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The Common Law Roots of the Duty of Clarity

In his brilliant book The Ideological Origins of the American Revolution Bernard Bailyn wrote: “English law—as authority as legitimizing precedent, as embodied principle, and as the framework of historical understanding—stood side by side with Enlightenment rationalism in the minds of the Revolutionary Generation.” The Constitution itself was a product of those same minds caught between the traditions of the common law and the axioms of the Enlightenment. Understanding the Constitution correctly depends on giving appropriate weight to its common law background.

The judicial duty of clarity along with judicial methods of clarification reflects the common law background of judicial review. Philip Hamburger’s important work Law and Judicial Duty, shows that before the advent of the written constitution, conscience was the measure by which English judges evaluated government action and that this measure led them to reject government action only where there was manifest contradiction between the action and the unwritten Constitution.  The common law was also informed by a philosophy of legal science that in the eighteenth and nineteenth centuries led jurists to try to harmonize all laws, if possible, because they were thought to reflect an underlying natural law. Law was regarded as more than a haphazard aggregation of holdings and statutes.  Instead it tended to an organic unity. When the Constitution became written it was therefore only natural to try to find harmony between the statutes and the Constitution as well. This impulse to harmonization comported with the terms of prior English law—to require a manifest contradiction before substituting judicial judgment for that of other government officials.

Both of these aspects of the jurisprudential background help us understand why an obligation of judicial clarity comported with the general jurisprudence of the time and was a component of the larger concept of judicial duty that was the basis of judicial review. Judicial review and the duty of clarity were intertwined. There is substantial evidence from historical traditions that following the higher law was part of a judge’s legal duty at the time. But there is probably even more agreement that a duty of clarity was part of a judge’s duty in following that higher law.

But legal thought at the time is also consistent with engaging in searching inquiry into the constitutionality of law and not resting content with measuring constitutionality by any possible reading of a constitutional text. At the time of the framing of the Constittion interpretation took place against the background of a notion of a comprehensive legal science. Legal science seeks to use the full range of rules to find the accurate interpretation of a legal text, thus clarifying meaning which might otherwise be thought unclear.

The two strongest competitors to the judicial duty of clarity and clarification as the measure of the appropriate approach to judicial review—the view that no obligation of clarity should exist in judicial review and the view that any lack of clarity in the text triggers deference are opposite reactions both rooted in the more severe calculus of the Enlightenment than the winding historicity of the common law. The no-clarity approach depends on a stark syllogism. Judges are to apply the Constitution as higher law to displace the lower form of statutory law. Therefore, statutes should be invalidated whenever they conflict with the Constitution on the best reading, according to an ordinary preponderance of evidence standard.

The strong deference rule, in contrast, depends on a logic of power. Under this view, determining the reach of unclear texts makes judges sovereign. Sovereignty is better located in the legislatures. Judges should therefore defer whenever there is any lack of clarity of the face of a provision.

The difficulty with both these views is that they do not reflect the common law inheritance of the Constitution in all its mazy nature.

Reader Discussion

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on March 26, 2015 at 12:40:32 pm

"that no obligation of clarity should exist in judicial review and the view that any lack of clarity in the text triggers deference are opposite reactions both rooted in the more severe calculus of the Enlightenment than the winding historicity of the common law. "

Excellent point.

Perhaps one could add the following: that the common law's epistemology ALSO reflected a faith in the human (natural) ability to discern this wholistic "law," hence one has good reason to (1) defer to other authorities who likewise have this natural reason--whether those persons are legislators or prior judges, and (2) presuppose that the legislators could not have intended to violate either reason or the Constitution.

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David Upham
on March 26, 2015 at 16:40:16 pm

David:

Re: epistemology.

I believe that you are correct that the epistemology of the time reflected more fully the "Common Mind" that was, quite simply, *common* to those original political / judicial actors.

And if I am not misreading your earlier reference to epistemology (in earlier post on restraint, etc), is not the problem now that owing to some rather significant changes in a) governments role (significantly more robust and intrusive, b) perception of governments proper role by c) government actors, d) general populace and d) both the legislature and the judicial branches that this epistemology has changed.
The Common Mind now reflects an expectation that government 1) can perform these additional tasks, 2) that government should perform these tasks 3) that the people are either unable or unwilling to perform them and 4) consequently the Judiciary should defer (Chevron or Auer) to the experts in government.
Thus the task is not simply to change some statutes but rather to re-kindle a Common Mind that more closely approximates that of the Founding Era. (In interests of time, I leave out the effects of modernism / reason on this dynamic but mention only the political elements of it).

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gabe

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