"In Defiance of Gifts" by Liam E. Cronan
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Touro Law Review

Touro Law Review

Authors

Liam E. Cronan

Abstract

Starting in 2017, a series of lawsuits against President Donald Trump grounded their arguments on a long-overlooked portion of the Constitution: the Foreign Emoluments Clause, which in its most basic form bans government officials from accepting gifts, or “emoluments,” from foreign entities. Until 2017, few courts or scholars had ever scrutinized this provision. But with Trump’s presidency and enduring reports of his foreign business dealings, this oft-shunned area of the law suddenly garnered the attention of courts and scholars alike. Because of a clear “lack of precedent” on this matter, federal judges soon parsed historical records to determine the Clause’s meaning. Their attempts resulted in a split among circuits and left open a series of questions about the Clause’s meaning. But one critical yet surprising source remained largely unmentioned: Dutch law. While some secondary sources intimate that a 1651 Dutch law may be the “likely” or “apparent” source of the Clause, no scholarship has attempted to substantiate this claim or analyze this potential source material. In bridging this gap, this article seeks to add a new historical perspective to this growing area of constitutional scholarship. It argues that the Framers first discovered this legal concept and its precise wording in the annals of Dutch law and, as such, Dutch law can serve as a critical source of understanding for the Clause. In so doing, this article will begin with a study of federal case law decided under the Clause and the importance these cases place on discerning its history. It will then turn to the origins of the Clause to understand how the Framers first discovered this legal concept in a 1651 Dutch statute and 1737 Dutch treatise, illustrating Dutch law’s influence on the Clause. Lastly, by conducting a robust textual analysis of the 1651 law and its interpretations through contemporaneous treatises and other surviving records, it will analyze how the Clause’s Dutch origins serve as a critical source of understanding for its meaning today. In all, this unexplored area of legal history will answer lingering questions about the Clause’s application and bear relevant implications on the scope of presidential powers today.

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