James Cleith Phillips (University of California, Berkeley, School of Law, Students) & Sara White (Brigham Young University - J. Reuben Clark Law School; BYU Center For Language Studies) have posted What Does Emoluments Mean in the U.S Constitution?: A Corpus Linguistics Analysis of American English, 1760-1799
on SSRN. Here is the abstract:
With the election to the White House of a billionaire possessing a vast global business empire, a long-ignored word in the U.S. Constitution has drawn the attention of scholars, lawyers, and courts: emolument.
With three federal law suits filed against President Trump since his surprise election victory, one of these clauses—what we’ll call the Foreign Emoluments Clause—has gained particular attention from academics, the media, and the public. Scholars have delved into the purpose behind the clause, historical practice related to it, how courts have historically interpreted the word, what government officials (including the Office of Legal Counsel) have interpreted the various emoluments clauses to mean, and the possible meaning of emoluments in late 18th Century English.
This last inquiry, however, has suffered from the same methodological flaws that have traditionally plagued originalist inquiries into what is called the original public meaning of constitutional words and phrases: small, skewed samples of the use of the word and a reliance on dictionaries. To provide a probable answer to the question of how Americans in the late 1700s would have understood the use of the word emolument in the Constitution, this article applies a nascent methodology just beginning to be used by scholars and courts in legal interpretation: corpus linguistics. In so doing the article answers the recent call by Larry Solum to incorporate corpus linguistics in original public meaning research. However, the article does not discount other methodologies of constitutional exegesis; nor does the article claim to prove the meaning of any of the Constitution’s invocation of the word emolument, only make some meanings more probable than others; nor does the article take sides on whether the President has violated the Constitution. But the article does add another piece to the emolument puzzle, and provides a more rigorous, relevant, transparent, and accurate methodology than scholars have so far employed in investigating the original public meaning of the various emoluments clauses. In sum, this article is narrower than most on the topic, but within that niche it dives deeper than any have so far gone.
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