James Cleith Phillips, University of California, Berkeley, School of Law (Students), and Sara White, Brigham Young University, Law School; BYU Center for Language Studies, have published The Meaning of the Three Emoluments Clauses in the U.S. Constitution: A Corpus Linguistic Analysis of American English, 1760-1799. Here is the abstract.
The recent flurry of scholarship seeking to understand the meaning of the emoluments clauses of the Constitution, particularly the Foreign Emoluments Clause, in the wake of President Trump’s election and subsequently filed lawsuits, has relied on a host of interpretive methodologies. To the extent scholars now (and courts later) seek to understand what the term emolument(s), used thrice in the Constitution, would have meant to the founding generation, their methodologies in determining such have generally relied on small, unrepresentative samples of language usage and founding era dictionaries. But the former cannot confidently provide insights that we can generalize to the greater population (either overall or of lawyers) from the time, and the latter are simply not up to the task of determining usage patterns. Instead, corpus linguistics—what Professor Lawrence Solum had predicted “will revolutionize statutory and constitutional interpretation”—is needed to answer that question. This paper tackles the meaning of emolument(s) in the founding era using the first (that we can find) full-blown corpus linguistic analysis of constitutional text in American legal scholarship. While at least three others (Randy Barnett, Jenn Mascott, and Joel Hood) have done corpus linguistics-like analysis in constitutional interpretation, none have used all of the tools of a corpus (collocation, clusters/n-grams, frequency data, and concordance lines) and used a sufficiently large and representative corpus of the relevant time period—here the underlying data of the soon-to-be released Corpus of Founding Era American English (COFEA)—to make confident conclusions about probably founding-era meaning. 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. We constructed three corpora for our analysis that covered 1760-1799: one of books, pamphlets and broadsides from a mix of ordinary and elite authors (53.4 million words), one correspondence of six major “Founders” (43.9 million words), and one of legal materials (48.6 million words). From each we sampled about 250 instances of the use of the term emolument (and read over 150,000 words of context--the equivalent of a Harry Potter novel). We found that the broad, general sense of emolument was the most common compared to the narrow, office/public employment sense in the “ordinary” corpus (54.6% to 34.1%, 11.2% ambiguous), but that the general sense was less common than the narrow sense in the “elite” corpus (29.3% to 64.8%, 5.9% ambiguous) and the “legal” corpus (25.6% and 68.7%, 5.7% ambiguous). When just looking at instances in our sample where the recipient is an office, we found the narrow sense dominated: “ordinary” corpus (84.2%), “elite” corpus (88.0%), “legal” corpus (94.2%). And the narrow sense was even more common when looking in the context of emoluments from government: “ordinary” corpus (86.7%), “elite” corpus (92.6%), and “legal” corpus (97.3%). This paper concludes that the Congressional and Presidential Emoluments Clauses would have most likely been understood to contain a narrow, office or public-employment sense of emolument. But the Foreign Emoluments Clause is more ambiguous given its modifying language “of any kind whatever.” Further research into that phrase is needed.Download the article from SSRN at the link.