Evaluating Originalism: Commerce and Emoluments
80 Pages Posted: 16 May 2019 Last revised: 3 Jun 2019
Date Written: April 27, 2019
The debates among originalists and between them and their critics have continued unabated since Paul Brest, H. Jefferson Powell and others rebutted original intent originalism in the nineteen eighties. Scholars on both sides claim victory while others argue that the contestants actually agree on fundamental issues and merely talk past each other. This article suggests that the contest is real and appears in centuries of debates within Anglo-American and civil law. The article locates the Anglo-American origins of originalism in a novel seventeenth century method of legal interpretation used to achieve a specific political end — to stifle opposition to the union of Scottish and English subjects of King James after his accession to the English crown in 1603. The novel method followed Emperor Justinian's earlier attempt to forbid interpretation of the Corpus Juris Civilis because he considered interpretation to be a perversion of written law that generates confusion and discord.
The article then evaluates notable originalist interpretations of the Constitution's Commerce and Emoluments Clauses in light of the novel and traditional English interpretive methods. It identifies founding-era public understandings of terms in the Commerce Clause that reach commercial activities like insurance, agriculture and manufacturing and that encompass both prohibiting and commanding individuals' activities. In addition, it identifies founding-era public understandings of terms in the Emoluments Clauses that reach elected representatives who benefit from honest business transactions with governments. Anglo-American legal history proximate to the adoption of the Constitution supports a broad interpretation that prohibits elected officials from receiving those benefits in order to secure their independence, prevent conflicts of interest, and ensure the survival of representative government. The originalist interpretations of the Commerce and Emoluments Clauses ultimately rely on normative judgments, not historical facts.
American originalism first asked what the Constitution's founders, drafters or ratifiers intended. In the face of criticism it evolved to ask how the American public understood the Constitution's words. In the face of yet further criticism it is evolving to ask what we should make of the Constitution by applying original methods of legal analysis to constitutional text and history. Whether that iteration will be any more successful than its predecessors remains to be seen. If it is not, then another will likely take its place because originalism is ultimately a normative aspiration embraced by many who hope, like a commentator in 1535, that what Emperor Justinian failed to achieve in his era will yet come to pass.
Keywords: Constitutional Law, Legal Theory, Commerce Clause, Emoluments Clauses, Pluralism, Originalism, Legal Interpretation, Judicial Discretion, Legal History, Contractor's Act, Calvin's Case, Coke, Ellesmere, Corpus Linguistics
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