A Response to Professor Victoria F. Nourse’s Reclaiming the Constitutional Text from Originalism: The Case of the Foreign Emoluments Clause
43 Pages Posted: 21 Feb 2018 Last revised: 29 Oct 2018
Date Written: February 18, 2018
This paper is a response to Professor Victoria F. Nourse’s Reclaiming the Constitutional Text from Originalism.
Dean Erwin Chemerinsky has stated that the position that the President is not covered by the Foreign Emoluments Clause is “a silly argument.” Professor Nourse has stated that that position “verg[es]-on-silly.” Although I think that both the Dean and Professor are incorrect, and that both display an inability to thoughtfully comment on ideas with which they disagree (or fail to understand) — quite an unappetizing state of affairs for academics — between the two, Dean Chemerinsky and Professor Nourse, I strongly prefer the former. The Dean, at least, is saying exactly what he means. I suspect Nourse’s use of “verging” is not quite what she actually meant, and if it is what she meant, more is the pity.
Either way, I think they are both wrong. Here is why.
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