The Foreign Emoluments Clause II: Inferences from the Interpretive Rules

In my previous post concerning the Foreign Emoluments Clause, I provided evidence from Rob Natelson that the term emolument had narrower and broader meanings.  The narrower meanings would cover money and benefits from an office, whereas the broader meanings might cover any benefit or advantage whatsoever.   In terms of whether the Clause would cover arms-length transactions with Donald Trump, only the broader meaning would cover those transactions.

To resolve the ambiguity, an originalist – especially one who follows the original methods approach – would employ the original legal interpretive rules to see if they could answer the question.

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.

There are three potentially relevant interpretive rules or moves.  The first interpretive rule is noscitur a sociis, which means that a word is known by its associates.  This rule applies to the grouping together of “any present, Emolument, Office, or Title.”  This grouping suggests that if “emolument” is ambiguous and one of the meanings is closer to the other terms in this grouping, then “emolument” should receive that meaning.  The other terms – present, Office, or Title – suggest benefits that are conferred on a specific person.  By contrast, they do not appear to cover arms-length business transactions.  Thus, the grouping suggests an emolument is intended to cover a benefit conferred on a specific person, but not an arms-length transaction.

The second interpretive move derives from the language “of any kind whatever.”  This language appears to suggest a broad understanding of emolument.  And therefore one might conclude that the broader meaning of emolument was being signalled by this phrase.  While that is certainly a possibility, it is not the only possibility.  If the narrower meaning of “emolument” had been employed, then this language might still have a meaning – specifically, that the narrower meaning should be read broadly.  For example, if emolument meant fringe benefits attached to an office, it should include all such fringe benefits, even ones that might otherwise be thought not to be covered.  Under this latter understanding, the Clause would not cover arms-length transactions.

The third interpretive rule is the last antecedent rule, which is “a doctrine of interpretation by which a court finds that qualifying words or phrases refer to the language immediately preceding the qualifier, unless common sense shows that it was meant to apply to something more distant or less obvious.”  Under this rule, the qualifying phrase “of any kind whatever,” might only apply to the last antecedent, the term “Title.”  The fact that there is a comma prior to the qualifying phrase, however, makes it less likely that this rule will be applied here.  I don’t know if this rule existed at the time of the Constitution.   And it is possible it could be overridden by common sense.  But, on the other hand, it might suggest that the inference from “of any kind whatever” language did not apply to emolument.

Overall, then, I believe that this limited evidence points tentatively and weakly to concluding that emolument does not cover arms-length transactions.  The noscitur a sociis rule favors this interpretation, the “of any kind whatsoever” language may or may not point in the opposite direction, and even if it does point in the opposite direction, the last antecedent rule might negate its application to “emolument.”

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. gabe says

    OK, that was helpful.
    I would still ask, to what extent should one weigh past practice?

    Would not, or perhaps, could not, long usage and practice help to shape the interpretive rule or, at least, how we apply the interpretive rule.

  2. Paul Binotto says

    Seems to me, a well reasoned, clearly stated argument, and the conclusion reasonable and supported.

    Mr. Gabe does make a good point about past practice, but I anticipate that Prof. Rappaport would respond that while past practice may be relevant, it does not, in this instance, employing a purely “original method approach” ; even (I presume), if it could be satisfactorily demonstrated that there existed a reasonably comparable past practice preceding the framing of the Constitution, to be considered, (as Mr. Gabe may be apt to provide).

    Certainly, Mr. Trump can’t be the first person (or is he) with significant foreign business interests to ascend to the Presidency; hasn’t this issue ever been raised before? Interesting how proponents of a “one unified global economy and government” and of a “living” constitution can suddenly become so provincial and legally rigid, even if it is as they say, purely a matter of national security.

    • gabe says

      Paul:

      Correct as to Rappaports “reply” were he to provide one; and i agree that on a purely “originalist” basis, a textualist basis that would be correct.

      However, quite often in these pages we read of decisions that indeed refer to, or have as a substantive basis an analysis of “long standing practice. A number of *originalists” have made such a claim.

      However, one need only look at Mr. Washington for an example. He being “The First”, his situation may prove illustrative as to what both the intent AND the textual elements mean / indicate. Wahsington, and many others, had numerous business ventures, one of which I alluded to in an earlier post, the Potomac Valley land consortium which had at its corporate goal the development of lands in the Potomac area.

      Was the Good General required to divest himself of any and all interests in this endeavor? Clearly he was not required to do so as he eventually passed on his 50 shares to his posterity.

      Hamilton and others also were not required to divest themselves of their commercial interests.

      Also, one may want to look at practices in the State Legislatures / State Governors mansions. Was divestment required?

      Not to my knowledge but I do not pretend to be expert in the matter. It is simply that in my scant reading of the times, and the personalities, I do not remember ever having coming across an instance where a political actor of high office was required to divest himself of his commercial interests. Clearly, at the State level this was not the case.

      Rather, I simply ask, if Washington, and others, were not required to do so, how is it that we now debate what The Trumpster must do?

      As for a more contemporary example, would not The SecState be considered a high office. I guess not as the Clinton Foundation continued to operate at full steam aided and assisted, quite nicely I might add, by the then incumbent SecState.

      Recall that in these emoluments discussions, some have argued that the Presidency is not to be considered a “high office” (quite the surprise to one such as I). If that be so, then I fail to understand the “tempest” surrounding emoluments.

      Hope yoiu had a Happy New Year.

      take care
      gabe

      • Paul Binotto says

        Mr. Gabe,

        Thanks for the reply; And, Happy, Healthy New Year to you, too!

        These are great examples; the definitive question here seems to be International vs Domestic emoluments – do you know, did Washington’s and these early others (and, excluding Clinton Foundation, which obviously does), have an international/foreign component to their various business ventures? The Clause would seem to be limited to only those benefits derived from a foreign source.

        Best, Paul

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