They cite Article I, Section 9, of the Constitution: "No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, 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."
Why do they think this section applies? Rotunda and Pham assert that because "(t)he five-member Nobel commission is elected by the Storting, the parliament of Norway ...the award of the peace prize is made by a body representing the legislature of a sovereign foreign state."
Can that be right? It's true that the members of the Nobel Committee are elected by the Storting for six-year terms. They may be reappointed to any number of consecutive terms (one member has served continuously since 1994). It is also true that the Committee's composition reflects the political makeup of the Storting.
This raises three questions: first, why is the Storting involved at all? Second, does the Nobel Committee therefore represent the Storting -- is it an instrumentality of a foreign government? And third, if it is, what must Obama do to accept the prize?
To answer those questions, we turn first to the Last Will and Testament of Alfred Bernhard Nobel. He writes that recipients of the prize "for champions of peace [shall be selected] by a committee of five persons to be elected by the Norwegian Storting. It is my express wish that in awarding the prizes no consideration whatever shall be given to the nationality of the candidates, but that the most worthy shall receive the prize, whether he be Scandinavian or not."
You may wonder why Nobel, who was Swedish, designated Norway to award the Peace Prize. The answer appears to be that during Nobel's lifetime, Sweden and Norway were united under one crown. The other four prizes are awarded in Sweden.
The Storting is involved at all because that was Alfred Nobel's wish and not to achieve any particular political or governmental aim. Further, it seems clear to me that the Nobel Committee, in selecting recipients of the Nobel Peace Prize, represents not the Storting but the Nobel Institute and the Nobel trust fund -- a private fund created by the Will of Alfred Nobel and capitalized by his personal fortune. Although the Committee is elected by the Storting, it is not an instrumentality of the Storting. The Committee is free to select whoever it deems worthy of the Prize.
(As a parallel, I may be a member of the Democratic Party but I am not an instrumentality of it. I am free to think, act, and vote as I see fit.)
Whether the Nobel Committee represents the government of Norway is key to understanding whether the Prize's $1.4 million cash award is an 'emolument' from a "King, Prince or foreign State" and is thus prohibited by the Constitution. Rotunda and Pham believe it is. If it were, then Obama probably would have to obtain the consent of Congress before accepting the Prize. He would also be obliged to turn the cash award over to the Treasury.
While Obama has pledged to give the prize money to charity, Rotunda and Pham point out that the gift would still leave him with a sizeable personal income tax deduction. That would never do if the money were sourced to a "King, Prince, or foreign State."
Rotunda and Pham also point out that although other sitting presidents (T. Roosevelt and Wilson) have received the Nobel Peace Prize (thus establishing the precedents for Obama to accept it, it would seem), those Prizes recognized past accomplishments. Obama's Prize, they say, is intended to influence his future actions.
To test the validity of this assertion, I ask myself, "If the president were incapacitated and unable to serve the rest of his term, would he still be worthy of the 2009 Nobel Peace Prize?" I believe the answer is, "Yes": he still would be worthy of the Prize even if only his record of advocacy for peace since he announced his candidacy were considered.
Obama has used his presidency -- the bulliest of pulpits -- to reach out to the world in peace in an unprecedented fashion. He has been, in the exact words of Nobel's Will, a "champion of peace." Selection of Barack Obama for the 2009 Peace Prize thus seems entirely consistent with Alfred Nobel's intentions when he created and endowed the Prize.
(Now Obama just has to wrap up the two Bush-initiated wars he inherited. How, when, and with what effect he does that are subjects for other writers in other articles.)
All this raises just one other nagging question. A debate over the scope and interpretation of Article I, Section 9 might be suitable for first-year law students but what moves such august scholars as Ronald D. Rotunda and J. Peter Pham to draw a bead on the question? Could there be some political method to their madness?