Home > Journals > WMLR > Vol. 59 (2017-2018) > Iss. 4 (2018)
William & Mary Law Review
Abstract
A long-standing debate exists 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 unambiguously technical, and terms, like “good behavior,” that are ambiguous 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 whether a term should be given its legal meaning or its ordinary meaning.
The Article explains how to determine whether a document is written in the language of the law. Unsurprisingly, 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, a document is more likely to be written in legal language because that language allows more precision. The language of similar documents provides additional evidence. That other constitutions at the time were written in the language of the law 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 one hundred. Moreover, the Constitution’s text assumes the application of legal interpretive rules, both blocking the operation of certain legal interpretive rules and calling for the application of others. 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 suggests that original-methods originalism is the correct form of originalism, because the Constitution’s legal interpretive rules are crucial to accurately determine its meaning. Practically, the richness of the idiom of the language of the law provides resources to address otherwise unresolvable interpretive questions. As a result, much of modern originalist scholarship about specific provisions depends for its force on reading the Constitution in the language of the law.