Thursday, January 5, 2017
But in one corner of academia, a different take has emerged: Trump can’t violate the Emoluments Clause because the clause doesn’t apply to presidents. According to this hypothesis, the Framers excluded the president from the Emoluments Clause. They failed to inform the public of this fact for unknown reasons. Indeed, the Framers’ true intention remained mostly concealed for centuries, even as president after president rejected foreign gifts as unconstitutional emoluments. The real meaning of the Emoluments Clause, this theory concludes, stayed largely shrouded in the mists until the 21st century, when Seth Barrett Tillman, a law professor in Ireland, revealed it to the world.
Tillman is a fine constitutional scholar and should be at a top law school. He is not, as far as I can tell, because he's an originalist and an observant Jew. It's the "observant" part that kills him, of course.