Recently, Laura Donahue, a professor at Georgetown Law and an expert on digital privacy, came to the Originalism Center at the University of San Diego to talk about her recent article, “The Original Fourth Amendment.” The article is a long one, nearly 150 pages long in a law journal, and it covers the development of search and seizure law through English, Colonial and American history. One of the messages that comes across is the familiar one that the Americans were Whigs, who took one strand of English thought that was protective of liberty, and wrote it into the Constitution.
Neil Goldfarb has written a blog post commenting on our paper, The Language of the Law and the Constitution. The gist of his post is that the law is not a language in any of four categories of language that he recognizes. But Goldfarb himself notes that words often have shades of meaning: they cannot be confined to a procrustean bed of meanings. There is no reason to take his list as exhaustive. Most significantly, Goldfarb fails to address our argument that the language of the law is a technical language. There is little doubt that there are technical languages: many…
Mary Bilder, a distinguished legal historian, has written an oped arguing that the historical context and drafting of the Constitution shows that originalism is not a suitable interpretive approach for its text. Larry Solum has already asked her five probing questions about her understanding of originalism.
Here I want to focus on her historical claims and in particular her denial that the Constitution should be interpreted as a legal document. To be sure, not all originalists believe that the Constitution is written in the the language of the law, but Michael Rappaport and I do. Bilder’s exposition of an originalism that follows the Constitution’s legal meaning begins by attacking a straw man. She writes: “Originalism reads our Constitution as if it were a modern technical contract written by experienced lawyers or a contemporary statute written by a team of legislators and staffers, parsing and perfecting every word as they wrote it.”
The Constitution is not a contract or, as Chief Justice John Marshall noted, a code, but that does not mean it cannot be a legal document, interpreted with legal rules appropriate to a constitution, as were state constitutions at the time. And Mike and I have recently shown that text of the Constitution—its legal terms and its presupposition of legal interpretive rules– provides powerful evidence that it was written in the language of the law. But even if Bilder does not consider the text relevant historical evidence— which would be a strange position for a legal historian—her arguments from the context of its drafting are weak.
First, a team of lawyers was in fact responsible for perfecting the language of the Constitution.
Recently, John McGinnis and I completed a paper entitled The Constitution and the Language of the Law. The basic question addressed is whether the Constitution is written in ordinary language or in the language of the law. But what turns on this question? The Supreme Court’s recent controversial decision of Pena-Rodriguez v. Colorado illustrates why it matters and how the failure to follow the language of the law tends to confer discretion on the justices. A Colorado jury convicted Pena-Rodriguez of a crime, but following the discharge of the jury two jurors stated that another juror had expressed anti-Hispanic bias towards…