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!