But the common law meaning employed by Justice Scalia is clearer and more precise. Both the accuracy and determinacy of the Constitution are at stake in this debate. If the Constitution was written in legal language but we read it as having been written in ordinary language, we will misinterpret its meaning. While non-legal writing often has those qualities, lawyers have read legal documents over centuries to promote greater clarity and precision.
Rule of Law
This Liberty Forum essay will show that originalism today is taking an essential turn—the legal turn—that reads the Constitution as a legal text and thereby renders the document more accurately and precisely. We begin by putting the legal turn in the context of other developments in the history of modern originalism. We then discuss various new theories of originalism beginning with our own original methods originalism that read the Constitution using legal methods. Finally, we show that much of the best recent scholarship interpreting particular provisions explicitly or implicitly accepts the legal turn as the foundation for fixing the meaning of constitutional provisions.
The basic idea of originalism is relatively simple. Normatively, it is the view that this original meaning should largely be followed today. Questions of when it should not be followed, such as the degree to which it should yield to precedent, remained disputed, but are outside the scope of this essay. Despite the apparent simplicity of its core interpretive idea, originalist theory has gone through major changes in the years since it was reintroduced in the s as a theory of constitutional interpretation. In the s, originalism was usually described in terms of the original intent of the Framers.
The original intent version of originalism was criticized on a variety of grounds, including the difficulty of discerning the intent of numerous Framers or ratifiers and the claim that interpretive intentionalist methods were rejected at the time of the Framing. Partly as a result of this criticism, defenders of originalism turned to an originalism of public meaning rather than of original intent.
That public meaning was constituted by how a reasonable person would understand the constitutional text, not by the intent of the Framers or ratifiers. But public meaning originalism itself seemed to have a weakness, that of being indeterminate. According to this criticism, public meaning did not yield clear results because the public meaning of language was ambiguous or vague. Terms like due process were thought to be vague and thus incapable of fixing a determinate meaning. Consequently, some scholars turned to a theory styled the New Originalism in part as a response to this new criticism.
Interpretation sought the meaning of a provision and therefore insofar as the meaning was clear, originalism should follow it. But the New Originalists conceded that some of the Constitution was indeterminate and had to be constructed, rather than interpreted. Under this view, the ordinary meaning of the Due Process Clause might require fair procedures, but if the meaning did not specify what procedures were fair in what circumstances, the judge might have to decide the matter based on something other than meaning.
The New Originalism was in turn subject to substantial criticism. Nor did the New Originalists, according to critics, deliver the rule-of-law values associated with originalism because they offered no agreed upon method of filling the construction zone. The legal turn responds to this critique by using the majestic resources of the law to interpret and construct the Constitution.
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While there are different theories that jointly constitute the legal turn, these theories have one main thing in common: they all use legal methods either to interpret or construct the Constitution. Thus, the legal turn has resulted in a more legalized Constitution and one that will often strengthen the constraints on judicial discretion. Original methods originalism, the view embraced by the authors of this essay, was an early example of the legal turn.
It argues that that the meaning of a document such as the Constitution should be determined based on the interpretive rules that would have been deemed applicable to a document of that kind. In exploring the Constitution, we argue that the Constitution was written in the language of the law—the specialized language that lawyers use to speak and write about the law.
This language employs numerous legal interpretive rules to read a legal document. There are various types of these interpretive rules. One group includes canons of legal of interpretation, such as the rule of lenity or the rule against implied repeals. Such closure rules would themselves make for a more determinate meaning of the Constitution. Original methods would have an enormous impact on how one understands the meaning of the Constitution. We have shown that there may be hundreds of terms in the Constitution that either are patently legal such as Letters of Marque and Reprisal or have at least a legal meaning in addition to their ordinary meaning such as confrontation.
This large number of terms supports our claim that the Constitution is written in the language of the law. It also increases the determinacy of the Constitution, because the legal meaning of terms often have more precise meanings. One legal interpretive rule is key here. It is the rule that says terms that have both an ordinary and a legal meaning can be given, depending on context, their legal meaning.
This is significant, because the view that understands the Constitution as written in ordinary language would not interpret these terms as having a legal meaning.
Overall, original methods offers a view of the Constitution as a document infused with legal meanings. Other theorists have joined the legal turn in the last few years. William Baude and Stephen Sachs offer a very different version of the legal turn. But they do not argue that the problem is principally that the legal meaning of the Constitution has been neglected in favor of the ordinary meaning.
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Randy E. Barnett | Georgetown Law
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Georgetown University Law Center. In this book, legal scholar Randy Barnett elaborates and defends the fundamental premise of the Declaration of Independence: that all persons have a natural right to pursue happiness so long as they respect the equal rights of others, and that governments are only justly established to secure these rights. Drawing upon insights from philosophy, economics, political theory, and law, Barnett explains why, when people pursue happiness while living in society with each other, they confront the pervasive social problems of knowledge, interest and power.