Words That Have Different Meaning in Different Parts of the Constitution

A law professor friend of mine raised this question: Could the same word have different meaning in different parts of the Constitution (especially ones that were enacted at the same time, or very nearly at the same time)? Of course, we would normally presume that the same word has the same meaning. (For more on this, see, e.g., Akhil Amar’s Intratextualism article and Adrian Vermeule’s and Ernie Young’s critique of that article.) But could this presumption be rebutted by sufficiently persuasive contextual evidence, based on the surrounding text or on historical evidence? Naturally, these questions have both a descriptive component — what was the meaning of the word in context as it was likely understood during the era in which the Constitution was enacted — and a normative component, which is how modern law should understand the meaning of the word in a particular section.

As readers of this blog might gather from my past posts, I think that words can indeed have different meaning in different parts of the Constitution, if the contextual evidence for such different meanings is sufficiently strong. That, for better or worse, is how English, including legal English, works and has long worked: The same word can have many meanings, some radically different from each other and some slightly different from each other. Maybe it would be better if this weren’t so, or if drafters of legal documents were always careful to use only one meaning of each word in a document. But even careful legal drafters are still basically English speakers, and have the habits and conventions of English speakers. So descriptively it is possible that a word was used one way in one provision and another in another, and would have been understood that way at the framing.

And normatively there is no value, I think, in textualism that ascribes meaning to a text that differs from the likely commonly understood meaning of the word in context, especially when the understanding was likely so both at the Framing and today. One can certainly argue against focusing on original meaning or textual meaning, and looking instead to precedent, to one’s sense of evolving social norms, to one’s sense of felt practical needs, or whatever else — my point here is simply that if one cares primarily about text, it makes little sense to ignore the original meaning of the text. (Even if one thinks that sometimes ordinary plain language modern meaning should trump the original meaning, a view that I do not take, that ordinary plain language modern meaning generally turns on context as well.) There’s a lot to be said for attention to text in constitutional interpretation. But textualism isn’t always easy, and can’t ignore the complexities created by context.

So that’s the general point. Here are two specific examples.

1. Consider these two sections from article I, which happen to be right next to each other (emphasis added):

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

As I see it, “Place” in the first section (let’s call it the Adjournment Clause) refers to a physical location, but “Place” in the last part of the second section (the Speech or Debate Clause) refers to an institution — two related but not identical meanings of the word. I take it that if Congress wanted to move from the Capitol to, say, the George Washington University law school, it could do that in between sessions but not during a session. That’s because that particular GW building is “any other Place” than the Capitol. But if Congress does move from the Capitol to GW between sessions, and then tries to censure or expel a member for something he did in a speech or debate back in the Capitol, he can’t object on the grounds that he’s now being questioned “in any other Place” than the Place in which his speech or debate occurred.

So Congress sitting at GW is in an “other Place” than the Congress sitting in the Capitol for the purposes of one section, but it’s the same “Place” for the purposes of the next section. How can this be? Because that’s the way ordinary English, in which the Constitution is written, operates.

Likewise, say that the Congress provides that a federal court can sit in the House of Representatives chamber. I take it that a Representative still couldn’t be tried in that court for what he said in a speech or debate in the House. Though the part of the session the House that happens in the room after an adjournment is seen as not being in “any other Place” than the pre-adjournment session, a courtroom trial that happens in the same room is seen as being in “any other Place” than the session of Congress. “Place” for purposes of the Adjournment Clause is a physical location; “place” for purposes of the Speech or Debate Clause is an institution.

2. Likewise, “Law” in Article III of the Constitution is used to mean the opposite of equity, in the old division of legal claims and equitable claims that still remains today in the distinction between legal remedies (such as damages) and equitable remedies (such as injunctions or specific performance): “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” But in other places, the context pretty clearly suggests that “law” refers to all legal rules, both in common law and equity.

For instance, the Supremacy Clause says “the Judges in every State shall be bound [by this Constitution], any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Unless you think this means that state courts are free to ignore the United States Constitution in issuing injunctions, “Laws” must refer to equity principles and not just common-law principles.

Similarly, the Fifth Amendment provides that no person may be deprived of property or liberty without “due process of law.” But there “law” must include equity principles and not just common-law principles, even though Article III uses “law” as the opposite of “equity”: When federal courts decide “Cases in Equity,” they are free (within the boundaries of the rules they are applying) to take property from one party and give it to another -– for instance, using remedies such as specific performance — or to issue injunction that restrict people’s liberty, because even an action in equity can be said to provide “due process of law.” Indeed, the Seventh Amendment’s provision that the jury trial shall be preserved in common law cases, coupled with the Fifth Amendment’s provision that “due process of law” is applicable in all cases involving property or liberty, makes clear that “due process of law” can be had even in cases not arising under the common law. (Since the Bill of Rights was ratified only two years after the body of the Constitution, I treat the two as roughly contemporaneous for interpretive purposes; but if you don’t accept that, then consider just the Supremacy Clause.)

If I am right as to these examples, then this shows that the Framers did what skilled users of the English language routinely do: used words in different senses in different contexts. It’s still reasonable to presume that the same word has the same meaning in different parts of the document, but that presumption is rebuttable by context. Sensible textualism has to take this into account.