David Weisberg comments:
John Mikhail’s paper, “The Definition of 'Emolument' in English Language and Legal Dictionaries, 1523-1806”, is a quintessential, paradigmatic illustration of the illogic that flourishes when one ignores what I have identified in my paper, “Originalism is Dead…Long Live Identicalism”, as the Paradox of Originalism.
The Paradox can be stated thusly: If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.
Prof. Mikhail clearly believes that the relevant definition of “emolument” can be determined only by referring to dictionaries published from 1523 to 1806; he concludes that the word has a “broad definition” making it roughly synonymous with: “profit,” “gain,” “advantage,” or “benefit.” But apparently he never considers whether those four words have the same meaning today as they had in the period from 1523 to 1806. If he did consider that question, he would certainly realize that the method he employs to determine the time-dated original meaning of “emolument” leads inexorably to an infinite regress which cannot yield any result.
There is no reason whatsoever to presume that the meaning of “emolument” in 1788 is any different from the meaning it has today. If one presumes, without any particular reason, that any word in the Constitution has a time-dated original meaning, one effectively embraces the Paradox of Originalism and all the illogic it generates.
Posted at 9:47 AM