History. Between the fourteenth and eighteenth centuries, it was routine diplomatic practice for the royalty of a host country to give expensive gifts to departing foreign emissaries or diplomats at the end of their tenure in the host country.
However, in the mid-seventeenth century, the Dutch enacted a rule forbidding their foreign ministers from taking “any presents, directly or indirectly, in any manner or way whatever.” This was motivated by a fear of corruption. This new rule was alien to customary international relations, and it was strongly criticized by Abraham de Wicquefort, one of the more well-known Dutch political writers. Wicquefort wrote: “The custom of making a present . . . is so well established that it is of as great an extent as the law of nations itself, there is reason to be surprised at the regulation that has been made on that subject in Holland.” Wicquefort mocked his countrymen for fussing over trivial items, like a plate of fruit, and accused them of trying to create a “Republic of Plato in their fens and marshes.” The new rule was too high-minded and abstract, Wicquefort thought, and it, in essence, “condemn[s] the sentiments of all the other kings and potentates of the universe.”
But the new Americans were interested in such high-minded principles, even if they violated the sensibilities of kings and potentates. The Articles of Confederation, America’s first national constitution, apparently borrowing from the Dutch, included a provision in Article VI stating: “[N]or shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State.”
This Clause proved problematic in practice. Foreign powers gifted their departing American emissaries with the same kinds of gifts they had customarily given other diplomats, and the new Americans had to figure out how to square their American ban with standard international practice. American diplomats squirmed under two conflicting desires: on the one hand, the desire to please their foreign hosts by accepting their gifts, and on the other, the desire to stay true to the new constitution. (Of course, some American diplomats wanted not only to accept the gifts, but to keep them too.) When the King of France gave Benjamin Franklin a very expensive diamond encrusted snuff box, there were some public murmurings, but the Articles Congress ultimately permitted Franklin to keep the gift.
When the Constitution of 1787 was debated and drafted by the Philadelphia Convention, early drafts had no provision akin to the Articles of Confederation’s Foreign Emoluments Clause. However, towards the end of the Convention, on August 23, 1787, Charles Pinckney “urged the necessity of preserving foreign Ministers & other officers of the U. S. independent of external influence,” and he moved to insert a provision closely tracking the language in the Articles. Ultimately, Pinckney’s provision became Article I, Section 9, Clause 8. The provision occasioned little other recorded debate. However, at the Virginia ratifying convention, Governor Edmund Randolph explained:
This restriction was provided to prevent corruption. . . . An accident, which actually happened, operated in producing the restriction. A box was presented to our ambassador by the king of our allies. It was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign states.
Text. As explained, the Constitution’s Foreign Emoluments Clause (also known as the Emoluments Clause, Gifts Clause, Foreign Gifts Clause, and Foreign Titles Clause) was modeled on its Articles of Confederation predecessor. The original Articles of Confederation provision provided:
[N]or shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State.
Whereas the Constitution’s Foreign Emoluments Clause now provides:
[N]o Person holding any Office of Profit or Trust under them [i.e., the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
Thus, the modern Foreign Emoluments Clause’s text departed from its Confederation-era predecessor in two distinct ways. First, the modern Foreign Emoluments Clause, unlike its predecessor, expressly permitted Officers . . . under the United States to accept gifts from foreign governments if those officers had the consent of Congress. Some believe that this subclause introduced a substantive change, but others believe that it merely codified the prior practice of the Articles Congress.
Second, the Articles of Confederation provision applied both to Offices of profit or trust under the United States and also to Offices of profit or trust under . . . any . . . State, whereas the Constitution’s Foreign Emoluments Clause only applies to Offices of Profit or Trust under them, i.e., under the United States. The prevailing view is that the modern Foreign Emoluments Clause, unlike its Articles predecessor, does not reach state positions. Thus, some would argue that the modern Foreign Emoluments Clause has a somewhat more limited bite or scope than its Confederation-era predecessor.
Purpose. American ambassadors stationed abroad are prohibited from accepting gifts from foreign governments and their officials. The purpose is to prevent such diplomats from being bribed by foreign lucre and corrupted by other foreign gifts, and also to ensure that their loyalties remained undivided, i.e., running exclusively to the United States, its government, and its people. Substantial early American materials from the ratification era strongly support this view.
Scope. However, the text of the Constitution’s Foreign Emoluments Clause is not limited to American ambassadors or even to American diplomatic personnel. Instead, the Constitution’s Foreign Emoluments Clause applies to Offices of Profit or Trust under the United States: a substantially wider category. It is undisputed that this category applies to all officials holding appointed positions in the Judicial and Executive Branches of the national government.
What about the Legislative Branch? In 1792, the Senate asked Secretary of the Treasury Alexander Hamilton to compile a list of all persons holding Offices . . . under the United States and their salaries. Hamilton’s 1793 response included nonelected officials in each branch, including the Legislative Branch.
The question whether this category, and therefore the Constitution’s Foreign Emoluments Clause, reaches any or all federal elected positions—i.e., Representative, Senator, Vice President, President, and presidential elector—poses a difficult interpretive challenge. For example, Hamilton’s list did not include members of Congress or any other elected state or federal positions. Likewise, George Washington, while President, accepted and kept two diplomatic gifts, but he never asked for or received congressional consent. However, subsequent presidents, such as Andrew Jackson, in similar circumstances, sought congressional consent. Whose practice should we rely on?
Further Implications. The Clause is important in its own right, but also for what it might signify about the Framers’ thinking about corruption. The Clause is a solid example and strong evidence of the radicalism of the Framers’ anti-corruption commitment—a commitment that constitutionalized an anti-corruption rule which flew directly in the face of international convention and which made diplomacy more difficult for the new Republic’s officials. This anti-corruption-centered understanding of the Clause and of the Framers’ worldview might inform our understanding of other constitutional provisions and of the Constitution’s global structure. But the validity of such interpretations, which rely in large part on Framers’ intentions rather than specific constitutional text, is highly controversial.
What is a bribe, what is a gift? In one culture, a gift to a public official will be considered a bribe. In another culture, the same gift might be treated as a generous expression of appreciation. Gifts can be one of the best parts of society: they create bonds and love and warmth in a non-transactional way. But gifts can also be dangerous, creating ties that lead to unfairness and preferences, instead of equal treatment under the law. Part of the job of building a political society is identifying and separating that which is corrupt from that which is not corrupt. Societies separate and sort “corrupt” and “non-corrupt” differently. In short: whether an offering is treated as corrupt and bad or generous and valuable depends upon cultural and political context, and on how we write our laws.
As the history of the Emoluments Clause shows, the debate about the difference between which gifts are corrupt and which gifts are societally valuable made it into the Constitutional Convention. The early Americans made the radical choice, defying international convention.
The Emoluments Clause is remarkable for its stark departure from European diplomatic culture at the time of our Founding. The Framers chose to make a commitment to preventing corruption even though it complicated diplomacy between the fledgling United States and European nations. That choice alone is evidence of the Framers’ commitment to the independence of its public officials.
But when the Emoluments Clause alone is considered in the broader context of the Constitution, it becomes evident the Constitution contains within it a structural commitment to fighting corruption. Put simply, fighting corruption was a central reason for the Constitution. That matters for how we understand the Constitution’s meaning, and the one Clause, combined with the dozens of other clauses reflecting a strong anti-corruption principle, reflects back on each of those clauses and on the entire document itself, helping create a lens through which to understand what the best interpretation of the Constitution should be.
This essay is part of a discussion about the Foreign Emoluments Clause with Seth Barrett Tillman, Lecturer, Law, National University of Ireland, Maynooth. Read the full discussion here.
Just as a car is designed to go forward—and therefore any effort to understand a piece in the car assumes that function—the Constitution was designed to combat corruption, and therefore any effort to understand a piece in the document should fit with that function.
What is the evidence? There are nearly two dozen features of the original American Constitution that were designed to combat corruption. These clauses include the veto power, designed to limit the corrupting power of the Presidency; the Census, designed to keep Congressional districts from becoming “rotten”; the residency requirements for representatives, designed to keep rich adventurers from buying congressional seats, and the rules regarding transparency, to make sure there was a check on representatives dipping into the public till. One delegate to the Constitutional Convention called the provision to prevent public office from being sold or traded for political power the “corner-stone” of the new Constitution.
But also, during the Constitutional Convention and afterwards, the Framers talked about corruption more than almost anything—the word “corruption,” is written in his elegant handwriting fifty-four times in Madison’s famous notebook from the summer of 1787. The problems of corruption and bribery were the hot topic of the hot summer—they arose more often than even factions or violence. As Alexander Hamilton said in The Federalist No. 68, describing the work of writing the Constitution: “[n]othing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”
Perhaps this Clause alone stands as a somewhat small clause, forcing one to sort out gifts and bribes in a particular context, but when it is placed in the larger puzzle of the Constitution, it is part of a pattern that shows that American Constitution was designed in order to fight corruption.
In 1966, Congress enacted the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342. The 1966 Act provides elected and appointed officials and employees of the United States government with concrete guidance in regard to the receipt of gifts from foreign governments. Although there have been a few exceptional cases, primarily relating to President Obama’s Nobel Prize and federal employees’ working for foreign government universities, in general, over the last half century, there has been little need for the judiciary or others to expound on the Constitution’s Foreign Emoluments Clause; there has been little need because in most cases the propriety of foreign gifts is now tested by a detailed, modern federal statute, rather than by the more than 200-year-old and obscure Foreign Emoluments Clause.
Recently, the Foreign Emoluments Clause has enjoyed a surprising intellectual revival. This revival did not come about in response to a scandal or controversy connected to any specific foreign gifts. Instead, the Clause was the heart of a concerted intellectual effort, initiated by two prominent legal academics, Professors Lawrence Lessig and Zephyr Teachout, to rewrite the history of the Philadelphia Convention and our understanding of the Framers’ original intentions. As the new view has it, this Clause, in conjunction with other clauses, was part of the Framers’ anti-corruption project and that collectively these clauses gave rise to an implicit structural nontextual anti-corruption constitutional principle.
Other nontextual constitutional principles—such as separation of powers and federalism—have long been recognized, and such principles carry considerable weight, both in judicial decision-making and in scholarship. If an anti-corruption principle of similar weight were judicially recognized, then this principle—according to its intellectual proponents—would permit Congress to regulate contributions to congressional (and presidential) election campaigns, notwithstanding competing First Amendment concerns relating to freedom of association and free expression. Indeed, the new scholarship, and its focus on the Framers’ anti-corruption concerns, were cited favorably by the four dissenting Supreme Court Justices in Citizens United v. Federal Election Commission (2010) (Stevens, J.). But in his concurrence, Justice Scalia rejected the dissent’s position, in part, because the purported anti-corruption principle leaves “no limit to the Government’s censorship power.”
I think the new scholarship’s focus on the Framers’ deep concern in regard to bribery, divided loyalties, and corruption is entirely correct. The problem for the new scholarship is that the Framers’ abstract corruption-related concerns are not our law—the text of the Constitution is our law.
When turning to the Foreign Emoluments Clause’s Office . . . under the United States language, the new scholarship must confront a difficult interpretive question: does the Clause’s Office-related language apply to elected federal positions: e.g., members of Congress and the Presidency? If there are significant gaps within the reach of the Clause, that is, if the scope of the Clause’s Office-language reaches only appointed, as opposed to elected, federal positions, then it becomes difficult, if not impossible, to make the argument that the newly discovered nontextual anti-corruption constitutional principle founded on this Clause (and on other similarly worded clauses) extends or should extend to elected positions. The new scholarship’s nontextual anti-corruption principle cannot or ought not extend beyond the actual language of the Clause, particularly where, as here, the Framers could have easily added language (or used other suitable and more general language) making the Foreign Emoluments Clause squarely applicable to some or all elected positions.
Traditionally, precedents established by President George Washington and his administration carry great weight. President George Washington accepted and kept two diplomatic gifts, but he neither asked for nor received congressional consent. Washington’s conduct was widely reported in the press. So it would seem to indicate that he, his administration, Congress, and the public did not believe that the Clause applied to the presidency.
This interpretation is confirmed by Secretary Hamilton’s list. Hamilton was asked by the Senate to produce a financial statement listing all persons holding Office . . . under the United States and their salaries. Members of Congress were not on the list, nor was the President. With all due respect to Professor Lessig’s and Professor Teachout’s revised, modern understanding of the history and scope of the Constitution’s Foreign Emoluments Clause, Washington’s understanding, Hamilton’s understanding, and their eighteenth century contemporaries understanding must count for more. Because the original public meaning of the Foreign Emoluments Clause never embraced state or federal elected positions, any nontextual anti-corruption constitutional principle, to the extent one can be inferred from the Constitution’s structure and the Framers’ intent, cannot or, at least, should not reach elected positions. Thus, if Congress intends to regulate contributions to federal election campaigns, it cannot rely on the Foreign Emoluments Clause as a source of authority to do so.
In the year since President Donald Trump’s inauguration on January 20, 2017, a myriad of constitutional issues has so far arisen…