THE CONSTITUTION AND THE LANGUAGE OF THE LAW.

• Author: Mcginnis, John O.

TABLE OF CONTENTS

INTRODUCTION 1325 I. THE LANGUAGE OF THE LAW 1332 A. The Broad Conception of the Language of the Law 1334 1. Existence of the Language of the Law 1336 2. Features of the Language of the Law 1339 3. Integrating Ordinary with Legal Language 1343 4. Determining Which Rules Are Part of the Language 1345 of the Law B. The Narrow Conception of the Language of the Law 1346 1. Pragmatics, Context, and Meaning 1347 2. The Context of Statements Made in the Language 1350 of the law C. The Law of Interpretation's Critique of the Language 1353 of the law II. THE CONSTITUTION AND THE LANGUAGE OF THE LAW 1355 A. Determining that the Constitution Is Written in the 1356 Language of the Law 1. Examining the Language of the Document 1356 2. The Language in Which the Same Type of Documents 1357 Are Written 3. The Purposes of the Document 1358 4. The Authors and Addressees of the Document 1360 5. Inferences from a Document Written in the 1361 Name of the People B. Is the Language of the Document the Correct 1362 Standard C. A Brief Normative Digression 1364 D. An Exploration of the Ordinary-Language View 1366 III. THE LINGUISTIC AND HISTORICAL EVIDENCE THAT 1368 THE CONSTITUTION IS WRITTEN IN THE LANGUAGE OF THE LAW A. The Self-Declaration 1369 B. The Language of the Constitution 1370 C. The Nature and Structure of the Document 1377 D. The Explicit and Implicit References to Legal 1378 Interpretive Rules 1. Clauses Blocking the Application of Legal Interpretive 1378 Rules 2. Clauses Calling for the Application of Legal 1381 Interpretive Rules E. The Interpretive Practices of Early Jurists 1383 1. Early State Courts 1383 2. The Pre-Marshall Court 1387 3. The Marshall Court 1389 F. The Interpretive Practices of the Framers and Early 1392 Legislators 1. The Framing 1392 2. Debates About the Constitution in the Early 1394 Congresses G. Answers to Possible Objections 1396 1. Marshall and Ordinary Language 1397 2. Cornell and Popular Constitutionalism 1398 IV. THE LANGUAGE OF THE LAW AND MODERN ORIGINALISM 1400 A. The Confrontation Clause 1401 B. The Executive Power Vesting Clause 1404 C. Five Other Examples of Originalist Scholarship 1408 Relying on the Language of the Law CONCLUSION 1411 INTRODUCTION

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. Another view is that the Constitution is written, like many other documents with legal force, in the language of the law. Understanding its full meaning, then, requires legal as well as ordinary linguistic knowledge. While the ordinary-language view is often assumed, (1) the entire question has received little serious treatment. In this Article, the first devoted to the subject, we show that the Constitution was written in the language of the law.

Resolving this dispute is important for any interpretive theory that gives at least some weight to the Constitution's original meaning, which includes almost all of them. (2) But it is particularly important to originalism. Originalism posits that the meaning of the Constitution was fixed at the time of its enactment. (3) And that meaning was fixed by the Constitution's language. (4) Thus, the language in which the Constitution was written can make a fundamental difference to its interpretation.

The ordinary-language view understands the Constitution as written in standard, everyday English. Under this view, when the Constitution addresses fundamental political norms, it uses language much as nonlegal documents, like newspapers at the time, used language. To be sure, sophisticated people may understand the implications of the document better than the less sophisticated, but no legal expertise is needed. Thus, in its purest form, this view suggests that all the Constitution's terms are terms in ordinary language.

Under the ordinary-language view, the Constitution is explicated based on ordinary interpretive rules. These rules guide interpretation of statements made in ordinary language. (5) For example, it is normally thought that a speaker or writer will not contradict himself in a document. Thus, interpreters try to understand different provisions as consistent.

But the ordinary-language view faces challenges. One issue for this view is how to interpret terms, like "Letters of Marque and Reprisal," (6) that have no meaning outside of the law and are therefore unfamiliar to the ordinary language reader. A second issue is how to understand terms like "due process," (7) that have both a legal meaning and an ordinary meaning. Yet another issue is how to address provisions, like the Supremacy Clause, (8) whose words invoke preexisting legal interpretive rules. (9) These are challenges because the ordinary-language view cannot easily account for meanings that are not part of ordinary language.

Understanding the Constitution as written in the language of the law dissolves these problems. Contrary to the ordinary-language view, the language-of-the-law view posits that the Constitution is written in the distinctive idiom of law. Like any technical language, the language of the law overlays ordinary language; it uses English as a foundation on which to build rather than creating a wholly new language.

A document written in the language of the law thus contains both ordinary language and legal language. Terms that have only legal meanings, like letter of Marque and Reprisal, are given their legal meaning. Terms that have only ordinary meanings are given their ordinary meanings. And terms like due process, that have both an ordinary and a legal meaning, are treated as ambiguous. Under the language of the law, these terms have the meaning that the context and other interpretive rules indicate they have.

The language-of-the-law view also differs from the ordinary-language view in embracing legal interpretive rules. Law has over time generated distinctive rules that guide interpretation of documents written in its language. For example, the rule of lenity, which requires criminal prohibitions to be interpreted in favor of the criminal defendant, has regularly been applied to legal enactments, even though it does not apply in ordinary language. (10)

Through technical meanings and distinctive rules of interpretation, the language of the law can affix a more precise meaning to constitutional provisions than ordinary language can. For example, one legal meaning of due process is conformity with the legal procedures employed at common law. (11) That meaning is more precise than the ordinary language understanding of the term as fair procedures.

Reading the Constitution in the language of the law makes a substantial difference to originalism. Most importantly, if the Constitution is written in the language of the law, only reading it in that language will yield an accurate interpretation. For instance, if the right to confront witnesses under the Sixth Amendment is defined by the meaning of confrontation at common law, then the right will only receive that meaning if the Constitution is read in the language of the law. Similarly, if an "unreasonable" search or seizure under the Fourth Amendment meant a search or seizure prohibited by the common law, then only the language of the law will yield that meaning.

Moreover, the language of the law often provides a more precise answer when ordinary language would not provide a clear one. The ordinary meaning of the right to confront witnesses does not determine when the right is forfeited, but the legal meaning does. (12) The ordinary meaning of the word "unreasonable" in the Fourth Amendment (13) appears ambiguous, but a precise legal meaning may be determined by the common law of the time. (14) Similarly, "due process of law" (15) seems vague in ordinary language, but legal scholars have used legal language to find a determinate meaning. (16) Indeed, much of the best modern originalist scholarship is inconsistent with an ordinary language reading of the Constitution.

Like most benefits, the language of the law's capacity for precision is not a free good. It is purchased at the cost of complete transparency to the ordinary reader. At times, it also requires the additional cost of employing lawyers. In many circumstances, those costs are worth paying as a normative matter. Indeed, the entire edifice of law is based on the proposition that, in the complex and important enterprises of life, greater precision is worth the cost of deploying a technical language fully familiar only to experts. But in this Article we limit ourselves to proving an important, nonnormative, interpretive claim that resolves the conflict of views about the nature of the Constitution's language: the constitutional text is far better understood as written in the language of the law than in ordinary language.

Several pieces of evidence strongly support the conclusion that the Constitution is written in the language of the law. First, the Constitution refers to itself as law, (17) which suggests that it is written in the language in which laws are ordinarily written. Second, we show that the language of the Constitution is filled with numerous legal terms. Some of these terms are unambiguously legal. Others are ambiguous, having both an ordinary and legal meaning. And still others are possibly ambiguous--they have an ordinary meaning but they may also, depending upon the fruits of further historical research, turn out to have a legal meaning. Moreover, many of these different types of terms are used more than once in the Constitution, which reinforces the legal character of the document. While it is not entirely clear how many terms are used with their legal meanings in the Constitution, it is a large number--likely more than...