[Eugene Volokh, June 29, 2009 at 3:36pm] Trackbacks
The Resultative Perfect

makes its appearance in this linguists' amicus memorandum filed in Rodearmel v. Clinton, the Ineligibility Clause (a k a Emoluments Clause) case.

The question, as you may recall, is this: Does "the Emoluments whereof shall have been encreased during such time" refer to a salary having been increased on balance during a time ("the Time for which [Senator Clinton] was elected")? Does it refer to the salary having been increased at least once even if it was later decreased? Or is the phrase ambiguous, as the linguists suggest?

Related Posts (on one page):

  1. The Resultative Perfect
  2. New Justice Department Opinion on the Ineligibility Clause (Sometimes Also Called the Emoluments Clause):
  3. Judicial Watch Sues Over Hillary Clinton and the Emoluments Clause:
  4. The Saxbe Fix Is In,
  5. Why Isn't Vice-President-Elect Biden Affected by the Emoluments Clause?
  6. More on Hillary Clinton and the Emoluments Clause:
  7. Hillary Clinton and the Emoluments Clause:
Paul Allen:
Not particularly compelling. Their examples of the resultant perfect are not clean or are arguably not 'resultant perfect' at all.

For instance they cite, "Plaintiff has remained true to his oath throughout "his career" "and Plaintiff has been a commissioned U.S Foreign Service Officer in the U.S
Department of State since 1991" (emphasis mine). Both examples include important modifying clauses.

Their other examples fail to depend on a 'resultant perfect' interpretative scheme. They read correctly under the 'experiential perfect' just fine.

Indeed, I learned in school that such a phrase means that the activity may be ongoing. Thus a prohibition against it may or may not have an ongoing requirement. This seems like a question of logic. The linguists fail. Their argument reduces to: NOT (a or b) can be treated as NOT b. This is wrong.
6.29.2009 4:04pm
Jon Roland (mail) (www):
I don't find the Emoluments caluse ambiguous, based on familiarity with the Founders and their thinking, as expressed in their writings. They weren't interested in historical facts that had no present consequences. They wanted to avoid having a member of Congress help increase the emoluments of an office, by being in Congress when the increase was enacted, and then benefit from the increase by assuming the office. It was an attempt to prevent corruption of a kind that had been somewhat common in the British Parliament, and also to eliminate an incentive for Congress to raise salaries for officials.

It was not considered sufficient to have voted against the increase. There was already plenty of historical precedent for trading votes so one could vote against an increase knowing enough of one's colleagues would vote for it.

I wouldn't mind having Clinton out as the Sec. of State, partly because I don't see her as particularly well qualified for that job, but reducing the emoluments of that position before she assumed it works as a fix.

There are plenty of constitutional violations that have not been fixed that deserve more attention.
6.29.2009 4:24pm
troll_dc2 (mail):
I'd go with the bottom line here. Having her serve at the reduced salary honors the intent of the clause, which is to prevent a legislator from benefiting from a pay increase in the new job.
6.29.2009 4:48pm
SamW:
What kind of people become linguists? ;)
6.29.2009 5:03pm
Gabriel McCall (mail):
<i>Having her serve at the reduced salary honors the intent of the clause, which is to prevent a legislator from benefiting from a pay increase in the new job.
</i>

Might there not have been an additional intent of the clause, which would have been to generally discourage Congress from raising high-ranking civil service salaries any more than absolutely necessary? The Saxbe fix doesn't serve that aim.

With that said, though, the resultative reading makes sense to me... and I believe that's the conclusion we came to the last time this case was discussed here, that because the phrasing is in a perfect tense rather than simple past, it implies an ongoing effect rather than a mere event of increase.
6.29.2009 5:37pm
Jon A.:
Gabriel McCall wrote:

I believe that's the conclusion we came to the last time this case was discussed here, that because the phrasing is in a perfect tense rather than simple past, it implies an ongoing effect rather than a mere event of increase.
Missed opportunity! "Brief by amici - consensus position of commenters at the VC" :P
6.29.2009 10:42pm

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