Robert G. Natelson

The Original Meaning of ‘Emoluments’ in the Constitution

This Article explores the original meaning of the word “Emolument(s)” in the Constitution. It identifies four common definitions in founding-era political discourse. It places the constitutional use within its context as part of a larger reform movement in Britain and America and as driven by other historical events. The Article examines how the word was employed in contemporaneous reform measures, in official congressional and state documents, in the constitutional debates, and in the constitutional text. The author concludes that the three appearances of “emoluments” in the Constitution had a common meaning, which was “compensation with financial value, received by reason of public employment.”

What the Constitution Means by 'Duties, Imposts, and Excises' — And 'Taxes' (Direct or Otherwise)

This Article recreates the original definitions of the U.S. Constitution’s terms “tax,” “direct tax,” “duty,” “impost,” “excise,” and “tonnage.” It draws on a greater range of Founding-Era sources than accessed heretofore, including eighteenth-century treatises, tax statutes, and literary source, and it corrects several errors made by courts and previous commentators. It concludes that the distinction between direct and indirect taxes was widely understood during the Founding Era, and that the term “direct tax” was more expansive than commonly realized.The Article identifies the reasons the Constitution required that direct taxes be apportioned among the states by population. It concludes that the Constitution’s “three-fifths” formula was a response to certain economic facts about slavery, but that the underlying decision to apportion had little or nothing to do with slavery.Finally, the Article reviews the Supreme Court’s holding that the Affordable Care Act’s penalty for not acquiring insurance is a tax but not a direct tax, and concludes that if the penalty was a tax, it was direct.

The Origins and Meaning of 'Vacancies that May Happen During the Recess' in the Constitution's Recess Appointments Clause

There has been longstanding uncertainty about the meaning of “the Recess” and “Vacancies that may happen” in the Constitution’s Recess Appointments Clause. This Article finds that both “the Recess” and close variants of “Vacancies that may happen” were standard terms in Founding-Era legislative practice, and appear copiously in legislative records. Those records inform us that “the Recess” means only the inter-session recess and that a vacancy “happens” only when it first arises.