not discussed -- with respect to the term "King."  To the extent that republics (but not Kings -- contrary to Eugene's formulation) necessarily act through legally identified agents, the use of the term "King" argues in favor of a narrow, not a broad, bright-line rule.

And hmm again -- On the dean's award, again the difficulty is that the hypothetical shifts form in a way that affects the intuitions to which it appeals.  Suppose the award is made by a committee, appointed by the present dean, whose members are the present chair of the school's board of visitors, a former dean, and three others who have been active in alumni affairs.  Will the recipient feel (distinctively) indebted to the present dean, rather than to the committee members and John Smith?  And, of course, the Saudi King example is simply inapposite, for reasons that should be obvious.

Finally, although of course participation in list discussions as evidence suffers from selection bias, so far I count one person modestly endorsing an argument like Eugene's, one person suggesting a different argument going farther than his, and quite a few (as these things go -- I realize that it almost certainly doesn't add up even to ten) who have indicated that they have not (yet) been persuaded by Eugene's arguments.

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)



-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Mon 10/12/2009 5:53 PM
To: 'conlawprof at lists.ucla.edu'
Subject: RE: "Present ... from any ... Foreign State"

            I'm pleased to say that I have no interest in the grades Prof. Tushnet would like to give my arguments, and I'm rather surprised that he would publicly discuss them.  I will refrain from saying what grade I would give Prof. Tushnet's analysis, though I imagine that those who have read this exchange will recognize that I am not deeply impressed by it.

On the merits:  (1)  I would think that the ultimate source of the money is considerably less important than the source of the decision to give someone the money; I'm pretty confident that it shouldn't be dispositive.  Consider an example close to our lives:  Say that some law school dean is given the authority to select any faculty member in the country to get the John Smith Memorial Prize, endowed by John Smith 100 years ago.  Would the recipient of this year's prize feel more of a sense of gratitude and obligation to the selecting dean, or to the 100-year-dead John Smith?  Relatedly, as I mentioned, if the King of Saudi Arabia chose to give a government official a present that came from the estate of some long-dead Saudi, would we really say that the important factor for Foreign Emoluments Clause purposes is the identity of the original endower (who's not a King) rather than the identity of the person under whose authority the recipient is chosen (the King)?

            (2)  As to the bright-line rule, it seems to me that Prof. Tushnet simply identifies a common problem with bright-line rules:  Though there's merit to having such a rule, the constitutional text might be interpreted in ways that yield several different bright-line rules.  There is often no bright-line rule for deciding which bright-line rule we should choose.  This is, incidentally, why I surely wouldn't say there's anything "frivolous" about choosing a narrow bright-line rule (e.g., the foreign emolument counts only if it's given by the head of state or by the state legislature, so that, for instance a present given by the House of Lords without participation of the Commons wouldn't qualify).  But I thought I had given some pretty substantial arguments as to why it makes sense to choose a relatively broad bright-line rule, under which (as I mentioned before) I would say, "since 'foreign States' can only act through their instrumentalities, 'foreign State' has to include more than just the King or other supreme legislative or executive authority, but would also include any instrumentality appointed by a foreign government or a branch of the foreign government, when it is performing the task assigned to it by that government or government branch."

Given the tenor of Prof. Tushnet's post, I'm quite sure I can't persuade him of this, nor do I care if I do.  I post this only to try to continue the discussion with others.

Eugene


From: Mark Tushnet [mailto:mtushnet at law.harvard.edu]
Sent: Monday, October 12, 2009 4:17 AM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: "Present ... from any ... Foreign State"


Hmm -- this omits an important feature of the question, that the very idea of the award and the funds for it come not from the King (or a parliament), but from a long-dead inventor and the trust established under his will.  As one of my earlier comments tried to indicate, there's nothing analytic going on here, just a bunch of intuitions (on both sides of the question, although the substantial bulk of the intuitions reported to the list leans one way).  What's troubling about the analytics is that Eugene's position combines seeking a bright-line rule (as is fitting, perhaps even necessary, given the over- and under-inclusiveness problem), without an adequate specification of what the rule is (my earlier query about the criteria for "might well qualify" went unanswered, except again by an appeal to intuitions that are pretty clearly not as widely shared on the list --nor in the wider community, or so it appears -- as Eugene thinks they are), with an obviously gerrymandered description of the facts to ensure that this award counts as an present without any indication of what changes in facts would change the result (which is what one needs from a bright-line rule).  Would a committee appointed by the parliament, composed of two present members and three NGO representatives, none of whom had previously served in parliament (but who frequently testified before it) count as a foreign state ("might well qualify" as a foreign state)?  A committee composed of five NGO representatives, all of whom had previously served in the parliament?  Omitting for reasons of length a few intermediate steps, the Royal Swedish Academy of Science?  In an immediately preceding post, Eugene's characterization of the committee as expressing "a government's" vision of world politics elides the distinction between "a government's" view and "a" view, again because of the omission of the will/trust/"it's not our money" feature of the problem.

It seems to me clear that what's going on here is a simple political, not legal, disagreement, dressed up in quasi-analytic form.  It's the "quasi" -- the failure to specify when specification seems required, the gerrymandering -- that makes the argument frivolous.  (A legal rule applicable solely to a single set of facts isn't a legal rule, except under highly unusual circumstances, although a case-specific decision can resolve a legal question.)  I'm an easy grader, but I'd give Eugene's arguments, even when pulled together, no more than a C were they offered on an examination.

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)



-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Mon 10/12/2009 1:43 AM
To: conlawprof at lists.ucla.edu
Subject: RE: "Present ... from any ... Foreign State"

               Well, I continue to find Mark's claims of frivolousness to themselves be frivolous, here because they omit the most important factor:  The present is not just from the Duke of Buckingham (though query whether he might be a Prince), but from a committee appointed by Parliament.  The closer analogy would be if the King of the UK appointed some high-ranking Duke each year to award a money prize - which could just as well be a Friend of the English People prize (which would clearly pose the corruption concerns, I think) as a Friend of Peace in the Whole Word prize - or if the English Parliament did the same.  Would we really think that such a prize wouldn't be covered by the Foreign Emoluments Clause, even though a prize given by the King or Parliament directly would be?  I should think that we'd likely see such an award as coming from a King or a foreign State; and at the very least that such a view would be eminently plausible, and far indeed from frivolousness.

               Eugene

From: Mark Tushnet [mailto:mtushnet at law.harvard.edu]
Sent: Sunday, October 11, 2009 8:00 AM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: "Present ... from any ... Foreign State"


Hmm-- on the proposed bright-line rule, what about ejusdem generis, invoked earlier to explain why Senators were not civil officers?  Consider a present from the Duke of Buckingham, (say) fourth in line of succession to become King.  What if the present is from the Prince of Wales, second in line of succession?  From William Pitt, the King's Prime Minister?  Are these presents from a King?  A foreign State?  The effort to make "foreign State" mean something other than, well, "foreign State" continues to seem to me frivolous.  Of course there's a line being drawn that's over- and under-inclusive with respect to its purposes, but it would seem to me frivolous to contend that "King" means something other than, well, "King" simply because the term "King" is under-inclusive with respect to the provision's purposes.  Similarly with "foreign State."  (The list seems to me designed to capture the highest level of sovereignty in nations organized as kingdoms, principalities, and -- something like -- republics.)

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)



-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Sun 10/11/2009 10:38 AM
To: conlawprof at lists.ucla.edu
Subject: FW: "Present ... from any ... Foreign State"



From: Volokh, Eugene
Sent: Saturday, October 10, 2009 9:59 PM
To: conlawprof at lists.ucla.edu
Subject: RE: "Present ... from any ... Foreign State"

               I'm puzzled.  I raised the possibility that when a foreign State's Parliament appoints a committee, consisting of the President of the Parliament, another member, and three former members, to select the recipient of a present, the present itself should be understood as coming from the foreign State.  I would have thought that this is on its face a plausible position, though of course not the only position, and one that I agree practice since 1900 seems not to take.  I'm not sure just how it can seem downright "frivolous" to assert that this sort of structure indeed counts as foreign State action.

               I also tried to buttress this position with the observation that, for structural reasons I mentioned, it makes sense to read the provision broadly, since overly broad readings can be cured by Congressional action, but overly narrow readings might not have been so curable in the eyes of the Framers'.  Nonetheless, this still appears to some to be "frivolous."  I guess I'm just not sure what to say to such an argument.

               Might it be that the position is "frivolous" because I haven't set forth the bright-line that courts would apply?  Well, say that someone argues that when a state Legislature appoints a five-member committee, consisting of two members of the Legislature and three former members, to award a prize, and the award of the prize (say) is made on racial or religious grounds, that would constitute action of a "state" for purposes of the Fourteenth Amendment.  Would we say that this is a "frivolous" position unless the precise boundaries of what constitutes "state action" (something the Court itself has not yet done, 140 years after the Fourteenth Amendment was ratified) are delineated?  I wouldn't think so.

               Now if people really want a rule, I can certainly set forth some that are plausible; for instance, I might say that since "foreign States" can only act through their instrumentalities, "foreign State" has to include more than just the King or other supreme legislative or executive authority, but would also include any instrumentality appointed by a foreign government or a branch of the foreign government, when it is performing the task assigned to it by that government or government branch.  That strikes me as a plausible and pretty bright-line rule- not the only plausible one, but a plausible one, especially given (as I mentioned) that to the extent that it is too broad Congress can easily cure it.  And in the absence of a further argument to the contrary, it seems to me that any claim that this argument is frivolous - again, an argument that the action of a committee appointed by a State legislature, consisting of current or former legislatures, is the action of the State -- would itself be frivolous.

               Eugene

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