Originalist Scholarship Relying on the Language of the Law–Part I

We have recently written a paper arguing that the Constitution is written in the language of the law. In particular, the language of the Constitution includes terms, like “Bill of Attainder,” that are patently technical, and terms, like “good Behavior,” that are latently so in that they have both an ordinary and legal meaning but are better interpreted according to the latter. It also includes legal interpretive rules, including those that tell readers when to understand a term in its legal sense or its ordinary meaning sense.

The Constitution’s legal language is significant. Theoretically, it shows that original methods originalism is the correct form of originalism, because the Constitution’s legal interpretive rules are crucial to cashing out its meaning. Practically, the richness of its idiom provides resources to address otherwise unresolvable interpretive questions.

Striking confirmation of our thesis comes from modern originalist scholarship.  Much of the best of such work depends on reading the Constitution as written in the language of the law and is inconsistent with reading it as written in ordinary language. In this post and the next we will provide some examples.

John Stinneford has provided a new interpretation of the Eighth Amendment by reading the Clause in the language of law.  The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  Stinneford argues that “unusual” means “against immemorial usage”—a common law concept. The use of this legal meaning resolves any ambiguity that would exist if the term were read in ordinary language, in which “unusual” would more likely suggest evaluating a punishment against current norms rather than past norms.

Stinneford also shows that the term cruel is ambiguous if viewed from an ordinary language perspective, because it could apply to cruelly disproportionate punishment or to punishment done with cruel intent. He again uses the legal history of the term to show that its legal meaning was the former. He also uses a legal interpretive rule, noscitur a sociis, to argue that disproportion is the more appropriate interpretation of cruel, given that term comes in a clause that also bans “excessive” fines and “excessive” bail, terms themselves that focus on disproportionate effect. He shows that this interpretive rule existed at the time of the Bill of Rights. Thus, his analysis not only turns on the language of the law, but on the use of a specific legal interpretive rule that was applied to legal language at the time of the Clause’s enactment.

Scholars have recently tried to discover the original meaning of the Due Process Clause by giving the Clause its legal meaning rather than its ordinary meaning. Like Stinneford’s reading of Cruel and Unusual Punishment,  Nathan Chapman and  Michael McConnell interpret the term “due process” as placing into the Constitution certain common law understandings. As a result, they understand it as preventing the legislature from exercising judicial power or violating common law procedural protections.  Ryan Williams adopts a different interpretation of the Due Process Clause, but he also embraces the legal meaning of the Clause.  Williams maintains that the Due Process Clause changed meaning prior to the 14th Amendment.  He argues that over a score of antebellum court decisions abandoned an essentially procedural understanding and understood the Clause in a more substantive way.  Those legal decisions established a new legal meaning for the Clause.  Indeed, it seems unlikely that the ordinary meaning of due process would have changed during this period.

In our next post, we will provide some more examples of excellent recent originalist scholarship that relies on the language of the law.

Reader Discussion

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on July 31, 2017 at 00:47:02 am

I have been arguing this for decades. See http://constitution.org/cons/constitu+.htm

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Jon Roland
on July 31, 2017 at 10:04:34 am

When I was in law school I hit on the same basic idea; the Committee of Detail that wrote the majority of the proposed Constitution was 4 lawyers and 1 merchant. The legal profession seems to have made up a larger percentage of members of the various ratification committees than any other profession. Thus it seems almost intuitive that those engaged in a writing and evaluating the proposed Constitution would fall back on their training in Blackstone, Coke, et. all to understand the issues involved.

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D.F. Lickiss
on July 31, 2017 at 12:21:14 pm

Of course, all this depends upon the assumption that the revolutionary electorate were by and large stone ignorant of the law and were unable to distinguish plain language from terms of legal art. That assumption is completely untenable.

In "Ratification" (2011), Pauline Maier shows that the revolutionary electorate were quite sophisticated with respect to the common law and statutory law (see, e.g., pp. 154-90, dealing with the Massachusetts convention). The same was true in the other conventions - the yeoman farmers had a very good collective grasp on what the Federalists were trying to pull off and their objections and their reasons reveal a good understanding the legal terms being used.

Colonial history shows clearly that the citizens had become quite used to sitting on juries, framing their own complaints and defending themselves against civil and criminal actions over the 178 years between 1630-1789.

For example, the sense of "cruel and unusual" was well expressed in ¶ 46 of the Massachusetts Liberties of 1641, where the settlers provided "For bodilie punishment we allow amongst us none that are inhumane Barbarous or cruel." While Stinneford may be right that presently the electorate might be surprised that the term "cruel" would not necessarily disallow historic punishments such as branding or lopping of an ear or a nose that does mean that those in the revolutionary generation would have similarly confused since branding and mutilation by ear cropping had been practiced within living memory.

My impression of the Colonials is that they were much more legally sophisticated than this article would allow and that the plain language of the Colonists in the late 18th C. encompassed a good many legal terms.

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on July 31, 2017 at 13:35:54 pm

Of course, all this depends upon the assumption that the revolutionary electorate were by and large stone ignorant of the law and were unable to distinguish plain language from terms of legal art.

I don't think so.

As I understand it, McGinnis & Rappaport argue that the Constitution should be construed to reflect the legal terms of art as of 1789. EK argues that the general public in 1789 would have understood the Constitution in those same terms. Nothing in EK's thesis contradicts the McGinnis & Rappaport thesis. If anything, EK's thesis bolsters the McGinnis & Rappaport thesis. But rejecting EK's thesis does not require rejecting McGinnis's & Rappaport's.

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on July 31, 2017 at 13:59:53 pm

McGinnis & Rappaport (and EK) argue that the Framers drafted the Constitution using then-prevailing legal terms of art.

Let's assume that to be true. But let's also assume for the sake of argument that the public did NOT understand those terms in that fashion. The public was then called upon to ratify, and did ratify, the Constitution. Which interpretation should prevail?

Doubtless there must be precedent for how to interpret some law when the authorizing parties held different agreements about what the law meant at the time of adoption. Surely the legislative and executive branches have been on opposing sides of litigation involving some piece of legislation? Or how about a referendum, when the proposition's language was drafted in a manner that a Yes vote would signal opposition to the proposed change? Alas, I don't know of any such cases.

The standard rule in contracts is that, in any conflict between a drafter and a non-drafting signatory who acted in reliance of the drafted language, the language is construed against the drafter. If we were to apply the same principle to referendums, it would suggest that language should be construed in the manner understood by the public. Under this analysis, efforts to scrutinize the minds of the drafters, while interesting in themselves, would be irrelevant to understanding how a court should interpret the language.

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on July 31, 2017 at 15:01:20 pm

"But let’s also assume for the sake of argument that the public did NOT understand those terms in that fashion."

I don't think you can make that argument. Following the suggestion of the Continental Congress in 1775, every colony, except Connecticut and Rhode Island, drafted and ratified their own constitutions. This was completed by 1780 when Massachusetts, after rejecting two proposed drafts, ratified its own constitution. Both Connecticut and Rhode Island simply retained the charters issued by Charles II between 1662-3.

Further, the principle sources available and used by the citizens were the Petition of Right of 1628, Coke's Institutes and their own experience prior to 1789. Any conflict between Blackstone and Coke must resolved in favor Coke since Blackstone's Commentaries were not published until 1765. The English Bill of Rights was available to the gentlemen of trade and the professions living in the coastal cities but had made little impression on the electorate at large by 1789.

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on July 31, 2017 at 16:48:33 pm

Thanks for your thoughtful response.
First even if most colonists understood all legal terms in the Constitution as "terms of art"--to me an empirically doubtful proposition-- it would not follow that the language of the Constitution was ordinary. A term of art is not fully understood by most people, even if they understand it to be a legal term. Otherwise it would not be a term of art and lawyers would not have a comparative advantage in understanding.
Even if people can consult experts to fully comprehend a term of art, that would not imply that the term was part of ordinary language or understandable to people. As we note in our article, this argument proves too much. Since people will consult experts for whatever terms they do not understand, whether those terms are part of English or another language, showing people will consult experts does not suggest that the technical terms are part of a language that has been effectively communicated to them
Second, there are many latently technical terms in the Constitution – terms that have both an ordinary and technical meaning, such as the term property. The language of the law has resources such as interpretive rules to resolve that kind of ambiguity.
Third, there also interpretive rules, like the rule of lenity, that are applied to a document written in the language of the law. These interpretive rules also differentiate legal from ordinary language. For instance, Stinneford employs one of these rules to disambiguate the meaning of cruel.

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John O. McGinnis
on August 01, 2017 at 11:51:56 am

It would seem that not only the Constitution but also the Declaration of Independence was written in the language of law (with natural law understood by all colonial lawyers as the cornerstone of the English/British constitution). Peter Charles Hoffer, in "The Law’s Conscience: Equitable Constitutionalism in America" (University of North Carolina Press, 2000), writes on pp. 71-2: “Jefferson’s Declaration of Independence was modeled on a “bill” in equity, following forms that he might have used to plead for a client before the General Court in Virginia sitting in equity….Bills in equity followed a prescribed form in the colonies. Jefferson, under the pressure of the moment, appropriated the form entire.”

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John Schmeeckle
on August 01, 2017 at 16:15:50 pm

Ha! I'd never heard that.

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on August 01, 2017 at 18:19:18 pm

John / Mike:

You guys are having some impact re: Language of the Law.
Recently saw asynopsis of an article by an academic (I think) who gave a refreshing new "coloration" to the 9th amendment claiming that if you look at it in terms of the language of the law (specifically, contract law) it is not simply superfluous text.

Bully for you guys!

As for Jefferson appropriating the form of an equity bill, didn't Maier (slyly) suggest something similar in one of her works?

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on August 01, 2017 at 20:22:33 pm


I understand the position you are *taking* here (makes for a fun argument); however, the retort could easily be, "Well, if that is so, then why don't courts accept my understanding of my mortgage contract and not the banks?"

Also, as EK says, the Colonists were a bit more politically, and yes, philosophically astute / knowledgeable than are the current citizens of these States. Of course, the Colonists were not disadvantaged by the *benefits* of modern public education systems.

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Image of gabe
on August 08, 2017 at 12:22:02 pm

That 9th Amendment argument is not only fascinating but very important. Could you provide the citation? I made a comparable argument in my classes for years -- but without the support of a carefully worked-out notion of the eighteenth-century law-language. Many thanks.

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Gordon Schochet

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