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Monday, December 08, 2008
Rich Galen :: Townhall.com Columnist
That Pesky Constitution
by Rich Galen
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Let's get this off the table right now: Senator Hillary Clinton will be confirmed as the 68th Secretary of State for the United States since Thomas Jefferson was appointed on March 22, 1790.

The issue is Article I, Section 6; clause 2 which states:

"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 increased 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."

This is known as the "Emoluments Clause" and has nothing to do with emulsifiers which, until I was 47, I thought it did.

In 2007 the Congress raised the pay of Cabinet Secretaries from $186,600 to $191,300 an increase of $4,700.

Hillary Clinton was first elected to the US Senate in 2000, was re-elected in 2006 and was sworn in for her second term in January 2007 which clearly falls within the "during the time for which (s)he was elected" part of the Emoluments Clause.

So, how can she be confirmed as Secretary of State if she was in office when the pay for that office was increased?

The way around this problem is called "The Saxbe Fix" because in 1973 Richard Nixon wanted to appoint Ohio Senator Bill Saxbe to be Attorney General to replace Elliot Richardson during the Watergate unpleasantness.

While Saxbe was a sitting Senator the pay of Cabinet officers had been increased from $35,000 to $60,000 and that pesky Emoluments Clause was in the way.

Before you start dancing around the coffee room about how it's all Nixon's fault, the first time this came up was when President Taft picked a Senator from Pennsylvania to be Secretary of State in 1909.

According to the Wikipedia entry on this subject the Senate Judiciary Committee determined (in 1909) that rolling back the pay to the previous level fixed the problem because it is the "net increases [which] are the relevant consideration."

So, that fix is 100 years old.

Here's a better question. What if President Obama wanted a Representative or Senator who had been in office in March 2003, to be the Secretary of Homeland Security?

No can do.

The other part of the Emoluments Clause states that "No Senator or Representative shall … be appointed to any civil office … which shall have been created …

Hence the two DHS Secretaries have been Tom Ridge (former Governor of Pennsylvania) and Michael Chertoff (former Federal Judge). The next Secretary will be Gov. Janet Napolitano.

New Topic:

NBC News announced yesterday that David Gregory will be the ninth permanent host of Meet the Press. Gregory has been the chief White House correspondent for NBC having done at least two stints at MSNBC and subbed on the Nightly News and the Today Show.

If you don't think "Meet" has sway read this from the Associated Press: "Meet the Press" dominates the Sunday morning political landscape. During November, it averaged 4.5 million viewers each Sunday. ABC's "This Week" with George Stephanopoulos had 3.5 million viewers, CBS' "Face the Nation" with Bob Schieffer averaged 3.1 million viewers, and "Fox News Sunday" with Chris Wallace had 1.5 million viewers, according to Nielsen Media Research.

I am a David Gregory fan. I know he'll be a terrific guardian of the franchise.

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About The Author

Rich Galen has been a press secretary to Dan Quayle and Newt Gingrich. Rich Galen currently works as a journalist and writes at Mullings.com

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(54 comments so Far)
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Reply # 1
Date: Dec 8, 2008 - 11:33 AM EST
Oh, what the heck!
I guess if we can elect a non-Natural Born Citizen as president, we can overlook the rest of the constitution as well. After all its just a piece of paper and the founding fathers never contemplated that the Messiah would be running for president.

Galen, you are a Gregory Fan? The guy is rude, crude and totally lacking in character.
Give me a break!
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Reply # 2
Date: Dec 8, 2008 - 12:50 PM EST
Wikipedia????
Anyone using Wikipedia as an authoratative source does so at their own risk, because it's information
consists of postings made my anybody, and may or may not be accurate.
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Reply # 3
Date: Dec 8, 2008 - 1:21 PM EST
sandrop
The Supremes just announced they were not going to listen to the first of the two suits about Obama's citizenship. Keep worrying Obama's birth certificate and don't worry about the economy, the two wars we are in, keeping your job, feeding your family or paying your mortgage.
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Reply # 4
Date: Dec 8, 2008 - 1:24 PM EST
Chip
People on this site don't seem to be too worried about the source of their information. A lot of it is made up stuff from the extreme right wing lunatic fringe that gets repeated endlessly until it becomes a fact. Case in point the whole Obama citizenship foolishness.
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Reply # 5
Date: Dec 8, 2008 - 1:31 PM EST
Sandra

Subject: Chip
People on this site don't seem to be too worried about the source of their information. A lot of it is made up stuff from the extreme right wing lunatic fringe that gets repeated endlessly until it becomes a fact. Case in point the whole Obama citizenship foolishness.


So I guess that the US Constitution is a bad source of information -- typical moronic liberal.
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Reply # 6
Date: Dec 8, 2008 - 1:43 PM EST
Sandra,

how does worrying help someone improve the economy, stop the two (I am only aware of the war against terrorism, what is the second war you are worrying about?) wars we are in, keep their jobs, feed their families or pay their mortgage.

You are probably right, Americans will never know why Obama is keeping his original birth certificate secret.
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Reply # 7
Date: Dec 8, 2008 - 1:53 PM EST
US Constitution?
Is just a goddammed piece of paper according to your "divinely appointed" President, George W. Bush.

Apparently it is only important to Republicans when it can be applied to Democrats elected or selected to hold government positions.
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Reply # 8
Date: Dec 8, 2008 - 2:04 PM EST
Disillusioned
I'm still shaking my head over where conservatism stands today, and trying to understand why the fall was so complete and so swift.

Part of the problem is that there is a lot of paranoia and wrong impressions about the other side. The whole birth cerrtificate thing is a case in point.

The case the Supremes turned down today was about Obama's father being a British subject at Obama's birth--not about a birth certificate (although I believe the Berg case, still pending, is about where Obama was born)

But the point is that Obama is an American citizen, and he is to be our next president. Wouldn't it be more productive to concentrate on what happens in Congress now? After all, the president only proposes and enforces legislation--it's Congress that actually makes the laws.

Let's keep our eye on the ball and forget the extraneous nonsense!

Happy Holidays!
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Reply # 9
Date: Dec 8, 2008 - 2:06 PM EST
DDL
And, pray tell, how did George Bush consider the Constitution a "goddammed piece of paper"?

Before I listen to you start quoting the Daily KOS, I would like you to do me a favor:

Tell in one (1) ONE right, guaranteed by the Constitution, that you lost under George Bush. If you cannot tell me one right you have personally lost under this president, then shut up.
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Reply # 10
Date: Dec 8, 2008 - 2:12 PM EST
Chip
Yes Chip, BUT of all the pages I have visited in both English and Chinese, I have found only a very few that were wrong. One was the origin of the name for Union County, Georgia (It was not named for the Union Army, but the Union Party, an pro-Indian removal party from the 1830s)and the date that Sun Yat-sen became provisonal president (it was correct in the Chinese version) and implying that the 54th Mass. Infantry was annihilated at Battery Wagner (which they incorrectly call at Fort). Outside of those errors, I have found none.

Of the pages I have visited, very accurate.
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Reply # 11
Date: Dec 8, 2008 - 2:23 PM EST
husker2:
I'll step up and respond to the question you posed to DDL.

The right to be free of unreasonable search and seizure under the 4th amendment.

Warrantless wiretaps, anyone??
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Reply # 12
Date: Dec 8, 2008 - 2:29 PM EST
Memory....
I'm old enough to remember that none of you GOPers had any problem with Tricky Dick tweeking the law to get his boy in as AG.

Suddenly you pretend to be concerned about the Constitution?

You same people who support the Patriot Act?

Excuse me while I snicker.....
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Reply # 13
Date: Dec 8, 2008 - 2:29 PM EST
Ann, just how do you "know" that BO
is an American citizen? Oh yeah, because he said so and he is "the One" so it must be true!

What a maroon! (not a typo!)
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Reply # 14
Date: Dec 8, 2008 - 2:30 PM EST
Iam
Nice try.

You know and I know that the issue of warrantless wiretaps is nonsense. This is another Democratic talking point that has no basis in fact.

The tapping of phone lines was authorized. It applied only to foreign endpoints, coming from known terror suspects.

By the way, you'll have to blame your own for the above. This was started during the Clinton years, after the first Trade Center bombing.

YOUR rights under the 4th amendment were never in question, unless you were calling a known terrorist.

Next.
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Reply # 15
Date: Dec 8, 2008 - 2:32 PM EST
Restore the Constitution
Our government and our political system have become so hostile to the US Constitution that it will take revolution or civil war to restore it. One of the basic problems is allowing lawyers to dominate our political system. Every lawyer thinks they are smarter than the men who wrote the Constitution, and every lawyer thinks they are entitled to interpret it any way they choose, thereby rendering it meaningless. Instead of a solid foundation we have a tower of psycho-babble (as in psychotic. Ever listen to a Barbara Boxer speach?).
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Reply # 16
Date: Dec 8, 2008 - 2:32 PM EST
Ex-pat/rick in Geneva
Did you read the entire article?
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Reply # 17
Date: Dec 8, 2008 - 2:52 PM EST
Iam
A little more one "warrantless wiretaps':

John Schmidt, who served as associate attorney general in the Clinton Justice department, has written an article arguing that the president — Clinton, Bush, or any other chief executive — has the inherent authority to order warrantless surveillance. The courts have upheld that position several times, Schmidt writes in the Chicago Tribune, and, what is more, "Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms."

In fact, Clinton argued that he retained the right to order warrantless break-ins of terrorist's homes.
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Reply # 18
Date: Dec 8, 2008 - 3:00 PM EST
Richnotwealthy:
I guess because BHO was born in Hawaii to an American mother. I believe that is enough to confer citizenship.
I guess there is a lot of talk about the birth certificate being a forgery, but since the Hawaii state official certified it (and I think I read somewhere that he is a republican or appointed by a republican)--I just can't see how that is a credible claim. It sounds pretty paranoid and conspiracy-theory-ish to me.
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Reply # 19
Date: Dec 8, 2008 - 3:12 PM EST
Husker2 at 2:06
Under conservative-in-name-only President Bush, I continued to lose the right of choosing a school of my choice until after first paying taxes to support the unconstitutional Federal Department of Education and Indoctrination.

Under RINO McCain, I lost part of my freedom of political speech with the McCain Feingold Bipartisan Campaign Reform Act which was signed by Bush.


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Reply # 20
Date: Dec 8, 2008 - 3:13 PM EST
doctorfixit
I am a lawyer, and very fervently believe in the Constitution as it was conceived and applied by our founders. I believe that the majority of Americans today know more about Dancing With the Stars than they do about our history and the Constitution. Getting rid of lawyers will not change that reality. Whether it is a lawyer or non-lawyer that is playing on the electorate's ignorance is about as relevant as whether Obama will smoke in the White House.
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Reply # 21
Date: Dec 8, 2008 - 3:23 PM EST
Husker2
And, pray tell, how did George Bush consider the Constitution a "goddammed piece of paper"?

How?

When Bush became angry at an aide who had the gall to claim that there was a valid case that the provisions of the Patriot Act undermined the Constitution.

As far giving you an example of losing any of my rights that have been guaranteed under the Constitution, I never made a claim that I personally lost any, it was a comment regarding applying the Constitution to elections and appointments.

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Reply # 22
Date: Dec 8, 2008 - 3:29 PM EST
Not a living document
Voters on the left and right do not re-elect representatives who honor the Constitution. Once a group buys and steals 50.01% of the votes, they want to get other people's stuff put into their pockets and for everyone to march in lockstep with their vision of America.

The burden falls on the DC Supremes and they only occasionally honor their oaths to protect and defend the Constitution against misguided voters and their representatives, almost all of whom had been indoctrinated in government monopoly schools. Unfortunately, the 5-4 Supremes are too busy protecting and defending the erroneous decisions of dead judges (precedents).
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Reply # 23
Date: Dec 8, 2008 - 3:38 PM EST
William at 3:20
I am a strict constitutionalist and that includes the amendments which finally terminated slavery (in this country). If there is still something in the amended Constitution that is objectionable, we, the people, have the option to amend it but not to ignore it.
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Reply # 24
Date: Dec 8, 2008 - 3:39 PM EST
William
Spoken like a true nitwit. Your inability to understand my point speaks volumes. My review of your musings on this blog reveals your keen ability to scratch the surface of any issue, then producing a sound-bite (and not very good ones at that)and then basking in your perceived glory. Good for you! Feel-good politics at its best.
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Reply # 25
Date: Dec 8, 2008 - 3:43 PM EST
HUsker2
Hello. I don't feel that I've personally lost any rights under the recent administration, but I've been very concerned about Bush's view of Habeas Corpus and Guantanamo Bay.

Don't misunderstand me--terrorists need to be locked up. But I think that trying to deny the GB prisoners the right to contest their detentions has been a disastrous mistake in many regards--most especially in terms of our standing in the world, but also in terms of our effectiveness at combatting terrorism.

I understand that there has been little to no actionable intelligence gained from the prisoners in GB, and that some of the prisoners have been cleared, but no one will take them, so they have to remain there.

It seems to me that had the prisoners been granted Habeas rights from the beginning, the CIA and the military could have separated the wheat from the chaff, so to speak, and spared us many of the mistakes we have made there.

Thanks.
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Reply # 26
Date: Dec 8, 2008 - 3:45 PM EST
William
Which also provided for amendments...nitwit.
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Reply # 27
Date: Dec 8, 2008 - 3:47 PM EST
Sandra @ 1:21 pm
Why should we worry about keeping our jobs, feeding our families or paying our mortgages since the Dear Leader is going to take care of that for us, according to Peggy the Moocher?
Flag as Offensive

Reply # 28
Date: Dec 8, 2008 - 3:48 PM EST
Husker2
Both Clinton and Bush are wrong. They don't have the right.
Flag as Offensive

Reply # 29
Date: Dec 8, 2008 - 3:54 PM EST
keeping us safe
yeah just like those phone sex calls they intercepted from gi's overseas to their wives and passed around the office-that was real vital to national security.they did charge one or two with premature ejaculation though.so we are safe from that i guess.
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Reply # 30
Date: Dec 8, 2008 - 3:55 PM EST
William
Actually, the Electoral College was formed to prevent the larger states from dominating the smaller states.

I would like to know which of the Founding Fathers you say could barely write their names and the citations for your information. The Founders were well-educated, especially in the Greek and Roman classics, and brought the benefit of their education to the Constitutional Convention. They were much better educated, relatively speaking, than the average high school, or even college, graduate today.
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Reply # 31
Date: Dec 8, 2008 - 3:57 PM EST
Nitwit
I would not take you as a client. Apology accepted.
Flag as Offensive

Reply # 32
Date: Dec 8, 2008 - 3:59 PM EST
Ann at 3:43
Partially to protect civilians, the Geneva Convention says that combatants in civilian clothes are not protected. In past wars, many were interrogated and then shot as spies. It was not considered cost effective to provide them all a lawyer.
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Reply # 33
Date: Dec 8, 2008 - 4:09 PM EST
DDl
You wrote: "As far giving you an example of losing any of my rights that have been guaranteed under the Constitution, I never made a claim that I personally lost any, it was a comment regarding applying the Constitution to elections and appointments."

A comment regarding applying the Constitution to elections and appointments?

What in the world are you talking about? How did Bush violate the Constitution as it applied to elections and appointments?
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Reply # 34
Date: Dec 8, 2008 - 4:15 PM EST
William
You said "some" of the Framers. So far you have only named one. I don't consider that to be "some".
Flag as Offensive

Reply # 35
Date: Dec 8, 2008 - 4:20 PM EST
William
You are correct that the Constitution never solved the slavery issue. The Southern states wanted slaves to be counted just like anyone else, but the Northern states (which also held slaves at the time, BTW), fearful that this would increase Southern influence in Congress, resisted that effort. That led to the "three-fifths" compromise, granted a bad compromise. I do not believe that this in any way meant the Founders were bad men or did not comprehend the problem of slavery, they clearly did if you go back and read their writings on the subject.
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Reply # 36
Date: Dec 8, 2008 - 4:24 PM EST
William NJ
Your first comment, "George W. Bush along with Richard Cheney stand to be impeached for high crimes and misdemeanors and for violating the following Articles and Bill of Rights of the United States Constitution:"

Too ridiculous on which to comment. You do know that the charges you listed have been debunked. You may want to talk to the other truthers about the birth certificate. Have fun.

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Reply # 37
Date: Dec 8, 2008 - 4:32 PM EST
Hi Poorgrandchildren.
Thank goodness the 1977 Geneva Convention outlaws the summary executions you described.

And I absolutely understand the need to protect us from terrorism, but what I meant to say, and sorry if I was inarticulate, is that because GB prisoners were not given even the most rudimentary probable cause hearings, we don't know if those guys at GB were even non-uniform-wearing enemy combatants to begin with. Evidently, some were "sold" to the CIA by rivals or neighbors with a grudge. they should have been given the right to contest their detentions.
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Reply # 38
Date: Dec 8, 2008 - 4:32 PM EST
Ann from PA
You wrote: "I understand that there has been little to no actionable intelligence gained from the prisoners in GB."

How do you know that?

The right of Habeas Corpus is not extended to prisoners of war.

The problem arises because some claim that we are not at war, and these fun-loving good ole boys at Guantanamo are not POWs.

Once again, Bush joins other presidents, including FDR and Kennedy in declaring that captured enemies are not entitled to certain rights.
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Reply # 39
Date: Dec 8, 2008 - 4:39 PM EST
poorgrandchildren.com
As much as I want to agree about the Department of Education, I don't believe you can nail this one on Bush. You know that Bush would never have been allowed to do away with the Department.
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Reply # 40
Date: Dec 8, 2008 - 4:55 PM EST
Bush and rights
I do not wish to argue with other conservatives about defending George Bush.

The issue remains. Liberals, Democrats, and disappointed Libertarians continue the mantra: George Bush trashed the Constitution and did away with our rights.

I again ask, "How?"

Everything many of you have stated above (except the stupid argument about that "secret" agent Valerie and the WMD) applies to other presidents (Democrats included).

How has Bush taken away your rights or trashed the Constitution?

For you history-loving liberal Democrats, if you want to see a true trashing of the Constitution, read about the 1930s.
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Reply # 41
Date: Dec 8, 2008 - 5:21 PM EST
William at 4:45
The Constitution was never intended to be a blue print toward true democracy. Our founders rejected de-mob-ocracy and mandated a republic in Article 4, Section 4. One problem with democracy is that it allows you to cram any damn thing you choose down everyone's throat just by buying and stealing 50.01% of the votes. Forcing everyone to march in lockstep with any current majority is not exactly progress toward the goal of individual freedom.
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Reply # 42
Date: Dec 8, 2008 - 7:08 PM EST
Tell me, Galen
Were you as concerned about the constitution when Bush was corrupting it left and right for the sake of Guantanamo? Suveillance? The Department of Justice?

Funny how you suddenly care.
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Reply # 43
Date: Dec 8, 2008 - 7:49 PM EST
LMoore
You wrote: "Were you as concerned about the constitution when Bush was corrupting it left and right for the sake of Guantanamo? Suveillance? The Department of Justice?"

How did Bush corrupt it?

Tell me in your own words, please. Don't cut and paste the inane things you have read on the Daily Kos.
Flag as Offensive

Reply # 44
Date: Dec 8, 2008 - 8:55 PM EST
You almost had me boiling until I
until I realized you're right. Gregory will continue down the path of Sunday Morning News shows. ABC's This Week has a Democrat host and a panel of 3 liberals and one moderate. Only Fox News has a balanced panel.

For those deluded persons who want to think Russert was impartial, he certainly leaned to the left and he generally yucked it up with his buds from the left while he posed serious questions to his guests on the right. So he was good journalist part of the time. Unfortunately, the bias gives amateur observers a false impression at best and misinformation too often.

Gregory will likely fall into the ABC George S. category -- Blatant leftist. Oh well, you can still see a good interview when there's a conservative guest.
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Reply # 45
Date: Dec 9, 2008 - 4:39 AM EST
Obama is a Constitutional Expert

Thats what they tell us. But clearly he is setting the tone of ignoring the Constitution when its inconvient.

As anyone can clearly read, "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,

Ah excuse me,,, Hillary is serving in the "time" for which she was elected.

This sets a tone throughout all levels of government. Why should FBI, CIA, U.S. Military, Police Officers obey the constitution when the highest elected official ignores it?

For the Constitution to work, everyone must obey it.

So again we prove we are not a nation of laws, but of men.

When you serve on a jury, you only perpetuate the corruption.
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Reply # 46
Date: Dec 9, 2008 - 8:44 AM EST
The constitution . . .
guarantees NO rights. The Constitution LIMITS "government" intrusion into mankind's NATURAL rights that are ENDOWED by our CREATOR.
This is why the 1st amendment states that "congress shall pass NO law . . .
It is a shame that so-called "educated" people (constitutional "scholars" included) are so ignorant of the meaning and understanding of our Constitution. This gives them the convenient excuse to erroneously state the the Constitution "grants" rights.
It is a fact that most parts of our constitution are ignored by misplaced "consent of the governed".
The "checks and balances" structure of our government was skewed towards the federal system and away from the states when direct election of senators was implemented. Previously, senators were appointed by the state governors, thereby giving the states their say in the federal system.
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Reply # 47
Date: Dec 9, 2008 - 10:26 AM EST
MY disgust with MTP choice
Will Gregory now shun his two buddyies: Matthews and Olberidiot and become a journalist or continue to try to make everything about himself?
Flag as Offensive

Reply # 48
Date: Dec 9, 2008 - 1:26 PM EST
Akagi
Judging from you past posts, if you
approve Wikipedia, that's a good indication of it's unreliability.
Flag as Offensive

Reply # 49
Date: Dec 9, 2008 - 3:06 PM EST
Response to Chip re Wikipedia
The reason wikipedia is reliable is precisely because 'anybody' can contribute to it. Hence any inacuracy is promptly corrected by the same type of geeks (us) who troll this site.
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Reply # 50
Date: Dec 9, 2008 - 3:12 PM EST
Another one for Husker2:
To launch a war only with the advice and consent of Congress. The Bush team snookered Congress into approving the Iraq war with false claims of Hussain's WMD's.
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Reply # 51
Date: Dec 9, 2008 - 3:37 PM EST
VietIraq
Sort of like how Kennedy hoodwinked congress into sending troops to Vietnam?

Of course, a stupid guy like Bush could never have accomplished snookering congress so easily.

He didn't have to. He just had to quote Bill Clinton & Hillary Clinton to justify an invasion.
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Reply # 52
Date: Dec 9, 2008 - 4:02 PM EST
Presidential pay
So a sitting congress critter can't be the President if they voted on the last pay raise? Hmmmmm.
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Reply # 53
Date: Dec 9, 2008 - 10:15 PM EST
gene
Another one?

I'm still waiting for the first one.

Bush snookerd Congress? How?

Once again, quit reading the Daily Kos and start reading actual reporting. Learn something about what really happened - not just what the Bush "truthers" claim happened.
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Reply # 54
Date: Dec 9, 2008 - 11:23 PM EST
The Constitution ...
like the Bible is a dead issue in the world of heathens. Now the UN Charter ... there's a work to capture mankinds spirit for eternity.

Sorry, dear reader; whilst you were preoccupied your children were being educated by MTV and the country was moved from under you.

Has anyone bothered to read ..
'The Character of Nations'
by Angelo M. Codevilla

You can sound out words, can't you?
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