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 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.
In this third post on Original Methods Originalism, I want to conclude by explaining how original methods has the potential for signficantly limiting the discretion that judges exercise under an originalist approach. One of the key issues in recent originalist theory involves the distinction between interpretation and construction. For my purposes, it is not the distinction between interpretation and construction, but the distinction between interpretation and the construction zone that is important. Interpretation involves the process for determining the actual meaning of a constitutional provision. After applying the interpretive process, it is possible that the original meaning may not decide the…
In my last post I discussed the basic idea of original methods originalism and the different versions of that interpretive approach. Here I want to note a very significant implication of Original Methods Originalism: the possible convergence of original intent and original public meaning. I then want to discuss another aspect of original methods – the view that the Constitution is written in the language of the law and therefore should be interpreted as a legal document. The Convergence Thesis The different versions of original methods discussed in my prior post also have important implications for how originalism is conducted. For many…
One approach to constitutional originalism is called original methods originalism, which John McGinnis and I have developed. While the theory has received significant attention, the overall relationship of the different parts of the theory have not always been understood. Therefore, I thought it would be useful in a couple of posts to discuss various aspects of the theory and how they relate. In these posts, I will explore 5 different aspects of original methods originalism: 1) the basic idea, 2) the different versions of original methods, 3) the convergence thesis, 4) the language of the law thesis, and 5) the minimization…