Chambers of the U.S. Supreme Court (Eric Cox Photography/Shutterstock.com)Originalist Scholarship Relying on the Language of the Law–Part I
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.
Original Methods Originalism Part II: The Convergence Thesis and the Language of the Law Thesis
In my last post I discussed the basic idea of original methods originalism and the different versions of that interpretive approach. Here I want to note a very significant implication of Original Methods Originalism: the possible convergence of original intent and original public meaning. I then want to discuss another aspect of original methods – the view that the Constitution is written in the language of the law and therefore should be interpreted as a legal document. The Convergence Thesis The different versions of original methods discussed in my prior post also have important implications for how originalism is conducted. For many…
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!
