Using the Emoluments Clause to sue the President reinforces congressional weakness, and there is a better way.
Sometimes it takes an outsider really to understand what is going on. This happened about two centuries ago, when Alexis de Tocqueville, a French aristocrat intrigued by the rise of democracy, traveled to America to try to understand the future. He wrote a book, Democracy in America, which is just about the best study of American mores, politics, and law ever written. Now, quite some time later, another outsider (of sorts) is engaged in an examination of our society, and is offering some similarly powerful insight. This time it’s a Canadian telling us the truth about America. Francis H. Buckley, Foundation Professor at George Mason’s Antonin Scalia School of Law. Buckley is now an American law professor, but he grew up in Canada, went to law school there (before gaining a Master’s degree at Harvard Law), and he has also taught at McGill Law School in Montreal, the Sorbonne (Paris II), and Sciences Po in Paris. The comparison with Tocqueville is not at all far-fetched, as Buckley, now a citizen both of Canada and the United States, has the same deep grounding in the classics as did the famous French lawyer and sociologist, has some of the same European perspective from his teaching in France, and, as is evident from the book, has the same clear-eyed skepticism about humans and their motives.
In this sparkling little volume, Buckley tackles the most pressing problem in our polity, that of a bloated federal government and the corruption that it has now spawned. Buckley even goes so far as to suggest that corruption in the government – the issue that probably did the most to allow Donald Trump to triumph over Hillary Clinton – is the issue that actually now dominates our politics. He suggests that the “old liberal-conservative ideological axis appears increasingly irrelevant as a corrupt-virtue axis bids to take its place” (p. 8). His book is a splendid step in recovering something of the republican virtue that our founders knew was necessary if the United States was to avoid the corruption that they believed had consumed late 18th century Europe. European corruption, the Framers believed, was caused by the centralized power of the great monarchies, and Buckley makes a convincing case that in our time, it is our centralized and increasingly-powerful federal government that has created a similar crisis.
The mechanism that the Framers set up for us to prevent European style abuses was the Constitution of 1787, with its system of dual sovereignty (federalism) and separation of powers (checks and balances), but Buckley joins a swelling chorus demonstrating that the Framers’ design has failed, first because the federal government has overwhelmed the power of the states, and, second, because the executive branch has accumulated too much power and influence at the expense of the legislature and judiciary. One might quibble a bit with some of this, since it could be argued that the federal judiciary, the body which might have prevented some of this, has itself been guilty of reducing the authority of state and local government, and centralizing policy-making in both the federal judiciary and the executive. But this should not detract from the persuasive power and analysis that Buckley offers, and his fresh examination of familiar materials that yields new insight.
In a tour-de-force which borrows from thinkers as diverse as Plato, Livy, J.G.A. Pocock, Stendahl, George Stigler, Danton, Robespierre, Arthur Koesler, Merleau-Ponty, Tocqueville himself, and many, many others, Buckley even offers a legislative plan to put us back on the path marked out by the Constitution’s authors, from which we have strayed. Even more striking, going back to the Constitutional Convention itself, Buckley examines in some depth the records of that debate regarding that undertaking, dismisses Madison (as naïve and unsophisticated), and reminds us of the subtle (if somewhat slimy) more powerful thinking of such as Benjamin Franklin and Gouvernor Morris, men tainted by corruption but perhaps wiser in the ways of the species. This is a bold interpretation of the debate among the framers, which rather convincingly suggests that Madison – often thought to be the most important of the framers, at least in terms of theory – actually may have been too concerned with abstract notions, and failed adequately to grasp the essential requirements of government in a republic based on popular sovereignty. Not everyone will buy this new spin on the Founding, but at least in his emphasis of how and why the founding era was concerned with the corruption that now besets us, Buckley has much to offer.
Intriguing as Buckley’s examination of the measure and the real motives and insights of the Framers is, however, his more valuable contemporary contribution is to call our attention to their failures, and, in particular, the creation of a President. That executive was never meant to have the power ours has assumed, Buckley persuasively argues, and, indeed, the President as conceived by the Framers was not intended to be a creature of partisan politics, but rather was either supposed to be elected by virtuous members of the electoral college (who would not be selected on a partisan basis), or selected by Congress when the Electoral College (as the framers expected would occur often) was not able to reach a consensus. The framers thus conceived of a President, who, in an altruistic manner, would preside, but not reign over the government. It didn’t work out that way, and Buckley makes the commonsense observation that these days Parliamentary systems, such as they have in Canada, the United Kingdom, and New Zealand, are freer from corruption and abuse than Presidential systems.
Buckley does not suggest (though he well might have) that we call a Constitutional Convention, and switch to a Parliamentary system, nor does he (in this book at least) offer other Constitutional fixes (though he might have proposed House and Senate term limits as one such fundamental alteration). Moreover, Buckley is again perceptive as he makes clear that legislative attempts at eradicating corruption (such as campaign finance reform) have so far spectacularly failed, and, indeed, have ended up simply as incumbency-protection devices. Nevertheless, and with a commendable optimism that Buckley may have picked up as he becomes more American than Canadian, he does propose a couple of legislative tweaks to our system, involving alterations in the jurisdiction of federal courts, the revolving door of congressmen and lobbyists, and campaign contributions.
With this volume Buckley assumes a place as one of our most talented and astute social critics. Buckley’s witty and learned book is a brilliant indictment of American corruption, and an absolutely searing evisceration of both Hillary Clinton and the Obama administration. Buckley has been among the very few American law professors openly supportive of Donald Trump (I’m honored to be with him in that endeavor), but his book is written in about as non-partisan and unruffled manner as a passionate and brilliant person could be expected to have done. The sad truth is that too many American law professors can write only arcane esoteric works on obscure points of law. Buckley has, instead, like Tocqueville, given us a vital comment on American culture and politics.