Using Empirical Data to Investigate the Original Meaning of “Emolument” in the Constitution
36 Georgia State Law Review       (forthcoming January 2020)
Published on the Social Science Research Network at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3460735

Clark D. Cunningham
W. Lee Burge Chair in Law & Ethics,
Georgia State University College of Law
cdcunningham@gsu.edu  
www.clarkcunningham.org

Jesse Egbert
Associate Professor
Applied Linguistics
Northern Arizona University
jesse.egbert@nau.edu  
http://oak.ucc.nau.edu/jae89/

Abstract:

The United States Constitution prohibits federal officials from receiving any “present, Emolument, Office or Title” from a foreign state without the consent of Congress.  In interpreting the Constitution’s text, we are to be guided “by the principle that ‘[t]he 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’.”   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.  The word emolument has virtually vanished from contemporary American English. 

In this article, we investigate the mysterious meaning of “emolument” by doing computer-assisted searches and linguistic analyses of a massive database of texts from the time of the Constitution:  the Corpus of Founding Era American English (COFEA), which contains in digital form over 95,000 texts created between 1760 and 1799, totaling more than 138,800,000 words. We found strong patterns of usage that reveal how the word was used at the time the Constitution was drafted and ratified.

There is virtually no judicial precedent about 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 Donald J. Trump owns businesses that have received millions of dollars from foreign governments during his time in office, including revenue from The Trump International Hotel Washington, D.C., located a few blocks from the White House. Lawsuits have been filed in federal courts in New York, Maryland and the District of Columbia claiming that President Trump’s continued ownership of the Trump Hotel and other businesses violates the emolument clauses of the Constitution.

The three cases are in various stages of litigation. President Trump claims in each of the three cases that one usage of “emolument” that was common in the Founding Era – to refer to something received from a government for performance of official duty or employment -- is the exclusive meaning dictated by the Constitutional context.

These cases prompted us to frame our research question as: “Is there evidence that Americans in the Founding Era could have used the word “emolument” to describe revenue derived from ownership of a hotel?” The research findings do provide 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 has been shown to be the broad meaning and wide usage of emolument.

We further conclude that in each of the three clauses in the Constitution that use the word emolument, the structure of each clause indicates that the emoluments are not received for performing an official duty. Indeed, the common theme of all three clauses is to guard against federal officials receiving emoluments that are separate and outside of the compensation they are properly entitled to receive for performing their office.

Although emolument is no longer in the vocabulary of modern Americans, it appears that it was a very useful word in the Founding Era: useful indeed precisely in the ways it was used in the Constitution.  If the drafters and ratifiers of the Constitution were concerned that foreign states could be endlessly ingenious in conceiving ways to corrupt federal officials, then there was wisdom in using a term of general inclusion like emolument.

The research described in this article was submitted to the U.S. Court of Appeals for the 4th Circuit on January 29, 2019, as a friend of the court (amicus) brief in support of neither party, in the case of In Re Trump, Case No. 18-2486 [appeal from District of Columbia v Trump, 315 F.Supp.3d 875 (D.Md. 2018)].
Download amicus brief as pdf.
The authors' research was subsequently discussed in briefs before the 4th Circuit filed by the plaintiffs (State of Maryland, District of Columbia), the US Department of Justice on behalf of the President Trump sued in his official capacity, and by Donald Trump, sued in his personal capacity. Oral argument was held on March 19, 2019. On July 10, 2019, the 4th Circuit court of appeals issued a decision reversing the district court on the issue of standing and ordered the case to be dismissed without addressing the motion to dismiss on the grounds that revenue from the Trump Hotel was not an "emolument" within the meaning of the Constitution. In re Trump, 928 F.3d 360 (4th Cir. 2019) (petition for rehearing en banc pending).

Media coverage of Cunningham & Egbert amicus brief on original meaning of "emolument"
Law Journal Editorial Board, On Language, Lawyers and Judges Don't Have All the Answers (March 22, 2019)
Aaron Blake, A big Trump case hinges on the definition of ‘emoluments.’ A new study has bad news for him (Washington Post Jan 29, 2019)
Amelia Thomson-DeVeaux, How Two Arcane Clauses In The Constitution Could Expose Trump’s Businesses  (FiveThirtyEight    March 18, 2019)
Elie Mystal, Emoluments Amicus Fitting To Turn Originalists Into Hypocrites, Again (Above the Law  Jan 29, 2019)

Appendix

Result of searching for "emolument*" in the Corpus of Historical American English
Chart listing 24 examples of “profit” and/or “emolument”
Chart listing all 70 cases of “other emolument”
Chart of all 137 cases of “emolument” with “receive”
Chart of all 12 cases of “emolument” with “accept”
Chart of all 11 cases of unmodified “emolument” with receive/accept

Original Texts:
Example 1: Alexander Hamilton to John Davidson, 13 April 1793. 14 THE PAPERS OF ALEXANDER HAMILTON (Harold C. Syrett 1969), available at https://founders.archives.gov/documents/Hamilton/01-14-02-0208
Example 2: Appendix to the History of Congress, 8 Annals of Cong. 1569-1570 (1798-1799)
Example 3: Appendix to the History of the Fifth Congress, 9 Annals of Cong. 3914 (1798-1799)
Example 4: Form of Commission to Deputy Attorney Generals(1779) 3 THE PAPERS OF THOMAS JEFFERSON 21 (Julian P. Boyd ed. 1951), available at https://founders.archives.gov/documents/Jefferson/01-03-02-0025
Example 5: Reply to Vindex Patriae on American Representation in Parliament, THE GAZETTEER (Jan 29, 1776), 13 THE PAPERS OF BENJAMIN FRANKLIN 63-66
(Leonard W. Labaree ed. 1969), available at https://founders.archives.gov/documents/Franklin/01-13-02-0022
Example 6: To George Washington from William Mumford, 9 May 1789, May 9th, 1789, 2 THE PAPERS OF GEORGE WASHINGTON 240-242 (Dorothy Twohig ed.1987), available at https://founders.archives.gov/documents/Washington/05-02-02-0179
Example 7: 20 JOURNALS OF THE CONTINENTAL CONGRESS 766 (1781)
Example 8: 9 JOURNALS OF THE CONTINENTAL CONGRESS 986-987 (1777)
Example 9: 15 JOURNALS OF THE CONTINENTAL CONGRESS 1307 (1779)
Example 10: Leonard Cooper to Virginia Delegates, 22 June 1781, 3 THE PAPERS OF JAMES MADISON 166-167 (William T. Hutchinson & William M. E. Rachal eds. 1963), available at
https://founders.archives.gov/documents/Madison/01-03-02-0085
Example 11: To Thomas Jefferson from George Muter, 6 March 1781, 5 THE PAPERS OF THOMAS JEFFERSON 78-80 (Julian P. Boyd ed. 1952), available at https://founders.archives.gov/documents/Jefferson/01-05-02-0103
Example 12: 29 JOURNALS OF THE CONTINENTAL CONGRESS 635 (1785)
Example 13: George Friedrich von Martens, SUMMARY OF THE LAW OF NATIONS (Philadelphia 1795) (original text image not available)
Example 14: From George Washington to John Adams, July 13, 1798, 2 THE PAPERS OF GEORGE WASHINGTON, RETIREMENT SERIES 402-404 (W. W. Abbot ed.
1998), available at https://founders.archives.gov/documents/Washington/06-02-02-0314
Example 15: Pelatiah Webster, POLITICAL ESSAYS ON THE NATURE AND OPERATION OF MONEY, PUBLIC FINANCES, AND OTHER SUBJECTS: PUBLISHED DURING THE
AMERICAN WAR, AND CONTINUED UP TO THE PRESENT YEAR, 1791 (original text image not available)
Example 16: To George Washington from Alexander Hamilton, March 1, 1782, 3 THE PAPERS OF ALEXANDER HAMILTON 5-6 (Harold C. Syrett ed. 1962), available
at https://founders.archives.gov/documents/Hamilton/01-03-02-0006
Example 17: 29 JOURNALS OF THE CONTINENTAL CONGRESS 635 (1785)
Example 18: To Alexander Hamilton from William Ellery, July 18, 1791, 8 THE PAPERS OF ALEXANDER HAMILTON 553-554 (Harold C. Syrett ed. 1965), available at
https://founders.archives.gov/documents/Hamilton/01-08-02-0501
Example 19: James Smith to the Commissioners, August 24, 1778, 6 THE ADAMS PAPERS, PAPERS OF JOHN ADAMS 389-392 (Robert J. Taylor ed. 1983), available at https://founders.archives.gov/documents/Adams/06-06-02-0299
Example 20:To George Washington from James McHenry, March 31, 1799, 3 THE PAPERS OF GEORGE WASHINGTON, RETIREMENT SERIES 453-458 (W. W.Abbot and Edward G. Lengel. eds. 1999), available at https://founders.archives.gov/documents/Washington/06-03-02-0345
Example 21: Prospectus of the Society for Establishing Useful Manufactures (Philadelphia, Aug. 1791), 9 THE PAPERS OF ALEXANDER HAMILTON 144-53
(Harold C. Syrett, ed., 1965), available at https://founders.archives.gov/documents/Hamilton/01-09-02-0114   
Example 22: [General] Nathanael Greene to His Excellency The President of Congress (Newport, Aug. 22, 1785), 10 THE PAPERS OF ALEXANDER HAMILTON 421- 28 (Harold C. Syrett, ed., 1966) https://founders.archives.gov/documents/Hamilton/01-10-02-0060-0002
Example 23: War Office Report (Aug. 30, 1783), Journals of the Continental Congress 533-34 (1783) ("gratuity or other emolument")

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