More Evidence for the Judicial Duty of Clarity

In a previous post, I discussed my new paper, The Duty of Clarity. There I show that the original meaning of the Constitution requires a clear violation of its terms before invalidating legislation. But the Constitution also demands that judges use the ample interpretive methods available to clarify the precise meaning of our fundamental law. Both the obligations of clarity and clarification flow from the judicial duty, a duty that is an aspect of the judicial power granted under Article III of the Constitution.

My paper helps resolve the long standing debate about whether judges should defer to the legislature. Judges are empowered to use legal methods to clarify a constitutional provision, and if they can be made clear by these methods, the provision offers a basis to invalidate legislation. But if judges cannot disambiguate or eliminate vagueness, they have no authority to replace the legislature’s judgment with their own.

Since finishing a draft of the paper, I have come across one more powerful piece of evidence for this proposition. It is widely agreed among early Supreme Court justices that this duty of clarity exists and was binding on them. Nevertheless, I had not previously found any instance in which a justice claimed that the duty was the proximate cause of a refusal to hold legislation unconstitutional.

The case in which the duty of clarity appeared to be decisive was United States v. Ravara.  The question in this appellate case was whether a lower court could entertain a prosecution against a foreign counsel. Article III provides “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” The issue was whether jurisdiction was exclusive in the Supreme Court. The majority of the Court held it was not exclusive and thus the statute was not unconstitutional. While the opinions of the case were sparsely reported, Justice James Iredell recollected what was dispositive for the majority:

I think the principal reasons assigned by Judge Wilson and Judge Peters were that the prosecution was within the general act of Congress. . . That tho’ an act of Congress plainly contrary to the Constitution was void, yet no such construction should be given in a doubtful case; and that in this case the Constitution tho’ it said “the Supreme Court should have original jurisdiction,” yet not having said it should be also exclusive, it was not necessary to give such an interpretation to it. I think these were substantially the reasons.

This is an important new piece of evidence, because it shows that duty was more than theoretical but had real bite. Nevertheless, we should not forget that in the vast majority of cases in the early Republic, justices used the interpretive methods available to clarify the meaning of the Constitution sufficiently not to have to invoke the duty as a dispositive to their decision. Thus, the duty of clarity is in tension  with both some modern notions of “judicial engagement”(such as those that embrace construction), and some modern notions of judicial deference (such as those that embrace the view of James Bradley Thayer). But it is hardly surprising that original meaning does not always comport with modern notions that are dependent on jurisprudential and political theories that postdate the Founding Era.

Reader Discussion

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on December 20, 2015 at 21:06:52 pm

How does this relate to Marbury v. Madison in which the Court held that Section 13 of the Judiciary Act of 1789 is unconstitutional to the extent it purports to enlarge the original jurisdiction of the Court?

Also, is there really a duty of clarity where judges are considering the constitutionality of an act of Congress that would invalidate a state law? In other words, wouldn't the presumption that the state law is valid cancel out the presumption that the federal statute is valid?

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on December 21, 2015 at 10:08:35 am

How is it in tension with “judicial engagement”? Both seem to say the judges should try to really evaluate the meaning and not just defer.

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Devin Watkins
on December 21, 2015 at 12:09:12 pm

Mr. Watkins-- Thanks for you comment. I said in tension "with some modern notions of judicial engagement," not all. I was thinking of the view prevalent among some scholars that the judiciary can construct rather than interpret the Constitution when it is vague, as they believe it often is, filling the interstices with material derived from political theory. Although I discuss this point in the underlying paper, I will make it clearer in this post with a parenthetical.

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John O. McGinnis
on December 21, 2015 at 12:17:11 pm

Don't know if this will be helpful or just muddy the waters, but:

1) Could McGinnis "tension- judicial engagement" argument be a response to the particularities (as envisioned by some) of judicial engagement wherein engagement is defined as a a review not simply of text but one that is "informed by personal liberty"? Such an approach can lead to interesting conclusions.

Interesting item at todays Originalism Blog, spurred on by a piece from George Will. Here it is:


As for me, I would like to see Professor McGinnis's response to Devin Watkins' question as I do not desire, nor am I even remotely equipped to speak for the good Professor.

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on December 21, 2015 at 12:20:09 pm

Well, I guess the Professor answered!

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on December 22, 2015 at 12:11:33 pm

Professor McGinnis, In is important to note, that in regards to the duty of clarity, no Court has the authority to remove the necessary requirement for a marriage contract in order to accommodate persons who do not have the ability and desire to exist in relationship as husband and wife, thus changing both the letter and the Spirit of The Law and our Constitution.

Here is what Justice Kagan had to say in Yates v. United States:
"...assigning “tangible object” its ordinary mean- ing comports with noscitur a sociis and ejusdem generis when applied, as they should be, with attention to §1519’s subject and purpose. Those canons require identifying a common trait that links all the words in a statutory phrase. See, e.g., Graham County Soil and Water Conser- vation Dist. v. United States ex rel. Wilson, 559 U. S. 280, 289, n. 7 (2010); Ali, 552 U. S., at 224–226"... "But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. ‘Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.‘ Rodgers, 466 U. S., at 484. If judges disagree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the stat- ute Congress enacted with an alternative of our own design."

"There are three rules of language applied by the courts to assist them in interpreting statutes. The rules of language are referred to as intrinsic aids or internal aids. The three rules of languages are:

· Ejusdem generis (of the same kind)

· Expressio unius exclusio alterius, (the express mention of one thing excludes all others),

· And Noscitur a sociis (a word is known by the company it keeps and words must be read in context)"

Existing in relationship as husband and wife has been understood to be the definition of marriage from The Beginning as well as from the founding of our Nation. DOMA defined marriage in federal law as follows:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. 7.a

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