John Mikhail (Georgetown University Law Center) has posted The 2018 Seegers Lecture: Emoluments and President Trump (Valparaiso University Law Review, forthcoming) (56 pages) on SSRN. Here is the abstract:
The topic for my 2018 Seegers Lecture at Valparaiso University Law School was the original meaning of “emolument” and its implications for President Trump. In this revised and expanded version of my spoken remarks, I begin by discussing the Constitution’s Emoluments Clauses and describing the three emoluments lawsuits against the president that are currently winding their way through the federal courts. I then highlight one of the main points of contention in these lawsuits, which is the constitutional meaning of the term “emolument.” Next, I describe some of the efforts my colleagues and I have made to investigate the historical meaning of this term and explain how our research may impact the resolution of these lawsuits. Finally, I discuss the novel decision issued by a federal district court in July 2018, which held that “emolument” was a flexible term at the founding that referred to “any ‘profit,’ ‘gain,’ or ‘advantage,’” including profits from ordinary market transactions. A second federal judge recently denied the president’s motion to dismiss on the same grounds, setting the stage for what seems likely to be a pivotal issue on appeal in both cases.
Via Larry Solum at Legal Theory Blog, who says “Highly recommended. Download it while it’s hot!”
Entirely apart from the merits of the arguments, it is especially notable the extent to which the President’s opponents have relied on the original meaning of the emoluments clauses. That focus suggests a conclusion among at least some prominent left-leaning historians and legal academics that (a) one can (at least sometimes) identify historical meaning of constitutional clauses; (b) historical meaning of constitutional clauses can (at least sometimes) be used to resolve modern controversies; and (c) historical meaning of constitutional clauses should be used to resolve modern controversies. That’s worth remembering when later commentators, legal academics and historians say that originalism is conceptually incoherent, practically impossible, or morally wrong.
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.