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09/19/2017

James Cleith Phillips & Sara White on Corpus Linguistics and Foreign Emoluments
Michael Ramsey

James Cleith Phillips (J.D., University of California, Berkeley, School of Law; Ph.D. candidate, Jurisprudence & Social Policy, UC-Berkeley) and Sara White (M.A., Brigham Young University, linguistics; BYU, J. Reuben Clark Law School, Law and Corpus Linguistics Research Fellow) have posted The Meaning of the Three Emoluments Clauses in the U.S. Constitution: A Corpus Linguistic Analysis of American English, 1760-1799 on SSRN.  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.

This paper finds 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.