New Article: The President is not Violating the Foreign Emoluments Clause

After a year of delays,* an article on how the Constitution uses the word “emoluments” has finally appeared. The study indirectly absolves President Trump of claims that he is violating the Constitution by receiving profits from enterprises whose customers include foreign governments.

The article is called The Original Meaning of “Emoluments” in the Constitution, and it was published by Georgia Law Review. It was the result of impartial research: Unlike most articles of the type, it was not designed to serve as a brief for or against a particular political or litigation position.

The article reports that during the Founding Era, the word “emolument” carried several different meanings—some wider, some narrower. The wider meanings included business profits and the narrower meanings did not.  To determine which usage the Constitution adopts, the article examines the text and the surrounding history.

The surrounding history includes proceedings in the Continental and Confederation Congress, how the word “emolument” was used in other important American documents (such as state constitutions), and the debates over the Constitution. Perhaps most importantly, the surrounding history included a massive then-current reform movement in both Britain and America. The reform movement was designed to shift public employee compensation away from certain fees and other fringe benefits and toward fixed salaries. The Constitution’s three anti-emoluments provisions all are typical of such reforms, which targeted almost entirely fees and other fringe benefits, not unrelated profits from outside enterprises.

You can access the article here.

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* Delays of this kind are associated generally with law reviews (legal journals). The reasons and effects will be topics of a future article.

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