We have recently written a paper arguing that the Constitution is written in the language of the law. In particular, the language of the Constitution includes terms, like “Bill of Attainder,” that are patently technical, and terms, like “good Behavior,” that are latently so in that they have both an ordinary and legal meaning but are better interpreted according to the latter. It also includes legal interpretive rules, including those that tell readers when to understand a term in its legal sense or its ordinary meaning sense.
The Constitution’s legal language is significant. Theoretically, it shows 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.
Striking confirmation of our thesis comes from modern originalist scholarship. Much of the best of such work depends on reading the Constitution as written in the language of the law and is inconsistent with reading it as written in ordinary language. In this post and the next we will provide some examples.
John Stinneford has provided a new interpretation of the Eighth Amendment by reading the Clause in the language of law.