fbpx

The Legal Turn

Even as originalism has gained greater acceptance, its nature has remained contested. One of the most important matters under dispute centers on whether to read the Constitution as a legal text. Some have contended that it should be read as if it were a document written in ordinary language that is wholly transparent to laypeople. Others say it must be read as a legal document.

The most prominent modern originalist—the late Justice Antonin Scalia—straddled this debate.  Sometimes he argued that the Constitution should be read in ordinary language. But in judicial opinions and other places he used legal methods and language to read the Constitution, as he did when he construed the Confrontation Clause by looking to what the right of confrontation meant at common law.

This issue is not scholastic, but of great consequence to the operation of our fundamental law.

Take the Due Process Clause. In ordinary language, the phrase means the process that is due or something akin to fair procedure. This meaning is indeterminate. But due process is a term that had been used in law before the enactment of the Constitution. As recent scholarship has shown, reading it legally provides a more precise meaning. The above-mentioned Confrontation Clause is another example. Its language conferring the right of the accused to be “confronted with the witnesses against him” would be unclear if understood with its ordinary meaning. But the common law meaning employed by Justice Scalia is clearer and more precise.

Both the accuracy and determinacy of the Constitution are at stake in this debate. If the Constitution was written in legal language but we read it as having been written in ordinary language, we will misinterpret its meaning. Moreover, critics of originalism often argue that the Constitution’s terms are vague or unclear. While non-legal writing often has those qualities, lawyers have read legal documents over centuries to promote greater clarity and precision.

This Liberty Forum essay will show that originalism today is taking an essential turn—the legal turn—that reads the Constitution as a legal text and thereby renders the document more accurately and precisely. We begin by putting the legal turn in the context of other developments in the history of modern originalism. We then discuss various new theories of originalism (beginning with our own original methods originalism) that read the Constitution using legal methods. Finally, we show that much of the best recent scholarship interpreting particular provisions explicitly or implicitly accepts the legal turn as the foundation for fixing the meaning of constitutional provisions.

Setting the Stage for the Legal Turn  

The basic idea of originalism is relatively simple. As an interpretive theory, originalism is the view that the Constitution’s meaning was fixed at the time that it was enacted in 1787. Normatively, it is the view that this original meaning should largely be followed today. Questions of when it should not be followed, such as the degree to which it should yield to precedent, remained disputed, but are outside the scope of this essay.

Despite the apparent simplicity of its core interpretive idea, originalist theory has gone through major changes in the years since it was reintroduced in the 1970s as a theory of constitutional interpretation. In the 1970s, originalism was usually described in terms of the original intent of the Framers. And the principal normative justification of the theory was the need to restrain judges who, in the absence of originalism’s discipline, would substitute their own values for the Constitution’s meaning.

The original intent version of originalism was criticized on a variety of grounds, including the difficulty of discerning the intent of numerous Framers or ratifiers and the claim that interpretive intentionalist methods were rejected at the time of the Framing. Partly as a result of this criticism, defenders of originalism turned to an originalism of public meaning rather than of original intent. That public meaning was constituted by how a reasonable person would understand the constitutional text, not by the intent of the Framers or ratifiers.

But public meaning originalism itself seemed to have a weakness, that of being indeterminate. According to this criticism, public meaning did not yield clear results because the public meaning of language was ambiguous or vague. Terms like due process were thought to be vague and thus incapable of fixing a determinate meaning.

Consequently, some scholars turned to a theory styled the New Originalism in part as a response to this new criticism.[1] Its advocates sharply distinguished between interpretation and construction. Interpretation sought the meaning of a provision and therefore insofar as the meaning was clear, originalism should follow it. But the New Originalists conceded that some of the Constitution was indeterminate and had to be constructed, rather than interpreted. In this indeterminate area—rather archly referred to as the “construction zone”—judges had to rely on something other than the meaning of the text. Under this view, the ordinary meaning of the Due Process Clause might require fair procedures, but if the meaning did not specify what procedures were fair in what circumstances, the judge might have to decide the matter based on something other than meaning.

The New Originalism was in turn subject to substantial criticism. Its detractors said it gave up original meaning’s promise of constraining judges because legal decisions in the construction zone were not determined by that meaning. Nor did the New Originalists, according to critics, deliver the rule-of-law values associated with originalism because they offered no agreed upon method of filling the construction zone.

Proponents of the Legal Turn

The legal turn responds to this critique by using the majestic resources of the law to interpret and construct the Constitution. While there are different theories that jointly constitute the legal turn, these theories have one main thing in common: they all use legal methods either to interpret or construct the Constitution. Thus, the legal turn has resulted in a more legalized Constitution and one that will often strengthen the constraints on judicial discretion.

Original methods originalism, the view embraced by the authors of this essay, was an early example of the legal turn.[2]  Original methods provides a theory of what constitutes the original meaning of the Constitution. It argues that that the meaning of a document such as the Constitution should be determined based on the interpretive rules that would have been deemed applicable to a document of that kind.

In exploring the Constitution, we argue that the Constitution was written in the language of the law—the specialized language that lawyers use to speak and write about the law. This language employs numerous legal interpretive rules to read a legal document. Many of the key questions that arise about constitutional interpretation—such as whether intent or text should be its focus—are answered based on the content of the legal interpretive rules in place at the time of the Constitution’s enactment. There are various types of these interpretive rules. One group includes canons of legal of interpretation, such as the rule of lenity or the rule against implied repeals.[3] Another group includes closure rules that govern how to interpret an ambiguous provision. Such closure rules would themselves make for a more determinate meaning of the Constitution.

Original methods would have an enormous impact on how one understands the meaning of the Constitution. We have shown that there may be hundreds of terms in the Constitution that either are patently legal (such as Letters of Marque and Reprisal) or have at least a legal meaning in addition to their ordinary meaning (such as confrontation). This large number of terms supports our claim that the Constitution is written in the language of the law. It also increases the determinacy of the Constitution, because the legal meaning of terms often have more precise meanings.

One legal interpretive rule is key here. It is the rule that says terms that have both an ordinary and a legal meaning can be given, depending on context, their legal meaning. This is significant, because the view that understands the Constitution as written in ordinary language would not interpret these terms as having a legal meaning. Overall, original methods offers a view of the Constitution as a document infused with legal meanings.

Other theorists have joined the legal turn in the last few years. William Baude and Stephen Sachs offer a very different version of the legal turn.[4] Like us, they believe that originalist theories have often not captured the nature of legal interpretation. But they do not argue that the problem is principally that the legal meaning of the Constitution has been neglected in favor of the ordinary meaning. Instead, they contend that the process of interpretation is not exhausted by fixing the meaning of the Constitution. For them, what is necessary to round out interpretation is not mainly a fuller and richer account of meaning in legal documents, but instead a distinctive law—what they call the law of interpretation.

This law not only governs the interpretation of the Constitution’s meaning but also implements the Constitution when meaning runs out. Thus, while original methods regards interpretive rules as helping to constitute the meaning of the document, Baude and Sachs see similar rules as having the force of law and doing important work in filling out the construction zone. For example, under original methods, the rule of lenity might be applied to show that the meaning of treason in the Constitution must, in any case of uncertainty, be read narrowly to favor the defendant. But if Baude and Sachs recognized lenity as part of the law of interpretation, they would apply it in the construction zone. Nevertheless, because they believe that such rules of law are binding, the resulting constitutional law would likely be quite similar to that fashioned through original methods originalism.

Jeffrey Pojanowski and Kevin Walsh also are part of the legal turn because they argue that legal conventions, like those employed by Joseph Story, are part of a “law of interpretation” needed to interpret the document.[5] When there is sufficient consensus on what these conventions are, they will contribute to the Constitution’s fixed meaning. But when the Constitution’s meaning cannot be clarified, another kind of legal convention in their view—that of “liquidation”— settles the meaning through a series of  decisions by judges or other government officials that choose one of the permissible meanings. Liquidation is obviously a distinctively legal process.

More recently, Randy Barnett and Evan Bernick  argue that the fiduciary duty of judges requires them to follow certain rules to implement the Constitution in the construction zone when meaning runs out.[6]  In particular, these rules focus on the structure and purpose of the Constitution. While Barnett and Bernick deny that the Constitution generally should be interpreted as having a legal meaning, their fiduciary duty argument does represent part of the legal turn. Arguments based on structure and purpose are clear examples of legal methods of interpretation. Moreover, Barnett and Bernick argue that these structure-and-purpose methods would operate to constrain the discretion of judges.

Jack Balkin’s recent work also appears to be an example of the legal turn in the construction zone. Balkin recognizes that his account of constitutional meaning is a thin one, potentially leaving constitutional implementers with few limits on their discretion. He argues, however, that constitutional cases in the construction zone should be guided by what he calls topics— modalities of constitutional construction—like structure and purpose, historical development, and consequences. Significantly, Balkin views these modalities as governed by positive law in the sense that judges properly use them to implement the Constitution. For Balkin, these modalities can change over time. But the correct modalities at any one time must be those that the law recognizes.

The most popular manifestation of the recent legal turn in originalism is Reading Law: The Interpretation of Legal Texts (2012) by the late Antonin Scalia and Bryan Garner. Scalia and Garner suggest that the interpretation of law must be guided by canons of interpretation, and they offer an analysis of 57 such rules. Many are clearly legal, such as the rule of lenity, the absurdity rule, and the rule that implied repeals are disfavored. The book understands these legal rules as part of the enterprise of legal interpretation and specifically denies the distinction between interpretation and construction.

The Legal Turn in Scholarship of Particular Provisions

As well as responding to problems noted by the New Originalism’s critics, the legal turn provides a basis for modern legal scholarship that depends on reading the Constitution in a legal idiom rather than in ordinary language. Previously, some theorists have contended that the Constitution is simply a product of ordinary language, even while many practitioners of originalism used the legal meaning of terms to arrive at their conclusions.

Much of the best modern originalist scholarship heavily depends on the legal turn. Most obviously, scholars read terms in the Constitution as legal terms and investigate legal history to fix their meaning.

For, instance, Nathan Chapman and Michael McConnell interpret the term “due process” in the Fifth and Fourteenth Amendments as placing into the Constitution certain common law understandings.[7] As a result, they understand it to prevent the legislature from exercising judicial power or violating common law procedural protections.

Ryan Williams adopts a competing legal interpretation of the Due Process Clause in the Fourteenth Amendment. He argues that over a score of antebellum court decisions abandoned an essentially procedural understanding in the years leading up to Reconstruction. Thus, the meaning of the clause in 1868 would have conformed to that more substantive, legal understanding of due process.[8]

Michael Ramsey relies on the legal turn when he argues that a natural born citizen is a person who was a citizen under the laws at the time of his birth.[9] He bases this interpretation on reading the term “natural born citizen” to mean what a related term meant under English law at the time of the Constitution’s enactment. Under English law, someone born outside of the country could be a “natural born subject” if that person were so classified under the law at the time of his or her birth.

The legal turn is also at the heart of reevaluating the meaning of the Constitution’s Necessary and Proper Clause. While an ordinary reading of the clause may make it seem vague, a recent book argues that its concepts have clear foundations in 18th century Anglo-American law.[10]  For instance, one of the authors uses fiduciary law to conclude that the incidental powers authorized by the clause had to be less than the principal powers specifically authorized by the Constitution.[11]

The use of legal interpretive rules to interpret the meaning of the Constitution has also reflected the legal turn. These rules were those deemed applicable to the Constitution at the time of its enactment. Evidence for some of these legal interpretive rules is found in the Constitution itself.  Evidence for others is found in the legal practice of the time.

For example, the Supremacy Clause makes implicit reference to legal interpretive rules when it states that supreme law should be followed, “any Thing in the law or the Constitution of the states notwithstanding.” Under traditional law, according to Caleb Nelson, this phrase invokes a legal interpretive rule that blocks the use of another longstanding interpretive rule that may otherwise have been applied. That prior legal interpretive rule was the rule against implied repeals.[12] If that rule had been applied, state law would have to have been grossly inconsistent with federal law for the Supremacy Clause to displace state law. But this language in the Supremacy Clause tells interpreters not to try to harmonize federal and state law to preserve state law, but instead to displace state law if there is a simple conflict between a federal and a state law when the two are fairly read together. It is appropriate that the Supremacy Clause, which declares that the Constitution is law, turns out itself to have a pervasively legal meaning.

Other scholars have also used legal interpretive rules to interpret constitutional provisions. John Stinneford, for instance, uses a legal interpretive rule at the time of enactment, noscitur a sociis, to argue that “cruel” in the phrase “cruel and unusual punishments” bans punishments with disproportionate effect rather than punishments with an inappropriate intent, because “cruel” comes in an Eighth Amendment clause that also bans “excessive” fines and “excessive” bail, terms that speak to disproportionate effect.[13]

Conclusion

The legal turn is important. It has rationalized what has already been an increasingly common practice of originalist scholars in resorting to the legal rather than ordinary meaning. It has made originalism more determinate than many new originalists and almost all of their critics believed possible. And it allows for more accurate constitutional interpretations to the extent that the Constitution employs language with a legal meaning.

To be sure, the legal turn accomplishes this in one of two possible ways: either by often interpreting the Constitution in accord with its legal meaning, or by following legal methods within the construction zone. Our own version of the turn involves focusing on constitutional interpretation—using legal language and methods to fix the Constitution’s meaning. Because legal language and methods are designed in part to provide more precision to language and interpretation than ordinary language and non-legal methods, the meaning of the document becomes more determinate and the construction zone is narrowed—to the point, perhaps, of being eliminated. Baude and Sachs, in contrast, make the legal turn a matter of legally determined construction. They do not seek so much to reduce or eliminate the construction zone as to put it within the bounds of law—law that itself can be traced to the Framing.

While there is more to say about this disagreement that divides the proponents of the legal turn, the turn itself transcends these differences. However one resolves them, the turn is having an important effect on originalism, allowing it to more accurately and determinately render our fundamental law. Given these achievements, the turn should take its place alongside the move from original intent to public meaning as one that has redirected and improved originalism.

[1] While we use the term “the New Originalism,” we do so reluctantly, since it is misleading. It suggests that there was only one new form of originalism, while there have been in fact several different new theories.

[2] John O. McGinnis and Michael B. Rappaport, “Original Methods Originalism: A New Theory of Interpretation and the Case against Construction,” Northwestern Law Review 103 (2009), 751, 752.

[3] John O. McGinnis and Michael B. Rappaport, “The Constitution and the Language of the Law,” William and Mary Law Review (2018) (forthcoming).

[4] William Baude and Stephen E. Sachs, “The Law of Interpretation,” Harvard Law Review 130 (2017), 1079.

[5] Jeffery A. Pojanowski and Kevin C. Walsh, “Enduring Originalism,” Georgetown Law Journal 105 (2016), 97.

[6] Randy Barnett and Evan Bernick, “The Letter and the Spirit: A Unified Theory of Originalism,” https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3049056.

[7] Nathan S. Chapman and Michael W. McConnell, “Due Process as Separation of Powers,” Yale Law Journal 121 (2012), 1672, 1677.

[8] Ryan C. Williams, “The One and Only Substantive Due Process Clause,” Yale Law Journal 120 (2010), 408, 411-12.

[9] See Michael D. Ramsey, “The Original Meaning of ‘Natural Born,’ ” https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=224466 at 3.

[10] Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, and Guy I. Seidman, The Origins of the Necessary and Proper Clause (Cambridge University Press, 2010).

[11] Ibid., p. 119 (in the chapter written by Robert G. Natelson).

[12] Caleb Nelson, “Preemption,” Virginia Law Review 86 (2000), 225, 246-248.

[13] See John Stinneford, “The Original Meaning of ‘Cruel,’ ” Georgetown Law Journal 105 (2017) 441, 444.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on April 02, 2018 at 11:11:01 am

The Constitution emerged from the Philadelphia Convention as merely a proposal. It gained its authority from ratification by the people in the various states. It should be their understanding that is decisive, as James Madison himself argued. The legal turn seems, at least to me, as an attempt to avoid judicial discretion in constitutional interpretation rather than an attempt to determine the Constitution's true meaning. Language that is general and/or expansive should not be "tamed".

read full comment
Image of Alan Tarr
Alan Tarr
on April 03, 2018 at 10:35:44 am

That has all the clarity, concision and explication that an excellent summary of a complicated subject should contain.
I've learned something valuable.

Thank you.

read full comment
Image of timothy
timothy
on April 03, 2018 at 11:01:48 am

Reviewing Madison's "Virginia Report" [7 January] 1800, it seems clear Madison would have been horrified at the idea of using "the whole code [the common law of England] , with its incongruities, barbarisms, and bloody maxims . . ." in the construction zone when construing any part of the Constitution.

The "legal turn" strikes me as a step backwards, not forward.

read full comment
Image of EK
EK
on April 03, 2018 at 15:44:23 pm

From Bork to Meese to Scalia (and now Thomas,) originalism's version of Tinker to Evers to Chance, may have been the biggest double play in the history of the Constitution in the Supreme Court. It cleared the bases both of Woodrow Wilson's Darwinian constitutional organicism and Justice Brennan's active interpretive indulgence. So that recently even Justice Stevens in his (ongoing) war on the Second Amendment denied the judiciary's power to make up the constitution's gun right (Brennan had a fit in Purgatory) and fought originalism on its own terms (losing for now.)

Yet, interminable disagreement, far more now than then when Bork and Meese had the appearance of simplicity, seems to exist among legal scholars, judges and the appellate bar over what that double play means for interpreting the constitution's text.

The "legal turn'' seems yet another accretion to one of the myriad expanding dikes of originalism, not an erosion of any of the walls that separate originalists one from the other.

But a) given the prominence of both lawyers among its authors and non-lawyers among its ratifiers and the constitution's abundance of both legal AND common language (non-legal, often politically understood) it does seem reasonable b) to interpret the words of the "legal portions" of the constitution in accordance with their legal understandings of the time and the non-legal language of the constitution in accordance with its common understanding at the time.

This, of course, would further complicate originalism and render it, perhhaps, as divisive a topic nowadays as "connservatism."

read full comment
Image of timothy
timothy

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.