There’s been much talk recently about the foreign emoluments clause, and probably someone has made the following point, but I’ve not seen it. The clause provides:
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.
I assume for purposes of this post that the clause applies to the President (although, as noted here, Seth Barrett Tillman makes a strong textualist/originalist argument to the contrary). Applied to President-elect Trump, I assume Trump will not accept any “Office, or Title”; “present[s]” can be dealt with individually and in any event wouldn’t encompass his business dealings as a whole. So the key word is “Emolument.”
The modern definition of emolument does not seem to cover anything we should reasonably worry about Trump receiving. Merriam-Webster’s Dictionary, for example, defines emolument as “the returns arising from office or employment usually in the form of compensation or perquisites.” Dictionary.com has it as “profit, salary, or fees from office or employment; compensation for services.” The Oxford English Dictionary similarly defines emolument as “A salary, fee, or profit from employment or office.” (And these definitions are consistent with the way “emolument[s]” is used elsewhere in the Constitution, where it could mean simply salary or other payment for employment.) If that’s the right constitutional definition, I don’t see what the fuss is about. Trump’s business dealings, whatever they may be, don’t amount to compensation for employment.
It’s often said, however, that words can change their meanings over time, and this may be an example. Samuel Johnson’s Dictionary (1755) defines “emolument” much more broadly as “Profit; advantage.” (And indeed, the modern Merriam-Webster entry linked above gives an “archaic” definition of emolument as “advantage.”)
Regardless of what other eighteenth-century dictionaries say (I haven’t done an extensive search), the broad definition in Johnson’s work seems enough to raise an inference of a broad use in the foreign emoluments clause — especially since, as a policy matter, it might seem odd to limit the prohibition to gifts and salaries, and the subsequent phrase “of any kind whatever” indicates that in choosing between a narrow and broad meaning, one should choose the broad one. On this reading, Trump’s business dealings might well include “advantages” obtained from foreign states.
So perhaps Trump will need to rely on Professor Tillman’s argument after all. But I also like the fact that Trump’s opponents will need to rely on an eighteenth century dictionary.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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