Emoluments, Textualism and Original Intent

A wooden judge's gavel lies atop of a copy of the United States Constitution.The ongoing refusal of President Donald Trump to both reveal the specifics of his personal finances and to decline any income from sources outside of his official salary as President has brought renewed attention to the Emoluments Clauses of the United States Constitution.  There are two such clauses, which state as follows:

The Foreign Emoluments Clause prohibits any “Person holding any Office of Profit or Trust” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State,” absent “the Consent of the Congress.” U.S. Const. art. I, §9, cl. 8.  The Domestic Emoluments Clause entitles the President to receive a salary while in office and forbids him from “receiv[ing] within that Period any other Emolument from the United States, or any of them.” U.S. Const. art. II, §1, cl. 7.
The meaning of these two provisions has become the subject of public debate and also litigation.  In one leading case, the State of Maryland and the District of Colombia have sued Donald Trump for violating these constitutional provisions.  They are suing for declaratory and injunctive relief which would compel President Trump to comply with the terms of the Constitution.


In a ruling on July 25, Federal District Judge Peter Messitte denied a motion to dismiss the lawsuit filed by the Justice Department.  In what is believed to be the first judicial interpretation of the Emoluments Clauses, Judge Messitte ruled that:

The Court is satisfied, consistent with the text and the original public meaning of the term “emolument,” that the historical record reflects that the Framers were acutely aware of and concerned about the potential for foreign or domestic influence of any sort over the President. An “emolument” within the meaning of the Emoluments Clauses was intended to reach beyond simple payment for services rendered by a federal official in his official capacity, which in effect would merely restate a prohibition against bribery. The term was intended to embrace and ban anything more than de minimis profit, gain, or advantage offered to a public official in his private capacity as well, wholly apart from his official salary.

(opinion at p. 39)

The Judge’s ruling is significant in that it rejects the largely textualist interpretation of the Emoluments Clauses advanced by the Justice Department on behalf of President Trump.  The President put forth an interpretation of the Clauses, derived primarily on the wording of the text and the sentence structure of the Clauses, that would have interpreted the phrase “emoluments” as a form of anti-bribery provision tied to the official acts of the President.  The result of such an interpretation would have been to place the outside income of President Trump — derived from his hotels and other business ventures — beyond the scope of the constitutional prohibitions.

Judge Messitte correctly rejected this “cramped” interpretation derived from the text alone.  He likened a textualist approach to the interpretation of the Emoluments Clauses to the similarly (and largely successful) attempt to re-define the word “corruption” in the campaign finance context to a mere prohibition of quid pro quo bribery.  This previous interpretive process has been critiqued persuasively by Professor Zephyr Teachout in her book Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United.  One of Professor Teachout’s conclusions was that the recent campaign finance decisions of the U.S. Supreme Court “’took that which had been named corrupt for over 200 years’ — which is to say, gifts to politicians — ‘and renamed it legitimate.’”

By rejecting an interpretation of the Emoluments Clauses that is derived largely from textual provisions viewed in isolation, Judge Messitte correctly arrives at an interpretation of the Clauses that is faithful to the original intent of the U.S. Constitution.  The demand that those holding public office derive their compensation from monies paid out of the public coffers was one of the defining political theories of the Revolutionary period in America.

Beginning in 1768, Parliament instituted a change in the manner in which colonial officials such as justices of the Massachusetts superior courts and, subsequently, the Massachusetts Governor and Lieutenant Governor were to be paid.  Whereas previously these colonial officials had received salaries drawn from the public fisc, Parliament changed the source of funds from which these salaries would be paid to the monies raised from customs duties (a source outside of the power of local legislatures).

This seemingly minor change inspired a harsh reaction among the colonists in Massachusetts.  The local population viewed this change as an attempt by Parliament to limit the influence of the locally elected Massachusetts assembly over the judicial and executive branches of the colonial government, by creating avenues of compensation that were immune from legislative control.  In 1772, the so-called Boston Pamphlet included in its denunciations of “taxation without representation” the charge that Parliament had schemed to “limit the influence of colonial legislatures and juries by tying the salaries of judges , the governor, and the lieutenant governor , and the creation of new vice admiralty courts to the collection and enforcement of customs revenue.” (quote from G. Edmund White, LAW IN AMERICAN HISTORY, 2012, at p. 121).  The colonists came to believe that the salaries of public officials, who were the agents of the people, should be paid by the colonial legislatures, and that outside sources of income improperly rendered these agents independent of the will of the people (id. at 126).

The Emoluments Clauses should not be viewed as an attempt to quarantine official decisionmaking from the influence of of gifts or bribes.  Instead, these unheralded constitutional provisions should be read as reflecting on one of the fundamental insights of the American theory of popular sovereignty.  This insight is that a key protection against tyranny in the executive and judicial branches is the ability of popularly elected legislatures to exercise influence over the compensation of officials exercising this authority.  The existence of independent sources of income during a period of public officeholding threatens the ability of the people to effectively exercise this control.  For this reason, the original intent of the Emoluments Clauses reaches far beyond a mere prohibition on the receipt of gifts and bribes, and Judge Messitte’s ruling is a sound one.

This Post Has One Comment

  1. Tom Kamenick

    Thanks for the info on the change of compensation for colonial magistrates, that’s something I hadn’t heard before. A couple questions.
    1) The quote from the Boston Pamphlet doesn’t refer to those type of payments as emoluments, and the debate in the case is largely around what type of payments actually are covered by emoluments. Do you have anything in the historic record besides the coincidence of those two things happening within a couple decades of each other to indicate the change in compensation actually led to the Emoluments Clause?
    2) Looking outside the text and at the historical record, it seems to never have been an issue that President George Washington received substantial business income in addition to his presidential salary – including from foreigners. If the founders were all hot and bothered about income from any other source, it’s hard to imagine that the first time it happened it would’ve passed quietly by.

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