There has been a recent debate on the Volokh Conspiracy and the
Originalism blog here
, and here
among Ilya Somin, Michael Ramsey, and
Timothy Sandefur, over whether the meanings of the terms used in the
U.S. Constitution should be taken from lay English of 1787, or from
legal English. My responses are as follows:
Constitution provides critical guidance on how to strike the
balance between ordinary and specialized legal meanings of its
terms: It calls for most important legal issues to be adjudicated
in jury trials, with juries selected more or less at random from
the general community, which hopefully results in a panel of
twelve mostly reasonable persons, or who become more reasonable
when thus empaneled. But the original meaning of "jury trial" was
that all legal issues be made to the jury, not just to the judge,
so that in reaching a verdict, the jury is also reviewing the
legal argument and the decisions on points of law made by the
judge. Many trials will involve subtle legal issues with which the
jurors will not be familiar at the outset, but for which they
hopefully will become sufficiently knowledgeable by the time they
are asked to render a verdict. That essentially defines a standard
of interpretation that is accessible to ordinary people during the
intense legal education that is a trial, but not necessarily known
to them before that process begins.
There is also guidance from the way the Constitution was ratified:
By conventions in each state, elected by the people, but composed
of a high proportion of lawyers, who also dominated the debates.
Finally, we see the process during the Philadelphia Convention,
when members unsure of the meaning of some of the proposed
language (such as "ex post facto") referred to Blackstone or other
legal authorities to settle the question. That is a microcosm of
how they expected other constitutional terms to be resolved.
people who elected the ratifiers mostly did not do so on the basis
of subtle understanding of the Constitution. They seldom if ever
even debated most of the issues we consider important for deciding
cases today. Some had a general support (based on the expectation
Washington would be the first president), or opposition (fear of
change), but mostly because they liked and trusted the ratifiers as
And these three points are not about a single resolution, but
insights into a more general interpretative regime the Framers and
Ratifiers expected to play out, sometimes pulling in one direction,
sometimes in another. There is not an algorithm to be found.
But they did expect the Constitution to be interpreted by legal
elites, as they expected legal issues generally to be. That's what
they had courts and lawyers for. But those courts were open to lay
interpretation in one important way: the jury. However, while legal issues were originally supposed to be argued
in the presence of the jury
(unlike the practice today), the
jury, along with the judge and opposing lawyers, expected the trial
process to be an intense exploration of the laws involved, in which
all participants learned to understand the legal issues, and when in
doubt about what legal terms meant, to consult legal authorities. As
independent-minded as they might be, respect for expert authority
was the prevailing paradigm, and one they not only expected would
continue, and could not conceive of doing things otherwise, but
comprised an essential part of the meanings of the terms used, not
only in the Constitution, but in law generally.
Yes, one of the "populists" was Chief Justice John Marshall, largely
self-taught in the law and ignorant of legal history, when he
invoked lay meaning of the term "necessary" as "convenient" in McCulloch
. Jefferson and Madison didn't agree, and I am
disposed to go with their Whig approach to interpretation, as
distinct from Tory ("Mansfieldism"), or Monarchist. There were those
three schools of common law interpretation, and at the Founding, the
prevailing one was Whig, at least during the Jeffersonian Era.
Proper interpretation (or construction) is not a matter of following
a rule to be found, but a complex process constrained by structures,
procedures, and common law rules of interpretation, represented in
part by the legal maxims.
After many decades of research, I have reached the point where I can
quickly resolve almost any constitutional question in a way that
seems congruent with the thinking of the Founders, to the extent
that can be discerned. But if graphed it would look like an
extremely complicated flow chart, that even includes some
nondeterministic decision nodes. Imparting that to others, however,
is a challenge.
The alternatives are misframed by use of the terms "elitist" and
"populist", which are distinctly modern terms, not 18th century
terms. The proper distinction is between (legally) "learned" and
"unlearned", and that is the way even lay persons would have
distinguished the two approaches. We find no significant evidence
that any laypersons in the founding era insisted on "unlearned" use
of what are legal terms because they are used in a law, which makes
them legal terms by definition. The average man in the street in
1787, if asked for the meaning of a term he didn't know, and told it
was being used in a law, would either ask someone he trusted who was
learned in the law, or look it up in a copy of Blackstone. I find
not a single instance of anyone in the era insisting on his own lay
meaning over that of legally learned person. That just is not the
way the people of that era thought.
The insistence on unlearned use of words in serious fields, over
learned usage, is a much later development, mostly among uneducated
rural Western and Southern persons in the late 19th century, and
largely among recent immigrants, who felt belittled by the educated.
That disdain of the uneducated by the educated and resentment by the
uneducated was not a cultural divide in the 18th century. There were
social distinctions, but everyone respected the educated.
The first thing we do, let's kill all the lawyers.
Nay, that I mean to do.
Sixth, Part 2 Act 4, scene 2, 71–78
There has always been tension between laity and the elites, between
surrender and defiance, but the opening of the frontier of the New
World transformed that tension in an important way. The bargain
between laity and elites became not deference, but the lay demand
that the elites persuade them by explaining what they propose and
asking for their consent. They in turn agree to make the effort to
understand well enough to decide wisely. That is not full expertise,
but it is just enough expertise, hopefully, for a particular
decision, to get through the day.
The same bargain applies to citizens, lawmakers, and law. Lay
citizens don't expect to have expert knowledge of all law, just
enough to make decisions in their own lives, but that includes
consenting to the laws that do affect them, especially the
Constitution, which affects everything and everyone.
But for making decisions in legal cases, the lay jury provides the
standard. The key element, which has been largely removed from
current court practice, is for all legal arguments made to the judge
to also be made to the jury, not for them to decide motions of law,
but to review those decisions and then either grant or withhold
their consent in their verdict. It doesn't work to "protect" them
from being "confused" by the legal argument. If they can be
confused, then the problem doesn't lie in presentation of the legal
argument, but the soundness of it. Current practice, by withholding
legal argument from juries, also destroys the fundamental bargain on
which constitutional legitimacy rests.
The problem, of course, is that the initial adoption of a
constitution and the knowledge required to do that wisely, may not
be sustained for the followthrough needed to maintain compliance
indefinitely. In many ways, that requires more knowledge and talent
than founding did, because there are far more competing forces to
deviate from it. Our species may not be up to the challenge.
Constitution Society http://constitution.org
13359 N Hwy 183 #406-144 twitter.com/lex_rex
Austin, TX 78750 512/299-5001 jon.r...@constitution.org