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.
One of the puzzles in constitutional law has been the original meaning of the Ninth Amendment. Some years ago, during his unsuccessful confirmation hearings, Judge Robert Bork analogized our lack of understanding of the Amendment to the situation where the language of a constitutional provision was obscured by an inkblot. He argued that since we don’t understand the provision, we are in no better position to enforce it than if an ink blot covered it.
Over the years, various explanations have been offered for the amendment. Some have argued that it protects enumerated natural rights to the same extent as the enumerated constitutional rights. Others have interpreted it to have a much less significant role.
In my view, the best interpretation of the Amendment is supplied by Michael McConnell in a relatively recent law review article. At the beginning of my scholarly career, I had come upon the same idea, but was persuaded not to write it up. My mistake, although I don’t think I would have done as good a job as McConnell does.
Hillary Clinton has made her first statement about what she wants in a Supreme Court justice. Instead of focusing on jurisprudential philosophy, Clinton has laid out a litmus test defined by a particular case: her justice must be committed to overruling Citizens United.
This comment shows that Clinton wants to abridge core political freedoms and to create two classes of citizens—the scribal class which has special privileges to speak at election time and the rest of us who are prevented from disseminating our views as effectively. Recall that Citizens United was a non-profit corporation that put out a video that criticized none other than Hillary Clinton, then as now running in a primary for the Democratic presidential nomination. The McCain-Feingold legislation made such criticism by a corporation illegal in the run-up to a primary, but the Supreme Court struck down this prohibition as violating the First Amendment. The legislation expressly exempted media corporations from its prohibitions, creating a distinction between those in the media and everyone else.
The Court’s decision was clearly correct. As I argued fifteen years ago, and as Mike McConnell has since developed independently at much greater length, the dissemination of such independent views is encompassed within the freedom of the press.
Coming just prior to the fiftieth anniversary of the assassination of John F. Kennedy, the announcement that the U.S. embassy to the Vatican would be moved into the Rome embassy grounds struck many American Catholics as yet another insult by the Obama Administration. In fact, the Vatican Embassy is not being closed—though several former Ambassadors to the Vatican have criticized the change. (Ronald Reagan was the first President who authorized an Ambassador to the Vatican, so the move may be as much anti-Reagan as anti-Catholic.) But in reviewing the Kennedy record, we discover that the only Catholic President had campaigned against having an Ambassador to the Vatican.
When the Constitution is ambiguous or silent on a particular issue, this Court has often relied on notions of a constitutional plan- the implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and give each provision within that document the full effect intended by the Framers. The tacit postulates yielded by that ordering are as much engrained in the fabric of the document as its express provisions, because, without them, the Constitution is denied force, and often meaning.- William H. Rehnquist
Nevada v. Hall, 440 U.S. 410, 433 (1979) (Rehnquist, J., dissenting).
Today, as threatened in an earlier post, a few more words on competition, the Founders, and the Constitution and its federalism. What warrant do we have to read modern-day competitive federalism theory back into the Constitution?