Wednesday, January 18, 2017

A Note on the Original Meaning of "Emolument"

John Mikhail

In connection with last week’s press conference, Donald Trump’s lawyers have published a white paper on presidential conflicts of interest.  With respect to the Foreign Emoluments Clause, the authors make at least three noteworthy claims.

First, endorsing originalism, they maintain that “the scope of any constitutional provision is determined by the original public meaning of the Constitution’s text.  Here that text, understood through historical evidence, establishes that foreign governments’ business at a Trump International Hotel or similar enterprises is not a ‘present, Emolument, Office, or Title.’”

As Michael Ramsey notes, this embrace of originalism as the only suitable and definitive mode of constitutional analysis is a surprising and perhaps ill-advised posture for Trump's lawyers to adopt in these circumstances.  It is probably best understood as ideological in the sense Professor Ramsey identifies.

Second, Trump's lawyers assert that “an emolument was widely understood at the framing of the Constitution to mean any compensation or privilege associated with an office—then, as today, an ‘emolument’ in legal usage was a payment or other benefit received as a consequence of discharging the duties of an office” (original emphasis).  Drawing out the implications of this assertion, the authors write: “Emoluments did not encompass all payments of any kind from any source, and would not have included revenues from providing standard hotel services to guests, as these services do not amount to the performance of an office, and therefore do not occur as a consequence of discharging the duties of an office.”

Third, and relatedly, the authors contend that the original meaning of “emolument” did not include ordinary "fair-market-value transactions," such as buying or receiving interest payments on government bonds.

To support these claims about original meaning, the white paper relies on three Attorney General opinions from 1819, 1831, and 1854; one failed constitutional amendment from 1810; one obscure Supreme Court decision from 1850; and a handful of more recent comptroller general and OLC opinions, primarily from the 1960s, 1970s, and 1980s.  The only eighteenth century source it provides to substantiate the claim that “an emolument was widely understood at the framing . . . to mean any compensation or privilege associated with an office” is The Federalist

The citations to The Federalist supplied by Trump’s lawyers, however, are inadequate to the required task.  Here are the passages on which they appear to rely:

Federalist 1 (Hamilton)
“Among the most formidable of the obstacles which the new constitution will have to encounter, may readily be distinguished the obvious interest of a certain class of men in every state to resist all changes which may hazard a diminution of the power, emolument and consequence of the offices they hold under the state establishments.”

Federalist 36 (Hamilton)
“If such a spirit should infest the councils of the union, the most certain road to the accomplishment of its aim would be, to employ the state officers as much as possible, and to attach them to the union by an accumulation of their emoluments.”

Federalist 46 (Madison)
“Many considerations . . . seem to place it beyond doubt, that the first and most natural attachment of the people, will be to the governments of their respective states. Into the administration of these, a greater number of individuals will expect to rise. From the gift of these, a greater number of offices and emoluments will flow.”

Federalist 51 (Madison)
“It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other, would be merely nominal.”

Federalist 65 (Hamilton)
“[T]he punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law.”

Federalist 73 (Hamilton)
“The legislature, with a discretionary power over the salary and emoluments of the chief magistrate, could render him as obsequious to their will, as they might think proper to make him…. It is not easy, therefore, to commend too highly the judicious attention which has been paid to this subject in the proposed constitution. It is there provided, that “the president of the United States shall, at stated times, receive for his service a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.” It is impossible to imagine any provision which would have been more eligible than this….Neither the union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act.”

Although these passages clearly indicate that “emolument” was sometimes used to refer to salary or other benefits associated with discharging the duties of an office, that finding is insufficient to prove the precise point at issue, at least as it is framed by Trump's lawyers.  That question is not whether “emolument” could have been used in this restricted fashion, but whether it must have been -- whether, in other words, "salary or benefits associated with an office" was somehow built into the very definition or semantic content of "emolument" at the time.  

None of the foregoing passages, however, entails or even strongly implies that the original meaning of “emolument” must necessarily exclude a wider category of payments or benefits, which might cause the Trump Organization’s businesses to violate the Foreign Emoluments Clause.  Furthermore, there is ample evidence that “emolument” was often used at the founding in a much wider sense, one that went beyond the duties of an office and encompassed the fruits of ordinary market transactions.

Consider these examples:

1.      In response to the Townshend Acts, many American colonists formed nonimportation associations, which pledged not to purchase British goods until their grievances were met.  In 1770, one such group in Virginia sought to retaliate against local merchants who refused to join the boycott.  Denouncing these holdouts, George Washington, Thomas Jefferson, and other Virginians professed that they would “avoid purchasing any commodity or article of goods whatsoever from any importer or seller of British merchandise or European goods, whom we may know or believe . . . to have preferred their own private emolument, by importing or selling articles prohibited by this association, to the destruction of the dearest rights of the people of this colony.”

2.      During the Revolutionary War, the New York Committee of Safety prohibited merchants from selling goods to British warships and enlisted George Washington’s help in enforcing this ban.  In response, General Washington issued a proclamation condemning those “sundry base and wicked Persons, preferring their own, present private Emolument to their Country’s Weal, [who] have continued to carry on” the proscribed trade, and announcing they would be punished accordingly. 

3.      In the spring of 1786, James Madison and James Monroe purchased nine hundred acres along the Mohawk River in upstate New York, near the site where the Treaty of Fort Stanwix was signed.  Shortly thereafter, Madison invited Jefferson to join them in an even larger purchase.  The terms of Madison’s proposal called for Jefferson to borrow “four or five thousand louis” (i.e., French coins) “on the obligation of Monroe and myself, with your suretyship to be laid out by Monroe and myself for our triple emolument: an interest not exceeding six per cent to be paid annually and the principal within a term not less than eight or ten years.” 

Manifestly, the emoluments to which Washington, Jefferson, and Madison referred on these occasions were not “payments or other benefits received as a consequence of discharging the duties of an office.”  Instead, they were the consequences of ordinary business dealings.

These illustrations are just the tip of the iceberg.  The Founders Online web site alone contains over 1500 occurrences of “emolument” in the papers of the six most prominent founders.  Other easily searchable databases—Early American Imprints, HathiTrust, HeinOnline, and others—contain thousands more.  Many of these uses of “emolument” involve payments or benefits associated with the duties of an office, but many others do not.  Here are some other highly salient examples, all of which directly contradict the historical claims advanced by Trump’s lawyers:

“These devoted Colonies were judged to be in such a state, as to present victories without bloodshed, and all the easy emoluments of statuteable plunder.”

“It deserves to be remarked here, that those very persons in Great Britain, who are in so mean a situation, as to be excluded from a part in elections, are in more eligible circumstances, than [we] should be in, who have every necessary qualification.  They compose a part of that society, to whose government they are subject. They are nourished and maintained by it, and partake in every other emolument, for which they are qualified….”

“If a clergyman preaches against the principles of the revolution . . . the Tories cry him up as an excellent man. . . . But if a clergyman . . . tells the magistrates that they were not distinguished from their brethren for their private emolument, but for the good of the people, that the people are bound in conscience to obey a good government, but are not bound to submit to one that aims at destroying all the ends of government— Oh Sedition! Treason!”

“That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services….”

“That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family, or set of men, who are a part only of that community.”

“The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for: and there shall be no suspension of any law for the private interest, advantage, or emolument, of any one man or class of men.”

Do quotations like these settle the matter of how the Foreign Emoluments Clause was understood by the founders?  Clearly not; insofar as one seeks to answer this question, what is needed is a much more thorough investigation of the relevant sources.  And whether the original meaning should control how the Constitution is applied today is itself, of course, a complex normative and practical question, with many competing considerations.

Examples like these and the vast, untapped databases to which I have drawn attention, however, do cast serious doubt on the constitutional arguments made by Trump’s lawyers in their white paper.  

As other commentators have emphasized, a critical feature of the Foreign Emoluments Clause is that, by its very terms, it reaches “any . . . Emolument . . . of any kind whatever, from any King, Prince, or foreign State.”  

Because the founding generation recognized a wide range of emoluments—including various forms of “private emolument”—and ratified such a broadly worded prohibition, a heavy burden of proof would seem to fall on those who would categorically exclude The Trump Organization’s commercial relationships with foreign governments or their agents from its scope.  This is particularly true for those who, like Trump's lawyers, seek to do so on "textual and historical" grounds.

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