Interpretation The Foreign Emoluments Clause: Article I, Section 9, Clause 8

by: Zephyr Teachout and Seth Barrett Tillman

Zephyr Teachout
Zephyr Teachout Associate Professor of Law, Fordham University School of Law
Seth Barrett Tillman
Seth Barrett Tillman Lecturer, Law, National University of Ireland, Maynooth

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.