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.
Late last week, a panel of the D.C. Circuit dinged Amtrak for the second time. The case (Association of American Railroads v. Department of Transportation) involves several constitutional questions regarding Amtrak’s funky set-up and operation. Herewith a few preliminary words on one of them: delegation and due process.
I previously suggested that a traditionalist judicial decision is self-consciously so. It demonstrates a keen interest in the coherence and continuity of particular legal practices and authorities over long periods of time. It is intentional about retransmitting and re-cementing those enduring legal practices and authorities in its own decision. And its traditionalism emerges from a close reading of the opinion and from attending to the court’s understanding of its own role.
In this respect, consider the plurality opinion authored by Justice Scalia in Burnham v. Superior Court.
It was in April, during oral arguments in the collection of cases known as Obergefell v. Hodges that Justice Kennedy publicly fretted over the legal outcome that his jurisprudence has, in effect, created. To the surprise of Court-watchers, Kennedy at one point let out that he had “a word on his mind . . . and that word is millennia.”
I want to mention two additional developments in the sexual assault area that suggest that people are beginning to protest and push back against infringements of due process and fairness.
First, 16 members of the University of Pennsylvania Law School faculty have written an Open Letter criticizing the University’s new procedures for investigating and adjudicating complaints of sexual assault. The letter refers to the pressure placed on the University to adopt these procedures under threat of withdrawal of federal funds, but notes that the procedures undermine “many protections long deemed necessary to protect from injustice those accused of serious offenses.” The 16 faculty members comprise a politically diverse group with both liberals and conservatives significantly represented. This Open Letter builds upon the momentum of another such letter from members of the Harvard Law faculty.
Via Eugene Volokh, I came upon this article in the American Prospect by feminist advocate and retired federal judge Nancy Gertner, the author of “In Defense of Women: Memoirs of an Unrepentant Advocate.” The article, which criticizes the new Harvard sexual assault policy, is well worth reading. While it covers some of the same ground concerning the biased university policies that I discussed in prior posts, it also has a fascinating discussion of the problems with the criminal justice system as well. This is important because it is often recommended that these sexual assault cases be handled by the police and the courts.
A recent WSJ editorial, The SEC as Prosecutor and Judge, comments on the SEC’s hints that it will be shifting its enforcement of insider trading laws from the courts to administrative adjudications:
A year after vowing to take more of its law-enforcement cases to trial, Securities and Exchange Commission officials now say the agency will increasingly bypass courts and juries by prosecuting wrongdoers in hearings before SEC administrative law judges, also known as ALJs. “I think you’ll see that more and more in the future,” SEC Enforcement Director Andrew Ceresney told a June gathering of Washington lawyers, adding that insider trading cases were especially likely to go before administrative judges.
Ceresney undoubtedly thinks this will be efficient — not to mention advantageous in avoiding those pesky critters known as judges and juries.
Dreams are surreal, of course, and often you wonder where in the world some dream could have come from. In this instance, though, I think I know: I suspect that my dream was prompted by a post on this very blog. In any case, it was a dream about Griswold v. Connecticut— the old, seminal (albeit anti-seminal) contraception decision.
In my dream, the case and the result were the same, but the reasoning was completely different. I forget who wrote the majority opinion. Harlan, maybe. Or White. Definitely not Douglas. There was nothing in the opinion about “emanations” and “penumbras.” No effusive (and, given Douglas’s authorship, ironic) paeans to the nobility and sanctity of marriage. It was a due process decision–but real due process. Procedural due process, not substantive.