Originalism is a form of legal positivism and as such is devoid of moral force, except as a covert method of subverting a dominant left-liberal tradition.
The Constitution has launched hundreds of debates about its meaning. But before these disputes can be settled an underlying clash of visions about the nature of its very language requires resolution. One view holds that the Constitution is written in ordinary language and is thus fully accessible to anyone with knowledge of the English language. The other, in contrast, is that the Constitution is written, like many other documents with legal force, in the language of the law.
The ordinary language view is often assumed both by the Supreme Court and scholars. But in a new paper Mike Rappaport and I show that the better view is that the Constitution is written in the language of law and that this has important implications for constitutional interpretation. Surprisingly, no one has ever considered how to determine whether the Constitution is written in the language of the law or in ordinary language.
We describe the factors to determine whether Constitution is written in the language of the law. The language is key and the paper for the first time catalogues all the technical terms in the original document. We show that the number of legal terms in the Constitution is much larger than most people recognize and probably numbers about one hundred! We also show that the legal language the Constitution presupposes go beyond mere technical terms but encompasses legal interpretive rules, because the Constitution’s text both blocks the operation of certain legal interpretive rules and calls for the application of other such rules. Finally, the judges and legislators charged with implementing the Constitution in the early Republic frequently deployed legal interpretive rules to resolve contested issues.
The Constitution’s legal language has important theoretical and practical significance. Theoretically, it shows that 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. It also tells us where to find this richness— in the legal meanings and interpretive rules that were deemed applicable at the time. The Constitution was not created ex nihilo and its language of the law brings centuries of tradition and refinement along with it.
An abstract and copy of the paper can be found here.