Mike Ramsey discusses the issue of whether the Constitution should be interpreted as a legal document or as a nonlegal document. He notes my work with John McGinnis arguing that the Constitution is written in the language of the law. Mike’s discussion gets our view entirely correct.
Rather than engage in an elaborate discussion, let me just mention several essential points.
1. The language of the law contains a legal vocabulary and legal interpretive rules.
2. The strongest evidence that the document is written in the language of the law is that the Constitution contains a) many words that have unambiguous legal meanings, b) many other words (such as good behavior) that have both legal and ordinary language meanings (and that context makes clear should be given their legal meanings), and c) provisions that are clearly written with legal interpretive rules in mind (such as the Supremacy Clause).
3. The language of the law does not mean that terms with both legal and ordinary language meanings always get legal meanings. The language of the law, since it includes all of ordinary language, often permits terms with both legal and ordinary language meanings to be given ordinary language meanings. By contrast, ordinary language has a hard time accounting for the legal meanings in the Constitution.
4. The legal meaning of the Constitution is its original public meaning. The original public meaning is the meaning that was publicly conveyed. Anyone reading the Constitution (including nonlawyers) should know it is a legal document with legal meanings – because it includes technical terms such as letters of marque and reprisal; it refers to obvious legal concepts such as jurisdiction, common law, and equity; it includes legal forms, such as a preamble; and it states that it is the supreme law of the land. Thus, its legal meanings, which are expressed and thus public, constitute its original public meaning.
5. The great bulk of – perhaps virtually all – originalist scholarship employs the language of the law. Scholars look at how courts and lawyers understood the constitutional terms. Thus, it is not surprising that Mike Ramsey says his work employs the language of the law. Even Larry Solum’s excellent work on the original meaning of due process relies on the language of the law.
Posted at 8:00 AM