Liam Cronan, the holder of a JD and MA in history from Boston University, has posted “In Defiance of Gifts”: The Dutch Origins of the Foreign Emoluments Clause:
If any lessons have emerged from the intersection of law and politics over the past half-decade, it is that the problems with and accusations of corruption—and the question of what precisely corruption means under the law—are now a mainstay of American political life. Examples are rife on both sides of the political aisle, from former President Trump’s international business dealings to the Biden Family’s connections in Ukraine to recent corruption charges against U.S. Senator Bob Menendez. This paper intends to employ the first of these, former President Trump’s business dealings, as a lens through which to understand corruption as a constitutional issue—and more specifically, the constitutional problem of foreign emoluments.--Dan Ernst
In 2017, the United States District Court for the Southern District of New York interpreted a clause in the Constitution that had, until then, been relegated among the Constitution’s “odd clauses:” Article I, Section 8, Clause 9 and its “Foreign Emoluments Clause” provision. Because of a clear “lack of precedent” on this matter, federal courts soon parsed law review articles, the Federalist Papers, letters from figures such as George Washington and James Madison, and the records of the Constitutional Convention to determine the Clause’s proper application, emphasizing the importance of “looking to historical practices” to “determine the original meaning” of the Clause. Their attempts resulted in a subtle split among circuits and left open a series of questions about the Clause’s meaning. But one source of original meaning, yet unmentioned in any case law, may aid in answering these: seventeenth-century Dutch law.
While many sources have since noted that Dutch law is the “likely” or “apparent” origin of the Clause, no scholarship has attempted to prove this through any serious interrogation of primary source materials. This paper is the first to do so. This paper traces an idea—that government officers may be barred from accepting gifts—from the Constitution we know today to the letters, speeches, and writings of the Framers to Dutch jurisprudence and the 1651 Dutch law itself. It will explore how the Framers first discovered this legal concept and how it can again function as a critical source of understanding for the Clause.
