I accept posted a novel paper to SSRN on the historical pregnant of "emolument." It expands on unopen to remarks I gave at a conference on Historical Semantics in addition to Legal Interpretation at the University of Chicago, organized yesteryear Alison LaCroix in addition to Jason Merchant. The abstract of the newspaper is given below, followed yesteryear several tables in addition to figures that summarize the paper’s principal findings. Scroll downward to meet for yourself why the Trump Justice Department’s narrow Definition of “emolument” inwards CREW v. Trump cannot withstand scrutiny.
In its motion to dismiss inwards CREW et al. v. Trump, the Department of Justice (DOJ) defines the discussion “emolument” every bit “profit arising from purpose or employ.” DOJ claims that this “original understanding” of “emolument” is both grounded inwards “contemporaneous lexicon definitions” in addition to justifies an “office-and-employment-specific construction” of that term. On this basis, it argues that the Emoluments Clauses of the Constitution “do non prohibit whatsoever society inwards which the President has whatsoever fiscal involvement from doing line organisation amongst whatsoever foreign, federal, or dry reason instrumentality.”
Unfortunately, DOJ’s historical Definition of “emolument” is inaccurate, unrepresentative, in addition to misleading. Particularly because the authorities may try to utilize its flawed Definition inwards subsequent courtroom filings, this Article seeks to right the historical record. It does then based on a comprehensive written report of how “emolument” is defined inwards English linguistic communication language dictionaries published from 1604 to 1806, every bit good every bit inwards mutual police trace dictionaries published betwixt 1523 in addition to 1792.
Among other things, the Article demonstrates that every English linguistic communication lexicon Definition of “emolument” from 1604 to 1806 relies on ane or to a greater extent than of the elements of the wide Definition DOJ rejects inwards its brief: “profit,” “advantage,” “gain,” or “benefit.” Furthermore, over 92% of these dictionaries define “emolument” solely inwards these terms, amongst no reference to “office” or “employment.” By contrast, DOJ’s preferred Definition — “profit arising from purpose or employ” — appears inwards less than 8% of these dictionaries. Moreover, fifty-fifty these outlier dictionaries ever include “gain, or advantage” inwards their definitions, a fact obscured yesteryear DOJ’s selective quotation of only ane component of its favored Definition from Barclay (1774). The impression DOJ creates inwards its brief yesteryear contrasting iv historical definitions of “emolument” — ii wide in addition to ii narrow — is, therefore, highly misleading.
The proffer that “emolument” was a legal term of fine art at the founding, amongst a sharply circumscribed “office-and-employment-specific” meaning, is too inconsistent amongst the historical record. Influenza A virus subtype H5N1 vast quantity of prove already available inwards the populace domain suggests that the founding generation used the discussion “emolument” inwards wide diversity of contexts, including someone commercial transactions. This Article adds to that emerging historical consensus yesteryear documenting that none of the most important mutual police trace dictionaries published from 1523 to 1792 fifty-fifty includes “emolument” inwards its listing of defined terms. In fact, this term is mainly used inwards these legal dictionaries to define other, less familiar words in addition to concepts. These findings reinforce the determination that “emolument” was non a term of fine art at the founding amongst a highly restricted meaning.
Finally, the Article calls attending to the fact that the government’s dictionary-based declaration is flawed inwards another, to a greater extent than cardinal respect. Little or no prove indicates that the ii historical dictionaries — Barclay (1774) in addition to Trusler (1766) — on which DOJ relies inwards its brief to defend its “office-and-employment-specific” Definition of “emolument” were owned, possessed, or used yesteryear the founders, permit lone had whatsoever touching on on them or on the American people who debated in addition to ratified the Constitution. For example, neither of these dictionaries is mentioned inwards the to a greater extent than than 178,000 searchable documents inwards the Founders Online database, which makes publicly available the papers of the half dozen most prominent founders. Nor practise these volumes seem inwards other pertinent databases, such every bit the Journals of the Continental Congress, Letters of Delegates to Congress, Farrand’s Records, Elliot’s Debates, or the Documentary History of the Ratification of the Constitution. By contrast, all of the dictionaries that the founding generation did possess in addition to utilisation regularly — e.g., Johnson, Bailey, Dyche & Pardon, Ash, in addition to Entick — define “emolument” inwards the wide trend favoring the plaintiffs: “profit,” “gain,” “advantage,” or “benefit.”
To document its primary claims, the Article includes over 100 master copy images of English linguistic communication language in addition to legal dictionaries from 1523 to 1806, every bit good every bit consummate transcripts in addition to easy-to-read tables of the definitions contained therein. Influenza A virus subtype H5N1 instant written report is currently underway of dictionaries from 1806 to the present, which seeks to decide how in addition to why definitions of “emolument” may accept changed over time. Collectively, these inquiries are designed to attain to a greater extent than than merely aiding judges in addition to asset lawyers’ feet to the burn inwards the emoluments cases at ane time pending inwards 3 federal courts. They too render a footing for educating members of Congress, authorities officials, journalists, in addition to the broader populace virtually the historical pregnant of this of import nonetheless obscure constitutional term.
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