The thoughts below are prompted by a discussion Mike Rappaport and I had at USD's Constitution Day event on Moore v. United States (the Court's pending Sixteenth Amendment case). In addition to featuring interesting originalist arguments on both sides (see Part 1 of my thoughts), Moore sets up a contrast in styles of originalism methodology. As noted in my previous post, Judge Patrick Bumatay dissented from the Ninth Circuit's denial of rehearing en banc, arguing on originalist grounds that the tax at issue in Moore is unconstitutional; his argument was that a tax on unrealized gains is not a "tax[ ] on incomes" under the original meaning of the Sixteenth Amendment. And at the Supreme Court, a group of linguistics experts including University of Virginia law professor Lawrence Solum filed a brief reaching a similar conclusion. But they used very different approaches.
Judge Bumatay appealed to traditional originalist sources including dictionaries and, most forcefully, a legal dictionary (Black's) and two treatises on tax law. Thus (although he did not put it quite this way) he sought to establish the legal meaning of "income" at the time of the Amendment's enactment.
Professor Solum's brief, in contrast, argued that the appropriate inquiry is the ordinary meaning of "income" at the time of enactment. As the brief puts it in its summary of argument:
The Court should interpret the Sixteenth Amendment in accordance with its original public meaning—the ordinary, “common” meaning, State of Rhode Island v. Palmer, 253 U.S. 350, 398 (1920), understood by “ordinary citizens.” District of Columbia v. Heller, 554 U.S. 570, 576–77 (2008); accord New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2132 (2022). That meaning cannot be reliably established by the tools most commonly utilized in the originalist inquiry. Historical dictionaries provide period definitions of “income(s).” But those definitions cannot tell us whether the ordinary, common use of that term encompasses a realization event. And they do not account for the broader linguistic context of the Sixteenth Amendment—not just “income” in isolation, but the phrase “incomes, from whatever source derived.”
And from the longer version of the argument (footnotes omitted):
Our understanding of the Constitution should be viewed through the lens of popular sovereignty. The Constitution was ratified by “the People.” See U.S. CONST. Preamble. It was written to be understood by “ordinary citizens.” Heller, 554 U.S. at 577. And its text should thus be “expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it.” Palmer, 253 U.S. at 398 (quotation omitted). These are the foundations of this Court’s commitment to the original public meaning of the Constitution. That commitment encompasses two key components.
The first is the idea that constitutional interpretation should recover the original meaning of the constitutional text. …
The second component is that the Court looks to public meaning—the ordinary, common, or natural meaning of the text for citizens or members of the public. This is the Ordinary Meaning Canon—the principle that “[w]ords are to be understood in their ordinary, everyday meanings,” “unless the context indicates that they bear a technical sense.” Scalia & Garner, Reading Law, 72; see also Lawrence B. Solum, The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning, 101 B.U. L. REV. 1953, 1963 (2021) (explaining that “[t]he original meaning of the constitutional text is best understood as the content communicated or made accessible to the public at the time each provision was framed and ratified—in other words, the original communicative content”). …
Some of the originalist analysis in this case has focused on a specialized meaning of “income(s)” in the early 1900s—as a legal term of art or a technical definition used by experts in accounting or economics. … But the people who ratified the Sixteenth Amendment were not economists or tax lawyers. They were citizens informed by the common, ordinary understanding of “income(s).”
The brief accordingly uses corpus linguistics analysis to assess how ordinary people (or, at least, people whose writings made it into the corpus database) used the term "income."
Professor Rappaport has argued against a strong version of the Solum view, principally on the ground that the Constitution is a legal document with legal meaning: see especially The Constitution and the Language of the Law (with John McGinnis). Here is their argument from the abstract:
There has been a long-standing debate over whether the Constitution is written in ordinary or legal language. Yet no article has offered a framework for determining the nature of the Constitution’s language, let alone systematically canvassed the evidence.
This article fills the gap. First, it shows that a distinctive legal language exists. This language in the Constitution includes terms, like Letters of Marque and Reprisal, 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 such as those that tell readers when to understand a term in its legal sense or its ordinary meaning sense. The article shows how to determine whether a document is written in the language of the law. The most important factor is the language of the document itself. The pervasive presence of technical legal terms provides strong evidence that a document is written in the language of the law, because ordinary language cannot easily account for even a small number of legal terms. The purpose of the document also counts. Insofar as it is written to inform officials of their duties, it is more likely to written in legal language, because that language allows more precision. The language of similar documents provides additional evidence. Since other constitutions at the time were written in the language of the law, that militates in favor of reading the Constitution in that same language.
The article supplies strong evidence that the Constitution is written in the language of the law. The article is the first to count the legal terms in the Constitution and approximates them at a hundred. Moreover, the Constitution’s text both blocks the operation of certain legal interpretive rules and calls for the application of other such rules. Finally, the judges and legislators charged with implementing the Constitution in the early Republic frequently deployed legal interpretive rules to resolve contested issues.
The Constitution’s legal language has important theoretical and practical significance. Theoretically, it shows that 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.
Thus he would (I assume) be more comfortable with Judge Bumatay's approach (while not necessarily agreeing with the conclusion).
I had not thought much about this issue until recently, but I realize in looking back on my originalist scholarship that I tend to take the Rappaport view — that is, I look substantially at legal materials to assess the Constitution's original meaning. On reflection I think that is in the main justified, even though I agree with Professor Solum's starting point. The Constitution is meant for "We the People" not we the lawyers. But it is nonetheless a legal document. And the way a reasonable ordinary person approaches a legal document is to think about its legal meaning (including consulting legal materials like cases and treatises, or even lawyers, when in doubt). This is not to say that the Constitution's text should be given obscure technical meanings (or worse, secret meanings). I entirely agree with Professor Solum, as quoted above, that "[t]he original meaning of the constitutional text is best understood as the content communicated or made accessible to the public at the time each provision was framed and ratified—in other words, the original communicative content." But the communicative content of a legal document is its legal meaning — and that meaning is "made accessible to the public" through legal materials and legal context that are themselves accessible to the public. (I think this is substantially Professor Rappaport's view as well, though I would not want to speak for him.)
Posted at 6:27 AM