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The Constitution Is Written in the Language of the Law

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.

Reader Discussion

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on March 09, 2017 at 01:18:23 am

I'm not sure I understand why this statement is correct: "It also tells us where to find this richness—in the thick legal context built up over centuries that surrounds the document." Why would post enactment legal context that has "built up over the centuries" have anything to do with original meaning? Now I could understand pre-enactment english and american common law contexts of reading law. But this didn't "surround the document" as it pre-existed the document.

You and Michael Rappaport put a lot of emphasis on the rules of statutory construction for interpreting the Constitution. While that may be a source of the rules, I am not nearly so confident as you seem to be. I think agency common law may be more important than even the rules of statutory interpretation. Today we tend to think of the Constitution and statutes as similar in some ways (both creating binding legal rules), but I'm not so sure the Founders saw it the same way. Instead I think the founders saw the Constitution more in agency terms, where the officers of the United States were the agents of the people. Any time you see delegations of power, this is the language of agency and the Constitution is full of language like this. Functionally I see this as the basis for Randy Barnett and Evan Bernick article "The Letter and the Spirit: The Judicial Duty of Good-Faith Constitutional Construction." I haven't seen the evidence so far that the Founders thought of statutory interpretation as more important for interpreting Constitutions than the common law of agency. I know of several instances where the Constitution was interpreted directly in terms of agency law by the Founders but much fewer instances of statutory construction rules used. Some rules are shared by contracts, agency and statutory interpretation (basic rules for intercepting language, things like the anti-surplusage principle), much of the background clearly came from English common law in terms of how government operates (especially as it relates to the distribution of powers between the Crown and Parliament) , but the changes from this baseline may have been more in agency terms than in statutory interpretation terms.

I also think the idea that the Constitution should be interpreted in favor of the rule of lenity is an interesting idea (which does have some historical basis).

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Devin Watkins
on March 09, 2017 at 08:58:10 am

I have made these points before

http://www.constitution.org/9ll/schol/pnur.htm
http://constitutionalism.blogspot.com/2016/11/eighty-ambiguous-phrases.html

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Jon Roland
on March 09, 2017 at 09:35:07 am

Devon---I don’t believe that anything you say here undermines or indeed disputes the thesis of the article, namely that the Constitution is written in the language of the law rather than ordinary language.
1. By context surrounding the Constitution, I mean ”the meaning of legal terms and interpretive rules deemed applicable to the document at the time.” I will revise the short blog post to make sure there is no confusion on a point that is clear in the article itself.
2. You suggest that interpretive rules of agency may be applicable to the Constitution. That is quite consistent—indeed I would say dependent on—reading the Constitution in the language of the law. It is just a question of evidence whether such rules were deemed applicable. We certainly do not rule out such evidence.
3. I am not sure why you think that the rule of lenity was deemed applicable to the Constitution and other rules of statutory interpretation were not. We provide substantial evidence that many rules of statutory interpretation were deemed applicable. We do not claim that all such rules were deemed applicable.

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John O. McGinnis
on March 09, 2017 at 10:02:27 am

I don't mean to dispute your thesis in this article. I do think the Constitution was written in the language of the law and must be interpreted as such. Just disputing a little of where the emphasis on what those original methods were.

I am interested in the idea of the rule of lenity being applied to the Constitution, but I'm not sure it is right. It's worth thinking about and exploring more is all I mean. The weird thing that this creates is that the constitutional rules in the criminal context may be different than the same constitutional clause in the civil context. That said it also creates a bias towards more liberty (which is a good thing imo), but I'm still a little hesitant on it. It could be a strong basis for a kind of default baseline for constitutional interpretation (in the civil context the constitution means the 51% most likely meaning, but a criminal context requires more confidence to take away a person's freedom than a 51%-49% likelihood of a constitutional interpretation being correct). I know of a handful of times founders used the rule of lenity in constitutional interpretation and I would love to know if there are more.

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Devin Watkins
on March 09, 2017 at 12:15:48 pm

Devin:

I have not YET read McGinnis and Rappaport's paper. It occurs to me that your concern re: "lenity" may be helpful to me as I read it. Would you be so kind as to provide an example or two of its use by the Founders so I may be less "befogged" as I read.

Prof: McGinnis:

Paper seems interesting to me as it would appear (again, sight unseen for me) that such a method of reviewing the document may go a long way toward further reducing that "indeterminacy" that Judge Gorsuch has commented upon and that the living constitutionalists deploy as it suits them.

My humble thanks to you and Rappaport for the efforts. Now - for the reading glassess.

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gabe
on March 09, 2017 at 13:31:21 pm

Perhaps it should be emphasized what "law" itself meant to the Founders. As Paul Samuel Reinsch described legal theory in the eighteenth-century American colonies: “The analytical theory of Hobbes, making positive law independent of moral considerations and basing it on a sovereign will, was not accepted at that time. The law of God, the law of nature, was looked upon as the true law, and all temporal legislation was considered to be binding only in so far as it was an expression of this natural law.” [Reinsch, "English Common Law in the Early American Colonies" (New York: Da Capo Press, 1970, orig. 1899), 56.]

And natural law, in the common-law tradition, was most emphatically not based on John Locke. The essence of natural law, as understood and applied in the common-law tradition and studied by the American founders, can be found in St. Germain's sixteenth-century classic on equity, "Doctor and Student": http://lonang.com/library/reference/stgermain-doctor-and-student/sgm-102/

St. Germain points out that the law of nature is the "first ground" of the laws of England; and the law of nature, for the American founders, was firmly rooted in Cicero, not Locke. See "Cicero, Natural Law and the Declaration of Independence" at https://www.academia.edu/6508461/Cicero_Natural_Law_and_the_Declaration_of_Independence

However, the existence of slavery, "odious to the law of nature" (quoting Chief Justice Mansfield), appears to have led on occasion to the deliberate muddling of language in the Constitution, which highlights a problem for originalists: how to interpret the Constitution when it appears to be vague or deliberately ambiguous? The "necessary and proper" clause comes to mind: With the fierce partisan divide over Congress's authority to create the original Bank of the United States, the Founders themselves couldn't agree on what the Constitution meant.

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John Schmeeckle
on March 09, 2017 at 13:58:10 pm

An example given in the paper is during the first Congress there was a question as to if a Senator could be impeached, and the argument was made that for any ambiguity that did exist in the Constitution should be construed in favor of the defendant. But there are other examples that more clearly applied it in the criminal context.

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Devin Watkins
on March 10, 2017 at 15:33:17 pm

Having read the paper, I must say that if I were the "populist" that nobody.really claims me to be, I would be furious with this paper as it seems to slant towards a view that only the "elect" (lawyers, etc) are capable of engaging with the constitution and that it is proper that this be so.

The authors do a fine job in making their case and once one is willing to recognize that the "people" are constrained by their lack of technical / legal expertise, it becomes clear that the "language of the law" approach is actually well suited for a representative democracy / republic.

I rather liked the juxtaposition of "We the People" versus "We, the Lawyers" as an alternative Preamble.

Yet, there is some truth to that and not just in the matter of the Founding.
It would appear that these "rules" have the effect of further isolating the people from the law and permits lawyers / jurists to *shape* via interpretation what the Law has become / shall be.

Countering that is, what I think, is the underlying thrust of McGinnis and Rappaport's argument. If we can agree that there are *clear* agreed upon (generally) rules, then perhaps, much of the Judicial "Freewheeling" we have observed over the past 80 years might be held in abeyance. Then again, for this we need those knowledgeable in the "language (rules) of the Law.

Rather liked it!!!

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.