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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. Posted 1:15 PM by John Mikhail [link]
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