Wednesday, January 25, 2017

Other uses of "emolument" in The Federalist (and the fallacy of affirming the consequent)

John Mikhail

In my last post, I drew attention to the fact that the Morgan Lewis white paper on conflicts of interest fails to supply any convincing evidence for its originalist thesis that “an emolument was widely understood at the framing of the Constitution to mean any compensation or privilege associated with an office” (emphasis original). 

On the basis of footnote 12, which reads “See, e.g., The Federalist 2, 177, 243, 268, 340, 379-80 (G. Carey & J. McClellan eds., 2001),” I identified six Federalist papers on which the white paper relies: Numbers 1, 36, 46, 51, 65, and 73.  Examining these essays, I found that their uses of “emolument” fall short of establishing the “original public meaning” to which the white paper appeals.  Yet the signal “See, e.g.” indicates that there may be other passages in The Federalist that support this originalist claim.  Are there such passages, and, if so, what do they say?

The edition of The Federalist to which Trump’s lawyers refer is the Liberty Fund reprint of the 1818 Gideon edition.  By searching the Liberty Fund’s free PDF of this volume, one can easily locate every occurrence of “emolument” in The Federalist.  This exercise yields six additional essays in which this term is used: Numbers 55, 59, 72, 76, 77, and 84.

The relevant excerpts are given below, after the jump.  Once again, none of them entails or even strongly implies that “emolument” was a precise or technical term at the founding, the meaning of which was restricted to payments or benefits associated with fulfilling the duties of an office.

To be sure, several of these passages do indicate that office-related payments or benefits were characterized as emoluments.  It is the converse of that proposition, however, which Donald Trump needs to establish for his originalist argument to succeed.  The form of that argument is not “All office-related payments or benefits are emoluments” but rather “All emoluments are office-related payments or benefits.”  To assume that these propositions are logically equivalent is to commit the fallacy of affirming the consequent.   And to assert that the latter proposition is true as a matter of original meaning is to say something empirically false, as even a cursory look at a fraction of the pertinent evidence illustrates.

* * * * * *

Here are the remaining Federalist papers in which “emolument” appears:

Federalist 55 (Madison)
“Is the danger apprehended from the other branches of the federal government? But where are the means to be found by the president or the senate, or both? Their emoluments of office, it is to be presumed, will not, and without a previous corruption of the house of representatives cannot, more than suffice for very different purposes: their private fortunes, as they must all be American citizens, cannot possibly be sources of danger. . . . The members of the congress are rendered ineligible to any civil offices, that may be created, or of which the emoluments may be increased, during the term of their election.”

Federalist 59 (Hamilton)
“The scheme of separate confederacies, which will always multiply the chances of ambition, will be a never failing bait to all such influential characters in the state administrations, as are capable of preferring their own emolument and advancement to the public weal.”

Federalist 72 (Hamilton)
“An avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the advantages he enjoyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of his opportunities, while they lasted; and might not scruple to have recourse to the most corrupt expedients to make the harvest as abundant as it was transitory; though the same person probably, with a different prospect before him, might content himself with the regular emoluments of his station, and might even be unwilling to risk the consequences of an abuse of his opportunities.”

Federalist 76 (Hamilton)
“The constitution has provided some important guards against the danger of executive influence upon the legislative body: it declares, ‘that no senator or representative shall, during the time for which he was elected, be appointed to any civil office under the United States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the United States, shall be a member of either house during his continuance in office.’”

Federalist 77 (Hamilton)
“How could the senate confer a benefit upon the president by the manner of employing their right of negative upon his nominations? If it be said they might sometimes gratify him by an acquiescence in a favourite choice, when public motives might dictate a different conduct; I answer, that the instances in which the president could be personally interested in the result, would be too few to admit of his being materially affected by the compliances of the senate. Besides this, it is evident, that the power which can originate the disposition of honours and emoluments, is more likely to attract than to be attracted by the power which can merely obstruct their course.”

Federalist 84 (Hamilton)

“The most considerable of the remaining objections is, that the plan of the convention contains no bill of rights. . . . To [this] I answer, that the constitution offered by the convention contains, as well as the constitution of this state, a number of such provisions. Independent of those which relate to the structure of the government, we find the following: . . . ‘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.’”

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