Justices Gorsuch and Kavanaugh seem to be diverging on essential questions for modern originalism.
In our last post, we provided some examples of recent scholarship that rely on the view, which we have defended, that the Constitution is written in the language of law. They are not consistent with the view that the Constitution is written in ordinary language. In this post we provide some other important examples.
Scholars have even shown the language that looks most ordinary is better understood as part of the language of the law. The Fourth Amendment provides: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The word “unreasonable” is sometimes used as an example of a vague word in ordinary language that renders the meaning of a constitutional provision indeterminate. But Laura Donohue has argued that the word “unreasonable” should be instead read with the legal meaning of “against the reason of the common law.” As a result, the Fourth Amendment does not incorporate some free-floating reasonableness test, but a set of specific prohibitions of searches that violated the common law. For instance, she argues that warrantless entry into homes except in pursuit of a fleeing felon was a paradigm example of a search against the reason of the common law and is therefore prohibited. Under this view, the Fourth Amendment is not a provision of magnificent, but indeterminate generality, but a relatively precise catalog of prohibitions on government action.
Other recent scholarship has suggested the language of the law is essential to deciding who can hold the highest office in the land. The Natural Born Citizen Clause provides” no person, but a natural born Citizen . . . shall be eligible for the Office of President.” It is not clear that the term “natural born Citizen” would even register in ordinary language. But if it could be read in ordinary language it would appear to require that only those born in United States territory were eligible for the Presidency. Under English law, however, a person born outside of the country could still be a natural born subject if they were classified as a subject under the laws at the time of their birth. Thus, Michael Ramsey argues a natural born citizen is a person who was a citizen under the laws at the time of his birth. This recent scholarship has once again treated a constitutional provision as written in the language of the law and found its meaning in legal history.
The language of the law is also at the heart of reevaluating the meaning of the 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 eighteenth century Anglo-American law. 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. Another interesting conclusion from this analysis is that the meaning of the Clause requires that this power be used impartially and thus that the original Constitution applied some form of an equality principle to the federal government . Whatever the validity of this interpretation, it would be impossible to make it from the ordinary meaning of the words.