What one can learn from foreign-language translations of the U.S. Constitution.

• Author: Levinson, Sanford Victor

1. INTRODUCTION

   There is much that could be said about the fascinating discovery by Professor Mulligan and her colleagues of the Dutch and German translations of the English text of the United States Constitution (1) drafted in Philadelphia in 1787. But, of course, that draft consisted only of proposals; what was key was the transmission shortly afterward to the citizenry at large for what the first Federalist aptly described as their "reflection and choice" (2) about the new system proposed to replace what its critics called the "imbecility" (3) of the polity established by the Articles of Confederation. There are at least three different perspectives from which one can mount one's own analysis of the non-English language texts that are the subject of this essay. (4)

   First, one might simply look at their work--and, particularly, the extremely interesting Appendix containing the actual translations--from what might be termed a "micro perspective." We could concentrate on the subtle differences in meaning that might be generated by the shift from English to Dutch or German (and then back again into English by virtue of translating from the Dutch or German). I well remember my own experiment in this direction many years ago, when I asked a law student at the University of Texas, who had been a professional translator prior to his coming to law school, to translate one of the commonly available French versions of the U.S. Constitution without, of course, referring to the English version. (5)

   A second possibility is to address some of the theoretical issues posed by the notion of "translation" itself, particularly with regard to the basis by which we assess the merits of any given translation. Even those who are, unlike me, multilingual, must nonetheless rely on translations much of the time in a world whose multicultural reality becomes ever more important. Almost by definition, we are at the tender mercies of the translator, the accuracy of whose work we really cannot truly judge. A final perspective is provided by what might be termed the "social history" aspect of their project, which emphasizes the social and political reality, and presumed importance, of the existence of German--and Dutch-speaking minorities in Pennsylvania and New York at the time of the Constitution's proposal and ratification. The United States was already a "multi-cultural' or "multi-national" country, which raises interesting questions with regard to at least some of the theoretical underpinnings of the new nation taking form following the secession from the British Empire. The reality of such multiculturalism--especially when revealed in the presence of languages other than English--has often generated either denial or, when that is, as a practical matter, impossible, then normative opposition. We will see at least the first reflected in one of the most interesting essays of The Federalist and the latter in the thought, interestingly enough, of one of our most cosmopolitan "founders," Benjamin Franklin. I will discuss these three perspectives in turn.

2. ON THE MICROANALYSIS OF LANGUAGE

   Although this project may have interesting implications for "originalists," explored in the accompanying essay by my friend Jack Balkin, it also is of obvious relevance to those who describe themselves as "textualists." For example, does it matter--or, perhaps more to the point, exactly how and why does it matter-if instead of the words "to keep and bear arms" in the Second Amendment, we instead read only the words "to carry arms"? (6) This, of course, is not the only potentially interesting example found in a careful perusal of the Appendix. Consider the German translation of the "territories clause" of Article IV as ostensibly giving Congress "the power to sell the land or other property of the United States and for this to make the necessary rules/orders and establishments"? (7) "[F]or this" seems to limit congressional power of rule-making to a small subset of cases in which the land is being sold either to private purchasers or, perhaps, to a foreign country. To be sure, this raises a host of questions: Is it really conceivable that Congress is without power, say, to pass laws organizing new territories that are acquired by war or treaty or even the territories that are carved out of existing states like Virginia or New York? Still, those who profess to be serious textualists, like Justice Scalia or Harvard Law Professor John Manning, often argue that they (or we more generally) are bound by the dictionary meanings of language and that we ought not to infer broader "purposes" that in effect license judges and other interpreters simply to do whatever they desire. (8)

   These, of course, are not the only examples of interesting problems that are generated by carefully reading the alternatives presented by retranslating the German and Dutch back into English. One might have a different conception of the Vice President--whose office I have elsewhere analogized to the duck-billed platypus because of the difficulty in assigning it to a single species (9)--if we accept, with regard to the limitation that "[N]o Person holding any office" can "during his Continuance in office" be at the same time a member of the House or Senate, the proviso that the person in question must be someone who "administers any office." (10) What "office" does the Vice President administer[] ? Is any official within the entire Executive Branch, for example, under a duty to accept orders from the Vice President? Contrast the Vice President not only with the President--the Commander-in-Chief, after all--but also with the Secretary of Transportation or even the Deputy Undersecretary of the Bureau of Land Management in the Department of the Interior. The sole duty of the Vice President, according to the Constitution, is to be President of the Senate. The fact that contemporary presidents may assign their vice-presidents certain duties to chair committees or the like, arguably does not translate into "administer[ing]" an office, unless we want to argue that anyone who, say, hires a secretary or scheduler comes within the Disqualification Clause. But is that a sensible reading of the phrase?

   Similarly, consider what difference it might make, with regard to the kinds of "germaneness" or "single-subject" rules sometimes found in state constitutions and their structuring of the legislative process, if Article I, Section 7 defined "Amendments" as limited to "Improvements" or "Corrections." (11) We have become used to the fact that the Senate, especially, often proposes decidedly non-germane amendments to bills that originate in the House. If we knew only of the German translation, perhaps we would realize that all of them are unconstitutional. Among other things, this would presumably save us from the modern phenomenon of "omnibus legislation," joining together in ungainly fashion hundreds of pages relating to significantly different issues that a president is forced to sign or veto in toto. Finally, consider the implications of translating "proper" in the Necessary and Proper Clause as "what the situation demands," (12) especially if we view that as a proper subject for judicial scrutiny. It is still not clear how that differs from "necessary," unless, of course, one translates "necessary" as Marshall did in McCulloch v. Maryland, to mean "useful." (13) In that case, it might make sense, as the authors suggest, to view the German text as on to something in "emphasiz[ing] that the power given is essentially restricted" by the requirement that the objective situation, presumably open to judicial review, "demands" the controversial measure.

   All of these points are presumably interesting to anyone who takes constitutional language with extreme seriousness, including placing the language in a purportedly rigid historical context. Those of us who are not sympathetic with the radical rejection of purposivism--or embrace of originalism--found in at least some iterations of textual argument as adopted in certain opinions by Justice Scalia (14) or Chief Justice Roberts, (15) though, can wonder if anything would truly be different had all English-language texts disappeared on November 1, 1787...