ArtI.S9.C8.2 Historical Background on Foreign Emoluments Clause

Source: Congress.gov
Type: congressional-record

Source Text

Article I, Section 9, Clause 8:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, 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.

The Foreign Emoluments Clause’s basic purpose is to prevent corruption and limit foreign influence on federal officers. At the Constitutional Convention, Charles Pinckney of South Carolina introduced the language that became the Foreign Emoluments Clause based on the necessity of preserving foreign Ministers & other officers of the U.S. independent of external influence.1 The Convention approved the Clause unanimously without noted debate.2 During the ratification debates, Edmund Randolph of Virginia, a key figure at the Convention, explained that the Foreign Emoluments Clause was intended to prevent corruption by prohibit[ing] any one in office from receiving or holding any emoluments from foreign states.3

The Foreign Emoluments Clause reflected the Framers’ experience with the then-customary European practice of giving gifts to foreign diplomats.4 Following the example of the Dutch Republic, which prohibited its ministers from receiving foreign gifts in 1651,5 the Articles of Confederation provided: any person holding any office of profit or trust under the United States, or any of them shall not accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.6 The Foreign Emoluments Clause largely tracks this language from the Articles, although there are some differences.7

During the Articles period, American diplomats struggled with how to balance their legal obligations and desire to avoid the appearance of corruption, against prevailing European norms and the diplomats’ wish to not offend their host country.8 A well-known example from this period, which appears to have influenced the Framers of the Emoluments Clause,9 involved the King of France’s gift of an opulent snuff box to Benjamin Franklin.10 Concerned that receipt of this gift would be perceived as corrupting and violate the Articles of Confederation, Franklin sought (and received) congressional approval to keep the gift.11 Following this precedent, the Foreign Emoluments Clause prohibits federal officers from accepting foreign presents, offices, titles, or emoluments, unless Congress consents.12

The Foreign Emoluments Clause thus provides a role for Congress in determining the propriety of foreign emoluments. Under this authority, Congress has in the past provided consent to the receipt of particular presents, emoluments, and decorations through public or private bills,13 or by enacting general rules governing the receipt of gifts by federal officers from foreign governments.14 For example, in 1966, Congress enacted the Foreign Gifts and Decorations Act, which provided general congressional consent for foreign gifts of minimal value, as well as conditional authorization for acceptance of gifts on behalf of the United States in some cases.15

Several Presidents in the nineteenth century—such as Andrew Jackson,16 Martin Van Buren,17 John Tyler,18 and Benjamin Harrison19—notified Congress of foreign presents they received, and either placed the gifts at Congress’s disposal or obtained consent for their acceptance. Other nineteenth century Presidents treated presents they received as gifts to the United States, rather than as personal gifts.20 Thus, in one instance, President Lincoln accepted a foreign gift on behalf of the United States and then deposited it with the Department of State.21 In the twentieth century, some Presidents sought the advice of the Department of Justice’s Office of Legal Counsel on whether acceptance of particular honors or benefits would violate the Emoluments Clauses.22

Events Citing This Source

Event	Date	Category
Emoluments Clause Violations	2017 ongoing	Abuse of Power

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