Building Better Informed Americans

Building Blocks for Liberty

U.S. Constitution

Article1 Section1 Clause 1

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Originalist Scholarship Relying on the Language of the Law–Part I

by John O. McGinnis

This post is written jointly with Mike Rappaport. We have recently written a paper arguing that the Constitution is written in the language of the law. In particular,  the language of the Constitution includes terms, like “Bill of Attainder,” 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, including those that tell readers when to understand a term in its legal sense or its ordinary meaning sense.

The Constitution’s legal language is significant. 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.

Striking confirmation of our thesis comes from modern originalist scholarship.  Much of the best of such work depends on reading the Constitution as written in the language of the law and is inconsistent with reading it as written in ordinary language. In this post and the next we will provide some examples.

John Stinneford has provided a new interpretation of the Eighth Amendment by reading the Clause in the language of law.  The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  Stinneford argues that “unusual” means “against immemorial usage”—a common law concept. The use of this legal meaning resolves any ambiguity that would exist if the term were read in ordinary language, in which “unusual” would more likely suggest evaluating a punishment against current norms rather than past norms.

Stinneford also shows that the term cruel is ambiguous if viewed from an ordinary language perspective, because it could apply to cruelly disproportionate punishment or to punishment done with cruel intent. He again uses the legal history of the term to show that its legal meaning was the former. He also uses a legal interpretive rule, noscitur a sociis, to argue that disproportion is the more appropriate interpretation of cruel, given that term comes in a clause that also bans “excessive” fines and “excessive” bail, terms themselves that focus on disproportionate effect. He shows that this interpretive rule existed at the time of the Bill of Rights. Thus, his analysis not only turns on the language of the law, but on the use of a specific legal interpretive rule that was applied to legal language at the time of the Clause’s enactment.

Scholars have recently tried to discover the original meaning of the Due Process Clause by giving the Clause its legal meaning rather than its ordinary meaning. Like Stinneford’s reading of Cruel and Unusual Punishment,  Nathan Chapman and  Michael McConnell interpret the term “due process” as placing into the Constitution certain common law understandings. As a result, they understand it as preventing the legislature from exercising judicial power or violating common law procedural protections.  Ryan Williams adopts a different interpretation of the Due Process Clause, but he also embraces the legal meaning of the Clause.  Williams maintains that the Due Process Clause changed meaning prior to the 14th Amendment.  He argues that over a score of antebellum court decisions abandoned an essentially procedural understanding and understood the Clause in a more substantive way.  Those legal decisions established a new legal meaning for the Clause.  Indeed, it seems unlikely that the ordinary meaning of due process would have changed during this period.

In our next post, we will provide some more examples of excellent recent originalist scholarship that relies on the language of the law.

Originalist Scholarship Relying on the Language of the Law–Part II

In our last post, we provided some examples of recent scholarship that rely on the view, which we have defended, that the Constitution is written in the language of law. They are not consistent with the view that the Constitution is written in ordinary language. In this post we provide some other important examples.

Scholars have even shown the language that looks most ordinary is better understood as part of the language of the law.  The Fourth Amendment provides: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The word “unreasonable” is sometimes used as an example of a vague word in ordinary language that renders the meaning of a constitutional provision indeterminate.   But Laura Donohue has argued that the word “unreasonable” should be instead read with the legal meaning of “against the reason of the common law.” As a result, the Fourth Amendment does not incorporate some free-floating reasonableness test, but a set of specific prohibitions of searches that violated the common law.  For instance, she argues that warrantless entry into homes except in pursuit of a fleeing felon was a paradigm example of a search against the reason of the common law and is therefore prohibited. Under this view, the Fourth Amendment is not a provision of magnificent, but indeterminate generality, but a relatively precise catalog of prohibitions on government action.

Other recent scholarship has suggested the language of the law is essential to deciding who can hold the highest office in the land.   The Natural Born Citizen Clause provides” no person, but a natural born Citizen . . . shall be eligible for the Office of President.”  It is not clear that the term “natural born Citizen” would even register in ordinary language. But if it could be read in ordinary language it would appear to require that only those born in United States territory were eligible for the Presidency. Under English law, however, a person born outside of the country could still be a natural born subject if they were classified as a subject under the laws at the time of their birth.  Thus,  Michael Ramsey argues a natural born citizen is a person who was a citizen under the laws at the time of his birth.   This recent scholarship has once again treated a constitutional provision as written in the language of the law and found its meaning in legal history.

The language of the law is also at the heart of reevaluating the meaning of the Necessary and Proper Clause. While an ordinary reading of the Clause may make it seem vague, a recent book argues that its concepts have clear foundations in eighteenth century Anglo-American law. One of the authors uses fiduciary law to conclude that the incidental powers authorized by the Clause had to be less than the principal powers specifically authorized by the Constitution. Another interesting conclusion from this analysis is that the meaning of the Clause requires that this power be used impartially and thus that the original Constitution applied some form of an equality principle to the federal government . Whatever the validity of this interpretation, it would be impossible to make it from the ordinary meaning of the words.

James Madison said in

Federalist #47:

"The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many and whether hereditary, self-appointed or executive, may justly be pronounced the very definition of

What Can Be Done with Felonious Members of Congress?

 by Frank Kuchar

In 1989 when the Exxon oil tanker Valdez ran onto the Prince William Sound’s Bligh Reef in Alaska and polluted the waters along 1,000 miles of Alaskan shoreline because its captain was drunk, protestors took to singing a parody of this old children’s song:   “What do you do with a drunken sailor, early in the morning?  Make him captain of an Exxon tanker.”

The question could be raised similarly about what do you do with a felonious, and perhaps traitorous member of Congress?  Well, for the Democrats, you place them in positions of leadership (at least until the member’s actions become known widespread).  By now I’m certain most, if not all, of those reading this have heard the reports of how Democratic Representative and former head of the Democratic National Committee, Debbie Wasserman Schultz, hired Muslim individuals to be her IT technicians. These technicians had access to hers and a number of other Democratic Representatives’ computers and who knows how much sensitive data in our government files.  These same individuals defrauded us taxpayers and one was even caught trying to flee the country.  We now learn that Congresswoman Schultz continued payments to him and some of the others after they had been blocked from having access to the House computer network and could not perform the work for which they supposed had been engaged.

So what can be done with members of Congress who act so egregiously?  There’s the standard answer – vote them out of office.  Yet as someone who twice attempted in the primaries to oust a long, long-term Congressman , that is seldom done as they have too much money, influence and too many connections.  However, there is another way, but it takes more political courage than those sitting in Congress seldom exhibit.

Article I, Section 5, Clause 2 of the Constitution contains this remedy:

“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a member.”

I would say that Congresswoman Schultz’s actions certainly meet that rather low bar of “disorderly Behaviour” wouldn’t you?  There should be an immediate appointment of a special prosecutor to investigate her actions, and when all is brought forth, the other members of Congress should expel her.  But we all know that will never happen because far too many of those in Congress could also fall into similar condemnation.  After all, there is that long-standing principle of “Honor among thieves” in play with members of our Congress.  Would that we’d just have a smattering of pure, plain old “honor”.

Things To Remember

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