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The Legal U-Turn

Professors John McGinnis and Mike Rappaport, two of the ablest originalist scholars, have done readers a great service with their Liberty Forum essay on “the legal turn.” Their essay clarifies and elaborates a significant element of modern originalist scholarship and provides a nice corrective to previous efforts to advance the public meaning of the U.S. Constitution at the expense of its legal meaning.

It is important to recognize, though, that their claims may not do all that much work since, as I would like to suggest, the “legal turn” is little different from the previous turn to original public meaning (hence my nod to Charles Barzun in the title of this response[1]). Even if, moreover, there really are significant differences between legal and public meaning—and I think that will only be true in rare cases—it is hardly clear that a technical legal meaning ought to prevail in those cases.

This first claim of mine—that the legal turn is merely the same turn as the one from original intent to original public meaning—can be demonstrated by two related propositions. The first is that as a matter of original public understanding, the ratifying public in 1787-88 knew that the proposed Constitution included legal terms of art and fully expected that these terms of art would be construed legally. The second goes in the other direction: It was part of legal methodology at the time (and still is) to interpret statutes, contracts, and other legal instruments with their objective, reasonable, and public meanings, except when there were terms of art or other reasons to deviate from the objective and reasonable public meaning of a term. If both propositions are correct, then the legal turn is nothing but the same turn we took in the mid-1980s to original public meaning.

As for the first proposition, there is significant evidence that the ratifying public understood that the Constitution contained legal terms of art that would be construed accordingly. For example, some Anti-Federalists had argued in the state ratifying conventions that the prohibition on ex post facto laws would encompass retroactive civil as well as criminal laws. Numerous Federalists at several of the ratifying conventions explained that ex post facto was a term of art that referred only to retroactive criminal, not civil, laws. This was ultimately the majority view in several conventions.[2] The public, in other words, was aware of, and debated, the legal terms in the Constitution. Although some Anti-Federalists were concerned that these terms of art would be construed with a public meaning—for example, a meaning that would include retroactive civil laws under the umbrella of ex post facto laws—the general public understanding was that legal terms would be construed legally.

As for the second, equally important proposition, public meaning was itself part and parcel of legal interpretation. William Blackstone wrote that “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law.”[3]  (Emphasis in original.) And more specifically, “words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use.”[4] After all, most laws aren’t written in legal terms of art. Most are just written in plain language. To be sure, the Constitution has a large proportion of legal terms of art, but it has a lot of plain English, too.

Perhaps for these reasons, McGinnis and Rappaport are somewhat vague on what to do when public and legal meanings diverge. They write that one legal interpretive rule provides that terms having “both an ordinary and a legal meaning can be given, depending on context, their legal meaning.” Now that is surely right. But what context? If such a term will not always be given legal meaning but may sometimes be given public meaning, then is the legal turn that much more determinate than the turn to public meaning?

What’s more, I would say that on the rare occasion when the public meaning diverges from the legal meaning, the public meaning probably ought to prevail. Consider the following example. In 1840, Congress debated whether its power to make uniform bankruptcy laws included the power to provide for debtor relief. The problem was that in England, bankruptcy and insolvency were legal terms of art—and the former referred only to the body of law existing for the protection of creditors, the latter to the body of law existing for the relief of debtors. The U.S. Constitution, of course, confers power on Congress only over bankruptcy and not insolvency. Thus Senators John C. Calhoun of South Carolina and Richard Henry Bayard of Delaware argued that federal lawmakers did not have the power to enact debtor relief because the sense of the term “bankruptcy” was to be taken from its legal history.

Senator Daniel Webster of Massachusetts disagreed. The ordinary public understanding is what counts. The term in question is, said Webster, to be taken in its “common and popular sense—in that sense in which the people may be supposed to have understood it when they ratified the Constitution.”[5] Congress agreed and enacted the insolvency provisions. Although the statute was soon repealed, when Congress subsequently enacted bankruptcy laws, its power over insolvency was never again questioned.

Webster’s point makes intuitive sense, and is in line with what several Framers thought when it came to interpreting the Constitution. As James Madison wrote to Thomas Jefferson: “The legitimate meaning of the [Constitution] must be derived from the text itself,” and external evidence “must be not in the opinions or intentions of the Body which planned and proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it received all the authority which it possesses.”[6]

Why must that be the case? Because the approbation of the people was a necessary ingredient of the Constitution’s legitimacy—was required, that is, to bring it into effect. As I have noted  elsewhere, Madison’s argument in Federalist 40 was that without the ratification process, the Constitution would be nothing; whether the Constitution is good or republican or protects natural rights does not alone make it binding. It still needs the assent of the people. The proposed Constitution is “of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed.” The Constitutional Convention bore in mind that the “plan to be framed and proposed was to be submitted to the people themselves, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities.” (Emphasis in original.)

James Wilson agreed. In response to charges that the Convention exceeded its authority because it was violating the amendment procedures under the Articles of Confederation, Wilson said: “I think the late Convention has done nothing beyond their powers.” The Constitution “is laid before the citizens . . . to be judged by the natural, civil and political rights of men. By their fiat, it will become of value and authority; without it, it will never receive the character of authenticity and power.”[7]

The legal turn, in sum, probably does not portend originalism’s Third Wave. It certainly clarifies and elaborates a key element of originalist thought and provides a necessary corrective to faulty or mistaken previous scholarship. But properly understood, the public meaning of the text of the Constitution usually subsumes the legal meaning, and vice versa; and where the two do diverge in a profound way, it is not at all clear that the legal meaning ought to prevail.

[1] Charles Barzun, “The Positive U-Turn,” Stanford Law Review 69 (2017), 1323.

[2] See, for example, Evan C. Zoldan, “The Civil Ex Post Facto Clause,” Wisconsin Law Review (2015), 727, 739-40.

[3] William Blackstone, Commentaries on the Laws of England in Four Books [1753], Volume 1, Online Library of Liberty, p. 57.

[4] Ibid.

[5] David P. Currie, The Constitution in Congress: Democrats and Whigs, 1829-1861 (University of Chicago Press,  2005), p. 132.

[6] Quoted in David P. Currie, The Constitution in Congress: Descent into the Maelstrom (University of Chicago Press, 2005), p. 237, note 58.

[7] James Wilson’s statement at the Pennsylvania Ratifying Convention (December 4, 1787) is quoted in Daniel A. Farber and Suzanna Sherry, A History of the American Constitution, Second Edition (West Publishing Company, 2005).

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