As they seek to refine their method, originalists should pay more attention to the contemporaneous construction put on the Constitution.
In my previous post concerning the Foreign Emoluments Clause, I provided evidence from Rob Natelson that the term emolument had narrower and broader meanings. The narrower meanings would cover money and benefits from an office, whereas the broader meanings might cover any benefit or advantage whatsoever. In terms of whether the Clause would cover arms-length transactions with Donald Trump, only the broader meaning would cover those transactions.
To resolve the ambiguity, an originalist – especially one who follows the original methods approach – would employ the original legal interpretive rules to see if they could answer the question.
The Clause provides:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, 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.
There are three potentially relevant interpretive rules or moves. The first interpretive rule is noscitur a sociis, which means that a word is known by its associates. This rule applies to the grouping together of “any present, Emolument, Office, or Title.” This grouping suggests that if “emolument” is ambiguous and one of the meanings is closer to the other terms in this grouping, then “emolument” should receive that meaning. The other terms – present, Office, or Title – suggest benefits that are conferred on a specific person. By contrast, they do not appear to cover arms-length business transactions. Thus, the grouping suggests an emolument is intended to cover a benefit conferred on a specific person, but not an arms-length transaction.
The second interpretive move derives from the language “of any kind whatever.” This language appears to suggest a broad understanding of emolument. And therefore one might conclude that the broader meaning of emolument was being signalled by this phrase. While that is certainly a possibility, it is not the only possibility. If the narrower meaning of “emolument” had been employed, then this language might still have a meaning – specifically, that the narrower meaning should be read broadly. For example, if emolument meant fringe benefits attached to an office, it should include all such fringe benefits, even ones that might otherwise be thought not to be covered. Under this latter understanding, the Clause would not cover arms-length transactions.
The third interpretive rule is the last antecedent rule, which is “a doctrine of interpretation by which a court finds that qualifying words or phrases refer to the language immediately preceding the qualifier, unless common sense shows that it was meant to apply to something more distant or less obvious.” Under this rule, the qualifying phrase “of any kind whatever,” might only apply to the last antecedent, the term “Title.” The fact that there is a comma prior to the qualifying phrase, however, makes it less likely that this rule will be applied here. I don’t know if this rule existed at the time of the Constitution. And it is possible it could be overridden by common sense. But, on the other hand, it might suggest that the inference from “of any kind whatever” language did not apply to emolument.
Overall, then, I believe that this limited evidence points tentatively and weakly to concluding that emolument does not cover arms-length transactions. The noscitur a sociis rule favors this interpretation, the “of any kind whatsoever” language may or may not point in the opposite direction, and even if it does point in the opposite direction, the last antecedent rule might negate its application to “emolument.”