Text linguistics and textualism On the role of linguist(ic)s ...

Text linguistics and textualism On the role of linguist(ic)s ...

Using Empirical Data to Investigate the Original Meaning of Emolument in the Constitution Available at: www.clarkcunningham.org/MeaningOfEmolument.html Clark D. Cunningham W. Lee Burge Chair in Law & Ethics Georgia State University College of Law [email protected] www.clarkcunningham.org Jesse Egbert Assistant Professor, Applied Linguistics Northern Arizona University [email protected] http://oak.ucc.nau.edu/jae89/ Oct 18, 2019

Cunningham-Egbert Meaning of Emolument 1 Guiding principles for linguists involved in legal interpretation Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 2 Guiding principles for linguists

involved in legal interpretation 1. Linguists are not judges They should not interfere in the judicial process 2. Linguists are not political activitists They should not use their expertise as an excuse to participate in partisan political debates 3. Linguists are not hired guns They should not perform linguistic analysis with the goal of supporting a biased position, especially for money 4. Linguists are not (usually) lexicographers They should avoid conclusive statements about word definitions

5. Linguists are not prescriptivists They should focus on describing language rather than prescribing or proscribing language choices Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 3 Guiding principles for linguists involved in legal interpretation 1. Linguists are (usually) scientists They should apply the scientific method to address important linguistic questions

2. Linguists are language experts They should account for all relevant linguistic parameters and apply state of the art methods 3. Linguists have specialized training They should apply use their specialized skills but should not purport to be an expert in areas of linguistics outside of their expertise 4. Linguists are language professionals They should educate the legal profession about the benefits of specialized legal training 5. Linguists can be interdisciplinary scholars They should work hand-in-hand with legal scholars Oct 18, 2019

Cunningham-Egbert Meaning of Emolument 4 This mornings newspaper Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 5 Trump Will Host Next G7 Summit at His Doral Resort

Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 6 Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 7 Representative Jerrold Nadler of New York, the

chairman of the House Judiciary Committee which is charged with drawing up articles of impeachment against the president He is exploiting his office and making official U.S. government decisions for his personal financial gain The emoluments clauses of the Constitution exist to prevent exactly this kind of corruption. Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 8 Constitutional Convention

August 23, 1787 Charles Pinckney Delegate from South Carolina Moved to add to Article I: no Person holding any Office of Profit or Trust under them [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.

Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 9 Virginia Ratifying Convention June 15, 1788 Governor Edmund Randolph Oct 18, 2019 Explains the Foreign Emolument Clause

[It] restrains any person in office from accepting of any present or emolument, title or office, from any foreign prince or state. This restriction is provided to prevent corruption. [This] provision [is] against the danger of the President receiving emoluments from foreign powers. If discovered, he may be impeached. I consider, therefore, that he is restrained from receiving any present or emolument whatever. It is impossible to guard better against corruption. Cunningham-Egbert Meaning of Emolument 10

Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 11 1899: Old Post Office built 2013: 60 year lease to Trump Organization 10/26/16: Reopened as Trump International Hotel Oct 18, 2019 Cunningham-Egbert Meaning of Emolument

12 Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 13 Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 14

How the Trump hotel changed Washingtons culture of influence Washington Post Aug 7, 2017 Veterans groups were brought in to lobby Congress against a law allowing victims of 911 to sue Saudi Arabia $270,000 in hotel charges $190,000 for rooms $78,000 for catering $1,600 for parking The bill was paid by the Kingdom of Saudi Arabia

Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 15 District of Columbia and State of Maryland v. Trump Filed June 12, 2017 in U.S. District Court, Maryland Oct 18, 2019

Cunningham-Egbert Meaning of Emolument 16 Presidents Motion to Dismiss when the Constitution was ratified emolument had two distinct meanings: a narrow sense limited to profit arising from an office or employ a broad sense meaning benefit, advantage or profit emolument in the Constitution only referred to the narrow meaning

Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 17 Emolument Cases Current Status DC & Maryland v Trump (Maryland) July 25, 2018: Trial court denies Presidents Motion to Dismiss emolument covers profits from the Trump Hotel Relies heavily on friend of court brief filed by legal historians listing definition of emolument in all late 18th century dictionaries December 20, 2018: U.S. Court of Appeals for the 4th Circuit grants

Presidents emergency motion to halt trial court proceedings Sets expedited briefing schedule January 29, 2019: Clark Cunningham & Jesse Egbert file friend of court brief in support of neither party Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 18 Brief can be downloaded at: www.clarkcunningham.org/Law-Linguistics.html Oct 18, 2019

Cunningham-Egbert Meaning of Emolument 19 Emolument Cases Current Status DC & Maryland v Trump (Maryland) Amicus brief cited and discussed in subsequent briefs filed by both President and Maryland/DC July 11, 2019 Three-judge panel of the 4th Circuit Court of Appeals orders dismissal based on lack of standing Does not address meaning of emolument September 5, 2019 Maryland and DC file petition to have dismissal order reviewed by all 15 judges of the 4th circuit (en banc review)

Case may end up at U.S. Supreme Court Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 20 Senator Richard Blumenthal et al v. Trump Filed June 14, 2017 in U.S. District Court, 30 members of Senate D.C.

171 members of House of Representatives Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 21 Senator Richard Blumenthal, Democrat of Connecticut, said Democrats in Congress who have one of the pending lawsuits against Mr. Trump will now revise it to include the presidents plan to have the Group of 7 meeting at the Doral

Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 22 Emolument Cases Current Status Blumenthal v Trump (District of Columbia) Sep 28, 2018: Trial court denies Presidents motion to dismiss Cites and largely follows reasoning of Maryland trial court including reliance on 18 th century dictionaries Presidents asks trial court to permit immediate appeal

Cunningham-Egbert 4th amicus brief and working paper cited by both President and Congressional plaintiffs in briefs on this issue Trial court refuses Presidents request for immediate appeal July 19, 2019: Court of Appeals for the D.C. Circuit orders trial court to halt proceedings and allow appeal October 2019: briefs filed in the D.C. Court of appeals Issues will include meaning of emolument 10/8/19 Cunningham & Egbert file amicus brief Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 23

Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 24 Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 25 Corpus analysis of emolument

Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 26 If emolument only refers to profit from office or employment H1: Nouns preceding other emolument(s) in coordinated noun phrases (i.e. lists of nouns) will only refer to the narrow meaning Cats, dogs, and other animals *Cats, birds, and other dogs

Method: identify all nouns preceding other emolument(s) in coordinated NPs Results: Emolument often appeared (35 percent of the time) at the end of a coordinated noun phrase," preceded by other. Any previous nouns in the list are also emoluments. We can say dogs, cats, and other animals, but not cats, birds, and other dogs bounties, fees, contracts, clothing, privileges, places Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 27 Nouns preceding other emolument(s) in coordinated Noun Phrases

Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 28 If emolument only refers to profit from office or employment H2: Emolument(s) will require modification less frequently than the average noun (because the meaning is narrow and self-evident without modification) Method: percent of emolument(s) pre-modified by adjectives or postmodified by prepositional phrases Results:

Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 29 If emolument only refers to profit from office or employment H3: Emolument(s) will not be modified by adjectives related to official or government capacities (because these words would be redundant) *metal fork

Method: semantically classify attributive adjectives Result: Emolument frequently pre-modified by adjectives related to official or government capacities official federal public Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 30 Alexander Hamilton, 1793 I shall regret your final determination to resign at the same time, that

I should be wanting in candour were I to hold out to you the probability of any material increase of your present official emoluments. Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 31 If emolument only refers to profit from office or employment H4: Emolument(s) will not be modified when communicating that something had been received or accepted arising from an officials services.

Method: search for all cases of emolument within six words on either side of the words receive and accept Manually eliminate cases where emolument* was not the direct object Result: Most were pre-modified or post-modified by a linguistic structure that served to further specify the meaning of emolument 93% of the cases of receive emolument 77% of the cases of accept emolument Many cases specifically referred to receiving or accepting an emolument for services rendered pursuant to an office and yet added words to emolument to so indicate Oct 18, 2019 Cunningham-Egbert Meaning of Emolument

32 George Washington, 1798 I have finally determined to accept the Commission of Commander in Chief of the Armies of the United States I must decline that I can receive any emoluments annexed to the appointment Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 33

Conclusions Emolument was a common word in the founding era There is no evidence that there were two distinct senses of emolument Emolument had a broad, inclusive meaning The evidence suggests that revenue from hotel would have been considered an emolument Oct 18, 2019 Cunningham-Egbert Meaning of Emolument 34

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