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01/31/2019

Emoluments and Corpus Linguistics (Updated)
Michael Ramsey

In the Washington Post, reporter Aaron Blake has this story: A big Trump case hinges on the definition of ‘emoluments.’ A new study has bad news for him.  From the introduction:

The [new] study concerns the “emoluments clause” case, which was brought by the attorneys general in Maryland and the District of Columbia. The case seeks to show Trump is violating the portion of the Constitution barring a public official from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” The case has progressed further than some experts predicted, with a U.S. district judge last year allowing it to proceed and launching the discovery process, in which Trump’s business dealings can be revealed.

Perhaps the biggest unresolved question hanging over the whole thing is this: What exactly is an “emolument"?

For Trump to have violated the Constitution, it requires his businesses' acceptance of foreign money to be understood as “emoluments.” But that is not a word that is widely in use today, nor has the clause been tested frequently in courts.

Trump’s legal team has pointed to some 18th-century dictionaries to argue for a narrow definition of an emolument as a profit specifically "arising from an office or employ” — i.e. something leveraged by a position of power. The payments to Trump by foreign entities staying at his hotel do not qualify, his attorneys argue, because they are separate from his work as president. The attorneys general argued for a broader definition that includes any benefit, advantage or profit, regardless of official actions.

The U.S. district judge sided with the attorneys general after a Georgetown University law professor studied many more dictionaries written at the time and found they favored the broader definition.

That decision is under appeal, but now a new study submitted as an amicus brief in the case bolsters it, using a much-broader survey of how the word was used in the late-1700s than even the dictionary study.

The study from Clark D. Cunningham at Georgia State University and Jesse Egbert of Northern Arizona University uses a scientific method called “corpus linguistics” that combines traditional linguistics with large sets of data, in the form of contemporary written texts.

And from later on:

Corpus linguistics has been around as a field of study since the 1960s, but it has become increasingly popular among constitutional “originalists” — those who believe we should decide cases based upon the original meaning. Utah Supreme Court Justice Thomas R. Lee, the brother of Sen. Mike Lee (R-Utah), has been a main proponent of its use in judicial opinions, and it has been used in Supreme Court cases in 2011 by Chief Justice John G. Roberts Jr.and last year by Justice Clarence Thomas. The Michigan Supreme Court issued an opinion in 2016 in which every justice cited corpus linguistics.

(Via How Appealing).

UPDATE: At Prawfsblawg, Carissa Byrne Hessick is skeptical: Corpus Linguistics Comes to the Fourth Circuit (and that’s not a good thing!). One of several criticisms:

For one thing, using the phrase “scientific investigation” connotes that the professors conducted an experiment, that the results of that experiment were objectively observable (rather than mere subjective impressions), and that the findings can be replicated.  This is reminiscent of claims by others who advocate for the use of corpus linguistics in statutory interpretation because those “findings are replicable and falsifiable.”

But corpus linguistics does not allow you to type a word or a phrase into a computer which spits out an answer to the question of meaning.  At best, corpus linguistics allows other people to replicate your search of a corpus linguistics database, but it does not allow them to replicate your findings.  That is because the findings of a corpus linguistics analysis require inference and interpretation.  I’ve made this argument before (using a case called Rasabout as my example).  But the subjective judgment required is on stark display in this brief.

Among other inferences, Professors Cunningham and Egbert conclude that, because the word “emolument” was often modified by the word “official,” that means the word “emolument” when it appeared without modification was generally understood to mean something broader than “profit arising from office.”  If everyone would have understood the term “emolument” to be limited to profits from holding office, so their argument goes, then “official emolument” would be an oddly redundant phrase.  It is for similar reasons, Professors Cunningham and Egbert explain, that we don’t often see the word “fork” modified by the word “metal”—we generally assume that if someone is referring to a fork, then he or she is referring to a metal fork.

This analysis by Professors Cunningham and Egbert may seem perfectly logical.  And you may even be convinced by it.  But the fact that something seems logical does not mean it is “scientific.”  To the contrary, many things that appear logically true end up being empirically false.  Once you have to rely on inferences to derive "findings" from your results, you have left the world of objective truth and moved into the realm of theory.