Editorial: Trump, Emoluments, and the Professoriate

So states the “Foreign Emoluments” clause of the United States Constitution—Article I, Section 9, Clause 8. Lawsuits have been filed in New York, Maryland, and Washington, D.C., alleging that President Trump is in violation of the clause. The plaintiffs claim that Trump’s business interests necessarily involve the president in drawing income from foreign governments. Every time the government of Myanmar or Poland lodges one of its emissaries at a Trump hotel, their reasoning goes, the president makes money, i.e., accepts an “emolument.”

Donald Trump’s financial assets are certainly fair game for criticism and debate, but this argument is weak. The Constitution’s text doesn’t lend itself to the sort of interpretation these plaintiffs want to believe.

The president’s most effective defender on the subject of foreign emoluments is not his own Justice Department but a pair of law professors: Seth Barrett Tillman, a law professor at Maynooth University in Ireland, and Josh Blackman, a professor at the South Texas College of Law. Tillman and Blackman have filed amicus briefs with each of the courts considering a foreign-emoluments suit. Their primary contention: that the Constitution’s ban applies only to persons holding office “under” the Constitution and thus only to appointed positions, not elected officials. While president, both George Washington and Thomas Jefferson accepted personal gifts from foreign dignitaries (a portrait of Louis XVI and a bust of czar Alexander I, respectively). When the Senate, in 1793, asked Treasury Secretary Alexander Hamilton to “lay before the Senate, at the next session of Congress, a statement of the salaries, fees, and emoluments … of every person holding any civil office or employment under the United States,” Hamilton’s submission included nothing about any elected official.

The Department of Justice argues that the term “emolument” “refers to benefits arising from personal service in an employment or equivalent relationship.” But Tillman and Blackman’s more sweeping case is, in our view, peremptory.

What catches our attention about this case, though, isn’t so much the legal argument for or against the foreign emoluments clause’s relevance to the president. What most interests us is the extent to which judicial liberals and proponents of the “living Constitution” have suddenly turned into constitutional textualists. Ordinarily, of course, constitutional law professors at our most venerated institutions are happy to find all sorts of emanating penumbras and hidden principles in the Constitution—a right to privacy that somehow includes having abortion at any stage of pregnancy, a right to marry a person of one’s own sex, a right to produce and view pornography, and many other rights nowhere mentioned in the Constitution or remotely connected to any constitutional language.

Suddenly, liberal legal authorities are scrutinizing the actual text of the Constitution—and not just their favorite phrases in the First and 14th Amendments! Amicus briefs by law professors alleging Trump to be in violation of the clause are packed with discussions of the meaning of a single constitutional word: “emoluments.” What did it mean in Blackstone’s Commentaries? What did it mean in Adam Smith’s Wealth of Nations? One professor, John Mikhail of the Georgetown School of Law, undertook to produce definitions of the disputed term from scores of dictionaries from the 17th and 18th centuries.

We don’t find their scholarship especially persuasive; indeed it strike us as rather tendentious. There are many reasons to find fault with Trump and his administration; this isn’t one of them. But we’re glad to know that the constitutional law professoriate has rediscovered the need to base one’s arguments about constitutional meaning on what the Constitution actually says and what its words meant at the time of its composition.