Office Of Profit Research Articles

The 1792 Madison-to-Pendleton Letter: A Time for Reconsideration, Reflection, and Response?

In a 1995 Stanford Law Review article, Professors Akhil Reed and Vikram David Amar argued that the U.S. Constitution’s Succession Clause and its “officer”-language does not permit legislative officer succession. They concluded that the nation’s first succession act—passed by the Second Congress—which put the Senate’s and House’s presiding officers in the line of presidential succession—was unconstitutional. The modern presidential succession statute also puts legislative officers in the line of succession, and so the Amars concluded that it too was unconstitutional. In reaching their conclusion, they opined on the Succession Clause’s history, text, purpose, etc. The largest part of their argument was of a more intuitive variety: i.e., argument based on so-called “constitutional structural.” The Amars supported their intuition, in substantial part, by claiming James Madison shared their intuition. Or, to put it more precisely, they renewed an argument which, according to the Amars, was first put forward by James Madison in a letter to Edmund Pendleton (hereinafter the “Madison-to-Pendleton Letter”), and then they claimed Madison as high authority for the position they put forward. My object in this short paper is limited: it is to show why the Amars were wrong to rely on James Madison. The argument they put forward is their intuition, and not Madison’s. The Amars’ argument may be right on the merits (i.e., legislative officer is unconstitutional) and it may be wrong (i.e., the first succession act and its modern successor are both constitutional)—but the Amars’ claiming the mantle of Madison in support of their position is and always was largely historical error. The intellectual stakes here are not only reasonably high, but also peculiarly timely. The meaning of the Constitution’s Succession Clause and its “officer”-language is always two heartbeats away from contemporary relevance. That issue is always of at least some concern, even absent hype and the more idiosyncratic concerns of cloistered academics. Today, the presidential succession issue is relevant not merely because we are two heartbeats away, but also because we are one impeachment and one heartbeat away from applying the 1947 Presidential Succession Act—which puts the two presiding legislative officers, i.e., the Speaker of the House and the Senate President Pro Tempore (“SPPT”), in the line of succession. Finally, the Amars’ article and the Madison-to-Pendleton Letter are the key (modern) article and the key (premodern) historical evidence discussed in the academic debate over the Constitution’s “office”-language. That debate no longer resides exclusively in the halls of the academy—it has moved into the federal courts which are now litigating civil claims brought against the President under the Foreign Emoluments Clause. That latter clause applies to “Person[s] holding any Office of Profit or Trust under [the United States].” How we resolve or should resolve the issue of whether the President holds an office of profit or trust under the United States will depend, in part, on the rightness (or wrongness) of the Amars’ analysis, the meaning of the Succession Clause and its “officer”-language, and the meaning of the Madison-to-Pendleton Letter. Finally, I add that over ten years ago, I hypothesized that: “There is some reason to believe that [in the Madison-to-Pendleton Letter] all Madison was doing [was] reporting prior debate. Viz., each of ‘Madison’s’ four arguments in his letter to Pendleton had already been expressed on the floor of the House by speakers other than Madison in prior debate.” Today, I intend to make that claim good.

Parliamentary Disqualification for Financial Conflicts

When should financial interests bar someone from election to or service in Parliament? This article critically analyses the case law on the Constitution’s provisions on pecuniary interests and offices of profit. These cases are seeing the High Court sculpting new law out of old stone. The article is structured both chronologically and thematically, and explores the case law’s litigational and political context, and its relationship to pecuniary interest registers, as well as its jurisprudential value. Ultimately, the Court is found to be grappling with—and somewhat at sea in — fixing workable and consistent purposes for the constitutional provisions, especially given the need to fit these provisions within the broader values of parliamentary and electoral law and practice. The article concludes by assaying and proposing reform options.

Minding their Ps and Qs; the Royal Navy purser and accounting and governance, 1731–1808

This research explores the accounting regulations imposed on sea officers, particularly the purser, on board Royal Navy ships between 1731 and 1808. This was a period in which the Royal Navy grew to become one of the largest enterprises in Europe with operations throughout the world. The governance, control and accountability practices imposed upon pursers are analysed. The Regulations for accounting records to be kept by pursers indicate that accounting changed very little in the analysis period, until 1808, when it became substantially more detailed. Drawing on institutional theory, it is argued that this was due to external pressures for increased governance following the impeachment of Melville (First Lord of the Admiralty), public spending administrative and accounting reforms and political disapproval of ‘offices of profit’. The article provides important insights to the development of accounting, governance, audit and accountability within the Royal Navy, and enhances understanding of the historically unique role of pursers.

Amicus Curiae Brief of Federal Jurisdiction and Constitutional Law Scholars - Blumenthal v. Trump

Plaintiffs — 30 members of the United States Senate and 171 members of the United States House of Representatives — bring claims arising directly under the Foreign Emoluments Clause of the Constitution, which states 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.” Plaintiffs allege that Defendant has accepted benefits from foreign governments that qualify as “Emolument[s]” without first seeking and obtaining “the Consent of the Congress,” as the Constitution requires. They therefore allege that the Defendant has injured them by eliminating their constitutional power to vote on whether to grant consent to proposed emoluments before those emoluments are accepted. This brief, on behalf of 16 scholars of federal jurisdiction, Article III standing, and constitutional law as amici curiae, argues that Plaintiffs’ claims fall squarely within the Supreme Court and D.C. Circuit’s case law recognizing that legislators have standing to sue when they have been denied an opportunity to cast a specific vote to which the Constitution entitles them. The brief also explains why — unlike the Plaintiffs in Raines v. Byrd and other cases in which legislative standing has been denied — there are no available legislative means to redress the Plaintiffs’ alleged injuries.

Motion and Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & Maryland v. Donald J. Trump, President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Oct. 6, 2017) (Peter Jo Messitte, J.) (filed by Professor Josh Blackman et al.), Doc. No. 27-1,

The Foreign Emoluments Clause 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.” Plaintiffs contend that because “Defendant Donald J. Trump is the President of the United States of America,” he “thus holds an ‘Office of Profit or Trust’ under the United States.” Their argument certainly has an intuitive appeal: How could the Presidency not qualify as an “Office of Profit or Trust under the United States” for purposes of this important anti-corruption provision? But an intuition is not an argument. Plaintiffs cannot point to a single judicial decision holding that this language in the Foreign Emoluments Clause, or the similar phrase “Office... under the United States” in other constitutional provisions, applies to the President. Rather, the text and history of the Constitution, and post-ratification practice during the Early Republic, strongly support the counter-intuitive view: the President does not hold an “Office... under the United States.” The Framers of the Constitution, making use of the progenitor British drafting convention of “Office under the Crown,” used the phrase “Office... under the United States” to refer to appointed officials in all three branches of government. That category did not include elected officials, such as the President and members of Congress. The weight of evidence, spanning from the colonial period to the American Revolution, and then through the Constitutional Convention and to the First Congress, and finally to the Washington Administration, and into the Early Republic, demonstrates that elected federal officials, such as the President, do not hold “an ‘Office of Profit or Trust’ under the United States.” Thus, the President is not subject to the Foreign Emoluments Clause. President Washington and his founding era successors during the Early Republic openly received, accepted, and kept diplomatic gifts and other gifts from foreign governments and their officials without seeking or receiving congressional consent. For example, President Washington received a diplomatic gift from the French ambassador to the United States; it was a framed full-length portrait of King Louis XVI. Likewise, President Jefferson received a bust of Czar Alexander I as a diplomatic gift. If Plaintiffs were correct, these presidents and others central to the founding of the United States of America openly committed impeachable offenses or were ignorant of the Constitution they helped draft and define. Washington’s practice, and that of his successors during the Early Republic, of accepting such gifts confirms that they understood that the President was not subject to the Foreign Emoluments Clause and its “Office... under the United States” language. The drafting practices of the First Congress and the writings of Alexander Hamilton lend further support to this position. For these reasons, Plaintiffs’ prayer for a declaration that the President “is a ‘Person holding any Office of Profit or Trust’ within the meaning of the Foreign Emoluments Clause” should be denied. President Trump’s business activities may raise ethical conflicts under modern good governance standards, but they raise no constitutional conflicts under the Foreign Emoluments Clause. The complaint: 2017 WL 2561946, filed June 14, 2017.

The Concept of 'Office of Profit' in India

In democratic systems across the world, there are constitutional provisions and legislations, putting a certain bar on elected representatives from holding ‘Office of Profit’. The inherent idea is to ensure that personal and pecuniary interests will not come in the way of the objective and effective discharge by the legislators of their onerous responsibilities. At the same time, it has to be borne in mind that in democratic politics, parliamentarians and legislators, besides their varied role as elected representatives, are also expected to aid and advise public institutions and trusts so as to help these institutions function efficiently for the welfare and well-being of the people and the country at large. The rationale and the raison d’etre behind the concept of ‘Office of Profit’ is that the holder of a public office should not get influenced by any consideration whatsoever while discharging his various responsibilities. An elected representative is the repository of the confidence and trust of his constituents. That being so it is imperative that they do not corrode public confidence by any act of omission or commission while performing their varied roles. It is but natural, therefore, that members are expected to act according to the highest standards of probity, accountability, honesty and integrity in the exercise of their public duties.

Office of Profit: Is the Parliament Empowered to Exempt Retrospectively?

Article 102(1)(a) of the Constitution of India makes the holding of an “office of profit” under the Government as a ground for disqualification from membership of the Parliament. This rule is however subject to the exception that the Parliament may, by law, declare certain offices of profit as not disqualifying the holders thereof from membership of the Parliament. The Parliament, in exercise of this power, enacted the Parliament (Prevention of Disqualification) Act, 1959 (“the PPD Act”). The nature and scope of this power recently came in question before the Supreme Court of India when the Parliament amended the PPD Act in 2006 and retrospectively exempted certain offices from the purview of Article 102(1)(a). The Supreme Court, while upholding the validity of this amendment, held that the Parliament can, till the time the President renders a decision on the alleged disqualification of an MP under Article 103, validly exempt the offices of profit. This paper seeks to highlight some of the considerations that the decision of the Supreme Court does not seem to address. One such concern is the decision may render the function of the President under Article 103 practically futile. The phrase “shall be disqualified…if he holds any office of profit” in Article 102(1)(a) seems to be intended to make the disqualification of an erring MP mandatory, immediate and automatic, admitting of no intervening time gap between an MP’s holding of an office of profit and his disqualification on that ground. The decision also seems to be watering down the concept of “objective criterion” as opposed to the “subjective criterion” held by the Courts as required under the provisions of the Constitution.

Offices of profit and contracts with the government: Western Australia

Offices of profit and contracts with the government: Western Australia

Trusts—Remunerated Trusteeship as an “Office of Profit”

Trusts—Remunerated Trusteeship as an “Office of Profit”

His Lordship's Patronage: Offices of Profit in Colonial Maryland

His Lordship's Patronage: Offices of Profit in Colonial Maryland

His Lordship's Patronage; Offices of Profit in Colonial Maryland

His Lordship's Patronage; Offices of Profit in Colonial Maryland. By Donnell MacClure Owings. Studies in Maryland History, No. 1. (Baltimore: Maryland Historical Society, 1953. xii + 214 pp. Bibliography and index. $6.00.) Get access Elisha P. Douglass Elisha P. Douglass University of North Carolina Search for other works by this author on: Oxford Academic Google Scholar Journal of American History, Volume 40, Issue 2, September 1953, Pages 322–323, https://doi.org/10.2307/1888934 Published: 01 September 1953

His Lordship's Patronage: Offices of Profit in Colonial Maryland. By Donnell MacClure Owings. (Baltimore: Maryland Historical Society. 1953. Pp. xii, 214.)

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His Lordship's Patronage: Offices of Profit in Colonial Maryland.

His Lordship's Patronage: Offices of Profit in Colonial Maryland.

Libel and Slander: Imputing Ineligibility to Holder of Public Office of Profit

Libel and Slander: Imputing Ineligibility to Holder of Public Office of Profit