Professor Michael Ramsey of the University of San Diego recently pointed out that commentators who claim Donald Trump will violate the Constitution’s Foreign Emoluments Clause (actually the Foreign Emoluments Subclause) on the day of his inauguration haven’t done their homework. Specifically, they have not sufficiently researched the meaning and scope of the provision. For example, they assume that market-driven payments to Trump’s businesses are “emoluments” within the Constitution’s meaning of the term. It is by no means clear that this is true.
Founding-era records display at least six variations in the meaning of “emolument” in official discourse. The variations differ significantly in their scope. It will take additional research to determine which of them matches the understanding of the Constitution’s ratifiers.
Variations in the Meaning of “Emolument”
Following are the six, each exemplified with a quotation. All the quotations except the last are from the journals of the Continental and Confederation Congresses, where nearly all the framers and leading ratifiers had seen service. The last is from the records of the Constitutional Convention:
* “Emolument” could mean any advantage or benefit whatsoever, as in “they should be permitted . . . to share in the blessings of peace, and the emoluments of victory and conquest.” This was the broadest usage, and the common dictionary definition.
* “Emolument” could mean gain that was specifically pecuniary, including gain attached to a particular office and “private emolument”—that is, money from outside sources, such as trade: Examples: “that honor and emolument should naturally follow the fortune of those who have steered the vessel in the storm and brought her safely to port” and “The emoluments of the trade are not a compensation for the expense of donations.”
* It could mean the compensation—pay and fringe benefits—attached to a particular office, as in “such as his rank entitles him to . . . and without pay or any other emolument whatever.”
* It could mean the fringe benefits attached to a specific office but not the pay, as in “that his emoluments and one half of his pay be suspended” or “his request for pay cannot be complied with, and that all the emoluments he derives from the United States are to cease” or “he should be allowed the emoluments but not the pay.”
* It might include items such as living supplies, extra compensation, and reimbursement for expenses, as in “The value of the additional emoluments of forage and subsistence would amount at the rate of thirty six dollars per month . . .”
* Or it could exclude one or more of these items, as in “the Post-master general make such an allowance to the postmaster . . . in addition to the emoluments of his office, as may be a reasonable compensation for his extra services” or “[Pennsylvania] President Franklin moved . . . that the executive should receive no salary, stipend or emolument for the devotion of his time to the public services, but that his expenses should be paid.”
How Does This Affect Trump?
The first two definitions are broad enough to include outside commercial transactions. The phrase in the Foreign Emoluments Subclause “of any kind whatever” suggests that the term should be read this way.
The other four variations are all tied to compensation for holding a particular office. Presumably they would include a salary from the French government to an American official for holding his office. But they would exclude payments made to President Washington if the British government happened to buy some of Mount Vernon’s exported tobacco, and they would exclude fair market rents paid at the Trump Tower.
Arguing for one of the definitions tied to office is the fact that the Foreign Emoluments Subclause uses the word as one item in a series. Pointing in the same direction are the Constitution’s other two uses of “emoluments,” both of which are directed at compensation for holding office.
I’m currently researching the Clause—doing the “homework” that others should have. I’ll keep you posted on what I find.
An earlier version of this post first appeared in The Originalism Blog.