For the most part judges serve as a critical link in the ordinary flow of administration.
When Leandra English, former chief of staff to the former director of the Consumer Financial Protection Bureau, asked a federal judge to block President Trump’s appointment of Mick Mulvaney to replace her departing boss Richard Cordray, and to install her as the CFPB’s rightful leader, Judge Timothy J. Kelly of the Federal District Court in Washington, D.C., denied her request. Yet English’s legal team, rejecting the idea that President Trump held the directorship in his hands pursuant to the Federal Vacancies Reform Act of 1988 and Article II of the Constitution, has since vowed to continue its resistance to the President’s action.
The Constitution’s aim to limit the influence of factions and passion gets the lion’s share of attention among modern readers of The Federalist. To be sure, these are critical aspirations, as much or more so today as they were in the 1780s. These aspects of the Constitution’s underlying theory, however, so dominate discussion that students often overlook another theme developed throughout The Federalist, the significance of knowledge and information in policy making, and how constitutional structure can elicit more rather than less knowledge and information.
Nathaniel Persily, a professor at Stanford Law School, wonders whether democracy can survive the internet. The immediate impulse for his question is the election of Donald Trump, who used social media to get around the established institutions, principally the mainstream media, that mediate between candidates and citizens. In particular, Persily fears that fake news circulating in social media empowers demagogues, of which a prime example in his mind no doubt is Donald Trump himself.
The essay is an exemplar of progressivism, because it puts its faith in institutions dominated by progressives to safeguard democracy rather than the Constitution. But to one who is not a progressive, Persily’s fears are unwarranted and his solutions are a source of concern. Begin with fake news. It is not a phenomenon of the internet. Political campaigns in the early republic were vicious because of outrageous and often false charges in the partisan press. Adams was said to be a monarchist focused on establishing a dynasty with his son; Jefferson was accused of being an atheist. He was also alleged to have sired children with one of his slaves. That last bit of dramatic information would have been labelled as fake news at the time by the self-designated great and good—the real fact checkers of any age–, but it appears to have been true.
The Constitution has launched hundreds of debates about its meaning. But before these disputes can be settled an underlying clash of visions about the nature of its very language requires resolution. One view holds that the Constitution is written in ordinary language and is thus fully accessible to anyone with knowledge of the English language. The other, in contrast, is that the Constitution is written, like many other documents with legal force, in the language of the law.
The ordinary language view is often assumed both by the Supreme Court and scholars. But in a new paper Mike Rappaport and I show that the better view is that the Constitution is written in the language of law and that this has important implications for constitutional interpretation. Surprisingly, no one has ever considered how to determine whether the Constitution is written in the language of the law or in ordinary language.
We describe the factors to determine whether Constitution is written in the language of the law. The language is key and the paper for the first time catalogues all the technical terms in the original document. We show that the number of legal terms in the Constitution is much larger than most people recognize and probably numbers about one hundred!