Emoluments in the Age of Trump

• In Event: Sources of Restraint in the American Republic

Abstract

The meaning, scope, and proper application of the Emoluments Clause of the United States Constitution has never been authoritatively adjudicated by the Supreme Court. Recent charges have been brought by the state of Maryland and the District of Columbia that Donald Trump is directly benefiting from increased business by foreign nations, seeking to curry the president’s favor, in direct violation of the Clause. However, lower federal courts are only now tentatively determining if such charges are even justiciable. The concern over federal officials materially benefiting from foreign powers was, however, central to the Founding generation’s worry over domestic corruption within an international system of commerce. My essay seeks to address the question: What do the concerns enacted by the Emoluments Clause reveal about the decline of civic republicanism in an age of neoliberalism?

In my essay, I argue that the gap between the Framers fear of corruption and the absence of a judicial doctrine on emoluments does not reflect the inability of the Framers to cognize individuals caught up in globalization, including financial transactions imitated by foreign sovereign powers. Instead, the current judicial impasse is the result of the domination of contemporary neoliberal discourse, which shifts the question of personal corruption to a question of market value. Many of the difficulties with the Constitution stem from the Framers inability to anticipate contemporary developments. As I will emphasize in my essay, the difficulty in making an authoritative emoluments charge reflects contemporary unwillingness to concern with personal corruption through economic activity, beyond quid pro quo bribery.

Author

• Douglas C. Dow, University of Texas at Dallas