The Originalism Blog: An Exchange with Professor Michael Ramsey on the Unitary Executive

Abstract

Prior to the 2012 election, Professor Michael Ramsey and Seth Barrett Tillman had an exchange on the unitary executive theory on The Originalism Blog.

The prevailing view is that the Constitution's Foreign Emoluments Clause and its "office ... under the United States" language covers the presidency and vice presidency. However, Tillman points out that George Washington, while President, accepted gifts from foreign government functionaries. He accepted them; kept them; and never asked for congressional consent. Based on these events, and also on correspondence from Hamilton to the Senate, Tillman concludes that the Constitution's "office ... under the United States" language reaches (as a matter of original public meaning) only appointed officers, not elected officials.

Moreover, rejecting the Hamilton/Washington understanding of the Constitution's "office ... under the United States" language is tantamount to rejecting Hamilton's and Washington's conduct as a guide to understanding the Constitution's original public meaning. In these particular circumstances -- where Washington's conduct goes to his personal honor and morality -- rejecting Washington's position has global consequences across the Constitution. It means that we cannot rely on Washington's to confirm the unitary executive hypothesis.

Professor Ramsey disagrees, and distinguished using Washington's conduct to confirm the unitary executive, from using Washington's conduct to overcome the prevailing view of the Foreign Emoluments Clause.