The Language of the Law and Pena-Rodriguez v. Colorado

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…

Read More

Justice Scalia, Ordinary Meanings, and Legal Meanings

Mike Ramsey, Ilya Somin, and now Tim Sandefur have been having a debate over whether the original meaning of the Constitution should be interpreted in accordance with the meaning as understood by the ordinary public or by people with legal knowledge.  I may have more to say about this next week, but for now I want to note a significant issue.

Under the original methods originalism position that John McGinnis and I defend in Originalism and the Good Constitution, the Constitution should be interpreted in accordance with the interpretive rules that would have been deemed applicable to it at the time of its enactment.  Since the Constitution is a legal document, we believe these interpretive rules are those that would have been applied to a legal document.  These legal interpretive rules would sometimes require that the ordinary meaning apply rather than a more technical meaning, but they would often require legally informed meanings and understandings to be employed.

Read More