Cunninham & Egbert on Emoluments & Originalism

Clark D. Cunningham, Georgia State University College of Law, and Jesse Egbert, Northern Arizona University, have posted Using Empirical Data to Investigate the Original Meaning of "Emolument" in the Constitution which is forthcoming in volume 36 of the Georgia State University Law Review:

The United States Constitution prohibits federal officials from receiving any “present, Emolument, Office or Title” from a foreign state without the consent of Congress. In interpreting the Constitution’s text, we are to be guided “by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning’.” However, in trying to determine the “normal” meaning of emolument in the Founding Era we are confronted with a term that might as well be a foreign word from an unknown language. The word emolument has virtually vanished from contemporary American English.

In this article, we investigate the mysterious meaning of “emolument” by doing computer-assisted searches and linguistic analyses of a massive data base of texts from the time of the Constitution: the Corpus of Founding Era American English (COFEA), which contains in digital form over 95,000 texts created between 1760 and 1799, totaling more than 138,800,000 words. We found strong patterns of usage that reveal how the word was used at the time the Constitution was drafted and ratified.

There is virtually no judicial precedent about the meaning of “emolument” because there has been no significant court litigation over the Emoluments Clauses since the founding – that is until the Presidency of Donald J. Trump.

There is little doubt that President Donald J. Trump owns businesses that have received millions of dollars from foreign governments during his time in office, including revenue from The Trump International Hotel Washington, D.C., located a few blocks from the White House. Lawsuits have been filed in federal courts in New York, Maryland and the District of Columbia claiming that President Trump’s continued ownership of the Trump Hotel and other businesses violates the emolument clauses of the Constitution.

The three cases are in various stages of litigation. President Trump claims in each of the three cases that one usage of “emolument” that was common in the Founding Era – to refer to something received from a government for performance of official duty or employment -- is the exclusive meaning dictated by the Constitutional context.

These cases prompted us to frame our research question as: “Would Americans in the Founding Era have used the word “emolument” to describe revenue derived from ownership of a hotel?” Our research results, indicating that emolument had a broad meaning and wide usage, would support a tentative “yes” answer to this question. Indeed, our research revealed two examples where emolument was in fact used to refer to revenue received (or not received) from ownership interest in a business.

We further conclude that in each of the three clauses in the Constitution that use the word emolument, the structure of each clause indicates that the emoluments are not received for performing an official duty. Indeed, the common theme of all three clauses is to guard against federal officials receiving emoluments that are separate and outside of the compensation they are properly entitled to receive for performing their office.

Although emolument is no longer in the semantic toolbox of modern Americans, it appears that it was a very useful word in the Founding Era: useful indeed precisely in the ways it was used in the Constitution. If the drafters and ratifiers of the Constitution were concerned that foreign states could be endlessly ingenious in conceiving ways to corrupt federal officials, then there was wisdom in using a term of general inclusion like emolument.

In January 2019 the authors filed an amicus brief in support of neither party reporting our research results. The brief was submitted in the case filed against President Trump in Maryland, then pending on appeal before the US Court of Appeals for the Fourth Circuit. The brief can be downloaded from Cunningham’s home page (internet search “Clark Cunningham”) following the links for “Law & Linguistics” and then “The original meaning of "cases" in Article III of the US Constitution.”

–Dan Ernst.  H/t: Legal Theory Blog