At Prawfsblawg, Rick Hills (NYU) has a long post discussing his recently posted article Strategic Ambiguity and Article VII’s Two-Stage Ratification Process: Why the Framers (Should Have) Decided Not to Decide (noted here): How Should Article VII’s Ultimatum Game Affect Constitutional Interpretation? Here is the introduction:
Suppose that you accept the originalists’ premise that 18th century linguistic norms ought to determine the communicative content of American constitutional words and phrases. Which 18th century norms should you use, if 18th century speakers disagreed about the applicable norms? As Jack Rakove has noted, the Constitution was ratified during Revolutionary times when the meaning of words were in flux. What if 18th century Americans were in ferocious disagreement with each other about how to read constitutional text?
I have recently posted a draft article arguing Article VII of the U.S. Constitution defined a revolutionarily new legislative process with interpretative consequences. That Article VII process amounted to a one-shot Ultimatum Game. The essence of this Ultimatum Game was that Federalist proposers who drafted a proposed Constitution in a secret Philadelphia Convention sent it for an up-or-down vote to state ratifying conventions where amendments to the proposal were forbidden. Anti-Federalists dominated several important ratifying Conventions (in particular, Massachusetts, Virginia, and New York), and they bitterly resented the Article VII process, complaining that the process amounted to (using their oft-repeated phrase) “cramming the Constitution down our throats.” As modern political science notes, such a process gives the proposer a decisive advantage over the ratifiers whenever the ratifiers’ preferences lie somewhere between the status quo and the proposers’ preferences. The further the ratifiers’ preferences are from the status quo to which the situation will revert if the proposal is rejected, the greater the proposers’ power to cram a proposal down the ratifiers’ throats that the ratifier dislikes. Because Anti-Federalists generally hated the Articles of Confederation (albeit not as much as the Federalists), they would theoretically hold their noses and approve any proposal that they really, really disliked to avoid reversion to the dreaded anarchy of the Articles.
What interpretative conventions ought to accompany a document ratified through such a process? In the article, I suggest that the Federalists deliberately adopted a stance of presuming that contested constitutional terms were ambiguous in order to assuage Anti-Federalist resentment over Article VII. Especially during the Massachusetts ratifying convention and thereafter, two standard Federalist talking points were that (1) popular ratification through state conventions required a proposal filled with vague language but (2) Anti-Federalists would have equal odds of influencing the interpretation of ambiguous phrases after ratification. This ratification strategy suggests an interpretative convention: When in doubt, construe constitutional phrases to be strategically (meaning deliberately) ambiguous. As originalists generally agree, strategically ambiguities cannot be resolved by looking to facts contemporary with ratification such as linguistic usage or shared constitutional purposes. Instead, the legal meaning of strategic ambiguities must be resolved through constitutional “construction” using post-ratification materials.
After the jump, I have provided some answers to FAQs I’ve encountered when discussing this idea with colleagues. The broad take-away, however, is that the contested character of Article VII really matters to originalism. One cannot figure out what norms should apply to any linguistic artifact — a novel, a card game, a love letter, an elevator pitch, a treaty, a statute, etc. — until one investigates the process that produces that artifact. The Article VII process suggests IMHO that the right linguistic norm is a presumption of strategic ambiguity, but, even if you reject that position, you really need to take Article VII’s contested character into account when devising one of your own.
As with many arguments that the Constitution's text is mostly ambiguous (or vague), I'm not persuaded (although surely some of it is); but in any event, I am persuaded that if the Constitution's text is mostly ambiguous, then courts have little license to override the decisions of the political branches. I'm not sure that's what the author wants to persuade me of, however.
Posted at 6:09 AM