Emoluments Amicus Fitting To Turn Originalists Into Hypocrites, Again

The original meaning of 'emoluments' suggests Trump is unconstitutionally corrupt.

(Photo by Zach Gibson/Getty Images)

Among the many reasons I hate originalist arguments is that I do not think the language predilections of 18th Century slaveholders are particularly relevant to the rights guaranteed to me under the United States Constitution. Sure, it’s historically interesting to learn that James Madison actually thought the presidency should be settled via mandingo fighting contests, or whatever. But I don’t generally think there is a lot of value gained from imposing the social and scientific limitations of landed gentry in 1787 upon a modern legal system.

For me, our common law system that values precedent and respects stare decis allows for all of the benefits of having a jurisprudence that is protected from the immediate political winds of the moment, without any of the ridiculousness of trying to divine how Thomas Jefferson would react to a data breach on Instagram. It’s only in the exceedingly rare cases where there is no case law in the face of a novel aspect of constitutional interpretation that I give a rat’s ass about what the Founders might have thought, and even then, I think of their views as informative but not dispositive.

The emoluments lawsuit filed by the Maryland Attorney General Brian Frosh and District of Columbia A.G. Karl Racine against Donald Trump is one of those rare cases. All the other presidents before the current grifter have avoided the kind of obvious and public displays of corruption that Trump flaunts with his hotel being the de-facto coverage charge of lobbying the White House. We don’t really know what Article 1, Section 9 means:

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.

It’s been a while since somebody went around saying, “I offer you this emolument in contemplation of your fine regard.” In such a situation, I’m reluctantly interested in what the slavers who wrote it had to say about it.

So, somebody looked into it. An amicus brief filed in the emoluments case against Trump included a study — conducted by Clark D. Cunningham of Georgia State University and Jesse Egbert of Northern Arizona University — on the historical usage of the word “emoluments.” Trump’s people have been arguing that the word meant a very specific thing, while Maryland has been arguing it meant an expansive thing. The new study backs up Maryland’s position. Here are the top findings, according to the Washington Post:

Sponsored

Studying 138 million words written between 1760 and 1799, the researchers found 2,500 uses of “emolument” or “emoluments.” From there, they found:

* The word was usually modified either before or after its usage — much more than an average noun — suggesting it had a broad meaning that required such specification and clarifying.
* Many of the uses concerned personal or private transactions not involving a public official.
* The word was often modified using the adjective “official,” which would be redundant if that were understood as part of its definition.
* It often appeared (35 percent of the time) with other nouns as part of a “coordinated noun phrase,” and in many cases involving public officials it was used alongside the word “profit.” This suggests it could be something besides a profit.

Perhaps most importantly, the study found these coordinated noun phrases often used the word “other” before emoluments. (In fact, the phrase “other emoluments” accounted for one out of every 30 uses of emolument, which is far more common than for other nouns.) This suggests many of the words that would proceed “other emoluments” were understood themselves to be forms of emoluments. This would include words like “bounties,” “fees,” “contracts,” “lands,” “pay,” “clothing,” “privileges” and “places.”

Taken together, this research suggests many things constitute an emolument and that Trump’s continued acceptance of basically anything from foreign states could be interpreted as accepting emoluments.

This is the kind of linguistic truth-telling that originalists are supposed to go in for. I would imagine this study being very compelling evidence for the conservative wing on the Supreme Court that Trump is wrong and his continued acceptance of foreign money in the form of hotel bookings is, in fact, an emolument prohibited by the Constitution.

Oh, wait, I forgot originalism is a scam devised by Republicans who only care about it when it comes time to restrict the rights of minorities and women. They’ll find the one time George Washington accepted some teeth knocked out of a slave’s mouth by a Dutch emissary, and say that the example proves the Founders would have been cool with Trump making royal viziers stay at his hotel before they dismember journalists. Even if they hew towards an “original” definition of “emoluments,” they’ll find that the penalty for violating the clause is to cross your heart and promise that you’ll never do it again.

Well, maybe not Neil Gorsuch. Of all the so-called originalists who are on or have been on the Supreme Court, Gorsuch seems like the guy who actually believes in this crap. He seems like the one who didn’t get the memo that this was all for show.

A big Trump case hinges on the definition of ‘emoluments.’ A new study has bad news for him. [Washington Post]

Sponsored


Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.