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The Constitution as Law Nested in Other Law

I am late to the party discussing whether the Constitution is best understand through the prism of “popular” or “elite” meanings.  There have already been fine contributions by Ilya Somin, Timothy Sandefur, Mike Ramsey and Mike Rappaport.

As Mike Rappaport has noted, he and I believe the Constitution is a legal document and thus legal rules will tell us how to determine meaning, including what degree we should look to evidence from popular as opposed to more technical meanings. I just wanted to add that there is substantial evidence from the Constitution itself that is was to be interpreted with legal rules. In that sense, it often cannot be understood without an elite sensibility, assuming we understand lawyers to be elites.

As we note in our article, Original Methods Originalism: a New Theory of Interpretation and the Case Against Construction:

The Constitution defines itself as the “supreme Law of the Land.” The fact that the Constitution was a legal document was not simply left to implication by the enactors but was set forth explicitly in the Constitution itself.

There are also specific indications in the text of the Constitution that the document would be interpreted according to legal rules. We provide some examples in our article. I want to add one more.

This indication is also in the Supremacy Clause and is particularly powerful because it shows that Framers were concerned that interpretation would be governed by one legal convention and therefore substituted another legal convention in its place. Understanding that substitution itself requires substantial background legal knowledge.

Caleb Nelson has comprehensively explained the reason that the phrase “any Thing in the law or the Constitution of the states notwithstanding” –the so-called “non obstante” phrase—appeared at the end of the Supremacy Clause. These words, which had appeared in other laws, were designed to block the application of a preexisting common law rule–that implied repeals are to be  disfavored—to the question of the relation of federal law and already enacted state law. Traditionally a priority rule (and the Supremacy Clause is priority rule) was triggered only if the law were contradictory or “repugnant” to one another. Otherwise, the common law direction was to reconcile them. The “non obstante” phrase was a direction not to attempt this harmonize federal with state  law. Judges were to give priority to federal law without bending it at all in the interests of harmonization.

Thus the “non obstante” phrase was deemed necessary as a guide to judges because legal conventions of judicial decisionmaking of the day were the substratum law onto which the new law of the Constitution was overlaid.  This aspect of the Supremacy Clause provides internal evidence that the Constitution contemplated that legal rules of interpretation were going to be used to interpret it.

This kind of evidence makes it hard to argue that popular understanding can be prior to understandings guided by legal rules (which of course may direct us to popular understanding in some cases).  The Constitution was not created ex nihilo but against a reticulated common law background, as the intricacies of the Supremacy Clause demonstrate. We should welcome this background, because the long history of the common law developed methods of resolving ambiguity and vagueness in language that people in their daily and legally unreflective life do not possess.   To discard this background is to lose an important part of the precision that comes from civilization in its hard won legal form.

Reader Discussion

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on August 25, 2014 at 22:41:00 pm

John O., this is also an interesting post. The whole post was one that I agree with. I would have liked to have seen the comparison of “any Thing in the law or the Constitution of the states notwithstanding” –the so-called “non obstante” phrase—appear(ing) at the end of the Supremacy Clause” -- as being applied against the federal government as “repugnant” -- when the law of the state(s) IS withstanding, and that federal judges would give priority to the constitutional, legal, state(s) law. Under the Supremacy Clause the Judges were to give priority to state law, when constitutionally legal – “without bending it at all”.
You certainly are correct: “This aspect of the Supremacy Clause provides internal evidence that the Constitution contemplated that legal rules of interpretation were going to be used to interpret it… law developed methods of resolving ambiguity and vagueness in language…”
John, since you are a coauthor w/Mike Rappaport. I would like you to read the following conversations to me from Mike -- and tell me if you agree w/Mike.
Mike Rappaport
Mar 28, 2014 @ 16:31:33
John: Without getting into details, there is a strong case for finding incorporation under the Privileges or Immunities Clause. I am therefore generally supportive of it). That is a question of original meaning. It does not follow from welfare consequentalism. The original meaning is the meaning of the document. Welfare consequentialism is a premise in a normative argument for why we should follow the original meaning.
Mike Rappaport
Mar 30, 2014 @ 15:13:06
John, When I say that I am generally supportive of incorporation as stating the original meaning, that includes the Free Exercise Clause. The tougher argument is the Establishment Clause — I don’t have much of a position on this one. It depends on a variety of matters that are too complicated to get into here.
It is true that the First Amendment applies to Congress. But the Privileges or Immunities Clause protects against states the rights of citizens. So if free exercise would have been deemed a right of citizens, it would be protected by the 14th Amendment, even though the 1st Amendment only applies to Congress.

Respectfully, John
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John E. Jenkins

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