Michael B. Rappaport and John O. McGinnis (University of San Diego School of Law and Northwestern University - Pritzker School of Law) have posted The Constitution and the Language of the Law on SSRN. Here is 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.
Important and brilliant. There is much in this piece with which I agree, and much that will require study and thought to assess. I am still skeptical about the Language-of-the Law Thesis in its strongest form; that is, the claim that the Constitution is written in a distinct language or dialect. It seems to me that it is more plausible to see the Constitution as written in late-Eighteenth Century American English, which includes a variety of technical terms drawn from various linguistic sub-communities. Just as sea captain's log is written in English and not "the language of the Sea" (except in a metaphorical sense), I think the most likely explanation for the language of the Constitution is that it is written primarily in the standard version of the language that draws on conventional semantic meanings that were widely accessible. But I endorse the claim that a good deal of the language in the constitution consists of terms of art. Highly recommended. Download it while it's hot!
