Using Empirical Data to Investigate the Original Meaning of "Emolument" in the Constitution.
Clark D. Cunningham
Georgia State University College of Law, cdcunningham@gsu.edu
Jesse Egbert
Northern Arizona University, jesse.egbert@nau.edu
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The United States Constitution prohibits federal officials from receiving any "present, Emolument, Office or Title" from a foreign state without the consent of Congress.1 In interpreting the Constitution's text, we are to be guided "by the principle that '[t]he
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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.'"2 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.3 The word emolument4 has virtually vanished from contemporary American English. The Google Books Ngram Viewer5 shows a steep decline in usage from the 1800s to 2000:6
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A search for either "emolument" or "emoluments" in the Corpus of Historical American English (COHA), a digital database containing more than 400 million words of text from the 1810s-2000s,7 produced only four occurrences since 1990.8
In this article, we investigate the mysterious meaning of emolument by using computer-assisted search and analysis of a massive database of texts from the time of the Constitution and find strong patterns of usage that reveal how the word was used at the time the Constitution was drafted and ratified.
I. Why the Constitution Regulates Receipt of Emoluments
From the outset of the Revolution through the adoption of the Constitution, Americans greatly feared foreign interference in their newborn nation.9 Americans especially worried that their political leaders and government officials might be influenced and manipulated in subtle and hidden ways by the wealthy nations of Europe.10 Thus, while the Revolutionary War was still being waged, the Continental Congress included in the Articles of Confederation the following provision: "nor shall any person holding any office of profit or trust under the [U]nited [S]tates, or any of them, accept any present, emolument, office or title of any kind whatever from any king, prince or foreign state."11
Early drafts of the Constitution considered by the Constitutional Convention in 1787 did not carry over from the Articles of
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Confederation what has come to be known as "the Foreign Emoluments Clause."12 However, on August 23, Charles Pinckney of South Carolina successfully moved13 to add to the Constitution the following provision:
[N]o Person holding any Office of Profit or Trust under them [the United States], 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.14
The Constitution as submitted to the states for ratification also included two other clauses using the term emolument.15 The "Domestic Emoluments Clause" provides:
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be [i]ncreased 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.16
The "Congressional Emoluments Clause" states:
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been [i]ncreased during such time; and no Person holding any
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Office under the United States, shall be a Member of either House during his Continuance in Office.17
At Virginia's ratifying convention, Governor Edmund Randolph offered the most widely cited explanation of the Foreign Emoluments Clause:
[It] restrains any person in office from accepting of any present or emolument, title or office, from any foreign prince or state. . . . This restriction is provided to prevent corruption. . . .
[This] provision [is] against the danger . . . of the President receiving emoluments from foreign powers. If discovered, he may be impeached. . . . I consider, therefore, that he is restrained from receiving any present or emolument whatever. It is impossible to guard better against corruption.18
II. The Current Need to Understand How Emolument Was Used in the Founding Era
Virtually no judicial precedent exists explaining 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 Trump owns businesses that have received millions of dollars from foreign governments during his time
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in office, including revenue from the Trump International Hotel Washington, D.C., located a few blocks from the White House in the renovated Old Post Office building.19
Nine days before the inauguration of President Trump, a white paper was prepared for a January 11, 2017 press conference.20 That white paper, attributed to the law firm of Morgan, Lewis & Bockius, LLP, took the position on behalf of the President that revenue generated from business conducted by foreign governments at the Trump International Hotel or similar enterprises owned by the Trump Organization were not emoluments within the meaning of the Foreign Emoluments Clause:
The scope of any constitutional provision is determined by the original public meaning of the Constitution's text. . . .
[A]n emolument was widely understood at the framing of the Constitution to mean any compensation or privilege associated with an office . . . a payment or other benefit received as a consequence of discharging the duties of an office. 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.21
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A. Three Federal Lawsuits
President Trump's refusal to seek congressional approval for his receipt of revenue from foreign governments through payments to businesses he owns was quickly challenged in three federal lawsuits brought by three very different groups of plaintiffs.22 In each case, the President filed a motion to dismiss challenging standing and for failure to state a claim because emolument did not include the kinds of business-based revenue about which the plaintiffs were complaining.23
The motion to dismiss for lack of standing was granted by the New York district court in Citizens for Responsibility and Ethics in Washington (CREW) v. Trump without reaching the emolument question.24 At the time of writing, the U.S. Court of Appeals for the Second Circuit had just issued a decision reversing the decision on standing.25 If the President asks the U.S. Supreme Court to reverse this decision, the meaning of emolument will not be addressed in the CREW case, unless the Supreme Court denies certiorari or affirms the Second Circuit and remands to the district court.
In the case filed in Maryland, District of Columbia v. Trump, the district court decided both the standing and emolument issues against the President, but the U.S. Court of Appeals for the Fourth Circuit reversed on the standing issue only and ordered that the case be dismissed.26 A petition by Maryland and the District of Columbia for
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en banc review was granted, and oral argument was held December 12, 2019, before the full Fourth Circuit.27
The U.S. District Court for the District of Columbia in Blumenthal v. Trump decided both the standing28 and emolument29 issues against the President. The President's motion for interlocutory appeal on both issues was granted,30 and, on February 7, 2020, a panel of the U.S. Court of Appeals for the D.C. Circuit reversed on the grounds that the congressional plaintiffs lacked standing, without addressing the meaning of emolument.31
B. The Possibility of Impeachment
From the moment of inauguration through the time of writing, the House Oversight and Reform Committee has actively conducted "oversight to protect against violations of the Emoluments Clause" by President Trump.32 House Democrats even took preliminary steps to draft an article of impeachment based on violation of the Foreign and Domestic Emolument Clauses, but that initiative was put on hold in Fall 2019 when House leadership decided that impeachment efforts at that time should focus only on allegations that President Trump attempted to pressure the government of Ukraine to interfere with the 2020 presidential election by announcing an investigation of a leading Democratic candidate for President, former Vice President Joseph Biden.33
We designed our investigation of the original meaning of emolument with the current controversy over President Trump's
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continued ownership of the Trump International Hotel in mind. The following research question thus guided our work: "Is there evidence that Americans in the Founding Era could have used the word emolument to describe revenue derived from ownership of a hotel?" Our research results produced several different findings, each of which provided evidence that Founding Era Americans could have used emolument to describe revenue derived from ownership of a hotel. Using the word in such a way would have been consistent with what we discovered was the broad meaning and wide usage of emolument. Further, our research revealed actual examples where emolument was specifically used to refer to revenue from ownership interest in...
