Evaluating Originalism: Commerce and Emoluments

Authors

John Vlahoplus

Document Type

Article

Abstract

(Excerpt)

This Article suggests that originalist theories share a core focus that meaningfully competes with pluralist theories. 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. It details the novel method and the competing traditional method of English legal interpretation. It then evaluates originalist interpretations of the Commerce and Emoluments Clauses of the Constitution in light of the two competing methods.

Part I provides a brief introduction to the core of originalism and its criticisms of pluralism. Part II sets out the novel seventeenth-century method of interpretation. Part III details the traditional pluralist method of English legal interpretation and its critique of the novel theory. Part IV suggests that the competing English approaches anticipated many of the major points that originalists and their critics debate today. Part V evaluates originalist interpretations of the Commerce Clause. Part VI evaluates originalist interpretations of the Emoluments Clauses in the context of President Trump’s business activities, with special attention to Anglo-American legal history proximate to the adoption of the Constitution that characterized the benefits of government contracts as emoluments that threaten public trust and the survival of representative government. Part VII considers the implications of the evaluations for originalism.

This Article concludes that the core of originalism is normative, not descriptive. It continues to face the same challenges that it has throughout history. It has survived for centuries because it is normative, and its proponents are unlikely to yield to theoretical arguments any time soon.