The rationale for what is now called “originalism” has chiefly to do with the legitimacy of the 1787 Constitution.
Neil Goldfarb has written a blog post commenting on our paper, The Language of the Law and the Constitution. The gist of his post is that the law is not a language in any of four categories of language that he recognizes. But Goldfarb himself notes that words often have shades of meaning: they cannot be confined to a procrustean bed of meanings. There is no reason to take his list as exhaustive.
Most significantly, Goldfarb fails to address our argument that the language of the law is a technical language. There is little doubt that there are technical languages: many authors have recognized them and many authors have maintained that the language of the law is one such technical language. Goldfarb, however, never explains how he would account for such languages. To be persuasive, he must provide such an account and then explain why our arguments about the language of the law do not follow under his account.
Our article makes various claims about the technical language that is the language of the law. First, the language of the law contains many technical terms. Some of those terms do not exist in ordinary language, such as Letters of Marque or Reprisal, and others have both a technical legal meaning and an ordinary language meaning, such as due process or cruel and unusual.
Just as the language of the law may have a distinctive vocabulary so it may it have distinctive legal interpretive rules. In the article, we present two accounts of how the interpretive rules might be derived from the language of the law. Under one account, legal interpretive rules are simply part of the technical language of the law. They are part of the rules that lawyers follow when interpreting legal texts. Goldfarb argues that legal interpretive rules are followed because they are promulgated by lawgivers. But that is not necessarily the case. Once a rule becomes widely followed, it may come to be followed as part of how lawyers communicate. A rule might have legal authority in one context, but not in another, and be followed in the latter context as a linguistic matter. For example, a rule of statutory interpretation might be binding under the common law, but not under the Constitution, because the common law does not apply to it, yet still be followed as simply the way lawyers communicate in the language of the law.
Under a second account, legal interpretive rules are part of the context of statements made in legal documents. Such contextual matters are associated with the part of philosophy of language known as pragmatics. If lawyers typically follow the legal interpretive rules when interpreting legal documents, then those rules are part of the context of statements made in those documents and should be followed unless the author indicates otherwise.
We also note that not only are legal interpretive rules followed in the language of the law, but ordinary interpretive rules are followed in ordinary language. Goldfarb’s argument that legal interpretive rules cannot be linguistically compared to ordinary interpretive rules depends on a single claim: “The cognitive processes involved in comprehending an utterance or a text—which is to say, the processes that McGinnis and Rappaport call the “interpretive rules” of ordinary language—occur automatically, effortlessly, and, for all practical purposes, instantaneously. Moreover, these processes occur below the level of conscious awareness and inaccessible to introspection.”
But Goldfarb is mistaking a characteristic that sometimes accompanies ordinary interpretive rules (effortless cognitive processing) with an essential characteristic. Sometimes ordinary language documents require interpretation and the application of the interpretive rules are discussed and disputed. In law, this occurs much more often, because so much turns in the law on the precise meaning of texts. Moreover, because law is a more a written than a spoken language, there is more time for deliberation in applying rules just as there is in giving a precise meaning to its technical terms.
But even if ordinary interpretive rules were effortless while legal interpretive rules were not, that would not prevent legal interpretive rules from being part of the language or its context. In both cases, they have the similar function of telling the reader how to interpret the language. The effortlessness is largely besides the point.