EMOLUMENTS

In the cacophony of objections to the stunning election of New York Businessman Donald J. Trump to the office of President of the United States, none is more preposterous and laughable than the scurrying of left wing intellectuals to advance constitutional objections to the real course of human events.

It goes something like this: Donald Trump’s business assets and interests are world wide. He has hotels and golf courses all over the planet. He has done business in many, many foreign countries, paid money and made money in many languages. In short, Trump has what our nation’s Founders feared: “foreign entanglements.” Putting a legalistic, scholarly patina on it, Harvard Professor Lawrence Tribe and his cohorts call attention to the “Emoluments Clause” of the federal constitution.

Aha! You never heard of that, did you? Sounds ominous. Especially, when you dub in the motives that drove the founders to include the “Emoluments Clause” in the Constitution. They were concerned about the established nations of Europe, especially England and France, co-opting our new national government by simply buying off our nation’s leaders.

In colonial times, it was not unusual for European kings to grant charters to

people who wanted to settle in America. People were paid money to explore and settle in the new world. Christopher Columbus got money from the Queen of Spain. King Charles II gave William Penn the huge parcel of land that became Pennsylvania.

So this is what George Washington, James Madison, Benjamin Franklin and the rest of them wrote as the last paragraph of Article I, Section 9 of our founding document:

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 any present, Emolument, Office or Title, of any kind whatever, from any King, Prince or foreign State.

No one has yet supposed that Elizabeth II, Queen of the United Kingdom, is likely to dub Donald Trump a Knight of the Realm, or designate him and his progeny as Princes or Dukes of the British Empire.

No, the theory is much more nitty gritty. They argue that Trump will be making money overseas, taking, they argue “emoluments” from foreign powers, which the Constitution forbids.

So if the Prince of Wales decides to play a round of golf at Trump International Golf Links in Scotland, and he pays a greens fee for the privilege, Professor Tribe and his devotees will holler “Emolument, emolument!”

I say that is nonsense. Black’s law Dictionary defines an emolument as:

The profit arising from office or employment: that which is received as compensation for services, or which is annexed to the possession of office as salary, fees, or gain arising from the possession of an office.

In short, our Constitution forbids federal officeholders from being on the payroll of a foreign  government. But wait, you say, it also forbids the President to accept “any present” from a foreign leader or government without Congressional approval.

Indeed it does, and Congress has addressed the matter. The Congress has consented generally, in the Foreign Gifts and Decorations Act, to the acceptance of gifts from foreign countries which are of minimal value and offered as a courtesy or where refusal to accept the gift would adversely affect our foreign relations. The inventorying of such gifts is required by law. Bush 41 received over 40,000 gifts and President Clinton accepted more than 92,000 while in office.

Such gifts are not the personal property of the President or his family. They belong to the United States.

What is of more importance in the debate over Trump’s foreign connections is this fundamental question: Is there reason to believe he will be influenced by personal economic interests in carrying out his Presidential duties?

I submit that it is most unlikely. After all, Mr. Trump is a very wealthy man. He proposes to serve as President without pay. By what rationale can it be said that he is going to be swayed from his sworn duty by the profit motive?

SHEEN

I sat down at the computer prepared to write a scathing critique of the group which calls itself “Unite for America.” It’s a gaggle of Hollywood celebrities, most of whom are junior varsity types. They have made a video pleading with the delegates elected to the Electoral College to ‘go rogue’ on December 19, and vote contrary to the choice of the voters who elected them.

The “A lister” whose visage and voice give street cred to the video Is an actor by the name of Ramon Antonio Gerardo Estevez, better known to American movie goers as Martin Sheen.

No doubt his credible performance as President Josiah “Jed” Bartlet in the popular television series ”West Wing” bolsters the appearance of authenticity when he pleads with Presidential Electors to ‘vote their consciences.’

Certainly the odds are very much against any such uprising. Not only did Donald Trump win by a substantial margin of the Electoral College, but since the delegates are selected by the Parties, they are unlikely to jump the fence.

And besides, about the most Sheen and his compatriots can hope for is to deny a majority for the President-Elect, which would throw the final choice into the Republican dominated House of Representatives. Trump would surely win in that forum as well.

So I confess that I am disenchanted with the notion of a scathing critique. Enough to say that the “Unite for America” video is a fool’s errand.

Still, my research on the subject led me to read the background of Martin Sheen, and I confess that he has intrigued me.

His mother was Irish, an immigrant from Tipperary. I like that. His Dad was from Spain. They had ten children. Sheen was number six, and the first to be born after the family moved from Bermuda to Dayton, Ohio. His left arm was crushed by forceps at birth, and remains about three inches shorter than his right. As a child, he contracted polio and was bed ridden for a year. His mother died when he was eleven and the family was held together by Holy Trinity Parish in Dayton.

His first foray into the world of social justice was to organize a strike among caddies at the Country Club. His complaint: obscenity and anti-semitism by the members. I like that, too.

His Dad didn’t want him to be an actor, but he borrowed money from the parish priest and went to New York.

Early on, Sheen met and worked with Dorothy Day, the activist organizer of the Catholic Worker movement. He never changed his legal name, out of respect for his Dad. His stage name came partly from Robert Dale Martin, the CBS executive who gave him his first big break, and from the iconic televangelist Bishop Fulton J. Sheen.

His stage, film and TV credits go on and on. Along the way, he has

collected a number of awards both as an actor and as a director.

Throughout his career, Sheen has been a politically active liberal. He puts his money and his time where his mouth is; supporting liberal and charitable causes.

I am sure that Martin Sheen and I would find an ocean of topics on which we might disagree. Still, I can’t help respecting a fellow who really believes in what he believes in.

Surely Martin Sheen is not the only American who had, and perhaps still have, misgivings about the qualifications of Donald Trump to be President of the United States.

But Sheen, undaunted, is still out there, still grasping at straws to move the country to where he thinks it should be.

Don Quixote? Tilting at windmills? To be sure. But, in truth, I have done enough of it myself to admire the man. www.conventionusa.org.

HAIL MARY POLITICS

My thoughtful liberal friend Al has favored me with a reading list of several websites and blogs advocating that the Electoral College go rogue on December 19^th and either elect Hillary Clinton or some as yet unidentified compromise candidate. Anybody but Donald Trump.

The anti Trump sentiment common to those writings is pervasive. He is called all kinds of hateful names and accused of all kinds of wrongdoing.

No matter that over 60 million Americans voted for the Donald. No matter that he won more than 300 electoral votes. The hue and cry against his victory has included tearful college students who are too distraught to go to class, and politically naïve teen agers who have marched out of school to parade down the avenue in protest of the national election.

All of which is by way of a contrast with the famous exchange during the last Presidential debate in which Chris Wallace asked both candidates if they would accept the results of the election and concede if they lose.

Trump dodged that question, saying that he felt the election was being “rigged” and insisting that he would not agree in advance to concede, but would wait to see what happens. Mrs. Clinton, on the other hand, was adamant that a losing candidate ought to concede graciously, which has been the tradition in America. She agreed with Wallace that concession begins the national healing process.

So what has actually happened? The losers are mad. They cling to every far fetched hope or strategy which might reverse the election results.

We are favored with scholarly essays about the creation of the electoral college and the intention of the Founders. We are told that legally the electors can vote for anyone, even though several states have laws requiring their electors to vote for the candidate who carried their state.

The fact, of course, is that presidential electors are chosen by the political parties, and their loyalty is sufficient to assure that the vote will go as it always has; to the candidate who wins in each state. The effort to get the Electoral college to ‘go rogue’ has been compared to a desperate, last minute, “Hail Mary” pass in a football game.

There are valid arguments which favor improvement of the electoral college system. A number of responsible citizens have argued in favor of simply electing the President by the popular vote.

That idea has merit, but certainly it cannot by superimposed on an election which was conducted under the existing electoral college rules. Donald Trump conducted his campaign in a manner designed to win a majority of the electoral college. No doubt Hillary Clinton did, too. They both vied for the ‘swing’ states.

If the election was to be based on the overall popular vote, surely the candidates’ strategies would have been different. Under the present system, no sensible Republican will spend time, money and effort trying to win votes in California and New York. Ditto Illinois and Massachusetts.

The fact that Hillary won the popular vote is irrelevant. The election wasn’t about the popular vote. It was about the electoral votes in each of the several states.

The electoral college consists of 535 electors; each state getting a number of electors equal to their total representation in Congress. Because there are 435 Representatives in the House and 100 Senators, the Electoral College is 81% representative of the people and 19% representative of the States.

This ratio has been static for over one hundred years because the House of Representatives is frozen at 435 members. The Founders of our nation intended that the House of Representatives would expand as the population increased. It hasn’t, for the simple reason that incumbent members of Congress do not wish to dilute the power of their offices.

The British House of Commons has 650 members representing 64.1 million people. If the U.S. House were equally as representative we would have 3,200 Congress members. In that case the number of Electoral College votes allotted to the States rather than people would amount to only 3% of the electoral votes.

Bottom line, the Electoral College is no more archaic than the House of Representatives. What America needs is constitutional reform.

BURNING THE FLAG

On April 25, 1976 during a baseball game at Dodger Stadium, in Los Angeles, a 36 year old native American named William Thomas and his 11 year old son dashed onto the field and tried to burn an American flag. Chicago Cubs outfielder, Rick Monday, snatched the flag away from them in an episode long revered as the Greatest Play in Baseball.

Here’s the story: https://www.youtube.com/watch?v=lJe2Ew-rhx8

In the forty years since that historic episode, Monday has been honored many times, and Americans have celebrated his deed as evidence of their reverence and respect for the Stars and Stripes.

At 6:55 A.M. on Tuesday, November 29 2016, President-Elect Donald J. Trump tweeted out this opinion: “Nobody should be allowed to burn the American flag. If they do, there should be consequences – perhaps loss of citizenship or a year in jail.”

Like so many other things Mr.Trump has said, his flag tweet echoed the opinion of the majority of the American people. Even the substantial minority who accept or agree with the Supreme Court’s opinion that flag burning is merely an exercise of free speech mostly feel that desecration of the flag is not something to be encouraged.

Congress adopted the Federal Flag Desecration Law in 1968. It was enacted in response to a series of flag burnings in Central Park, as a generation of Americans recoiled from conscription to fight in the Viet Nam War.

That law, and a number of State laws to similar effect have been ruled unconstitutional by the Supreme Court.

Congress went back to the drawing board in 1989 enacting the Flag Protection Act, which was thought to be less objectionable than the 1968 Desecration Law. This time, there was an outbreak of flag burnings done specifically to protest the new law. Then, in the 1990 case of United States v. Eichman (496 U.S. 310), the Supreme Court again held that flag burning is a form of free speech protected by the First Amendment.  

Over the last 27 years there have been several efforts to muster a two thirds vote in both Houses of Congress in order to propose a constitutional amendment to outlaw flag burning. They have all come up short.

All of which has tempted the Old Judge to weigh in with his opinion.

First of all, it is pretty obvious that burning or desecrating the flag, if speech at all, is symbolic speech. The plain undeniable truth is that flag desecration is an overt action which can be performed for any number of reasons.  

The character of a flag burning; that is the reason why it is done and the effect or consequence of doing it should determine whether the act is right or wrong.

Obviously, a respectful burning of a worn out flag is of a different character from the disrespectful burning of a new one. So here is my suggested flag law:

The burning or other desecration of the flag of the United States in public, for the purpose and with the effect of inciting a riot or other  breach of the peace, or encouraging the destruction of property or injury to persons is unlawful.

Violation of this act shall be punishable by a fine of not more than $5,000 and, or imprisonment for not more than five years.

There is another, more serious motive for flag desecration. Section 3 of the Third Article of the United States Constitution provides:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Therefore, there should be a second section to my new flag law as follows:

If the burning or other desecration of the flag of the United States is done for the purpose of adhering to their Enemies, giving them Aid and Comfort, it shall be Treason and punished as provided by law.