My friend Prof. Tom Bell (Agoraphilia) has an interesting post that partly responds to my post on Words That Have Different Meaning in Different Parts of the Constitution but largely builds on his Graduated Consent in Contract and Tort Law: Toward a Theory of Justification, 61 Case Western L. Rev. 17 (2010). Here’s Tom’s summary of his main thesis:
Eugene’s observations do nothing to save originalism or living constitutionalism from the charge that they offend the rule of law, however. The rule of law does not suffer if we read words in their constitutional context because ordinary speakers of ordinary English can figure out that “it” means “House” in one place and “Writ of Habeas Corpus” in another. But originalism and living constitutionalism raise a different problem, given that they base constitutional meaning on historical usage (in the first instance) or Supreme Court precedents (in the second). Only specialists in constitutional law—and not even all of them—have the expertise to engage in that sort of decoding process. Did you know, for instance, that “Property” includes government entitlements in the Fourteenth Amendment but not in the Fifth? If so, I doubt you figured it out from reading the Constitution, alone.
How do we fix this problem with both originalism and living constitutionalism? By rejecting those theories for one that gives the Constitution’s text its plain, present, public meaning….
Ratification may be necessary to make a Constitutional term effective in the first place, but it is not sufficient to make an original meaning binding on subsequent generations. People today, using ordinary English, almost certainly regard public flogging as unconstitutionally cruel and unusual punishment. In contrast, Justice Scalia has argued that an originalist (such as himself) should (and does) regard public flogging not as unconstitutional but simply, “stupid.” That he can offer so tepid a criticism of something almost any citizen would regard as beyond the pale demonstrates the salient gap between an originalist approach and a consent-based one. (Living constitutionalism’s abuse of ordinary English makes it susceptible to a similar critique.)
I appreciate the insight at the heart of Tom’s argument, but I’m just not sure what exactly it’s supposed to mean in practice, given the number of terms that either don’t have a “plain, present, public meaning” apart from either their originalist or precedential meaning, or that have such a “plain” meaning that makes little sense in context. Thus, for instance,
1. What is the “plain, present, public meaning” of “Congress shall make no law respecting an establishment of religion” coupled with “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law” (the text that might or might not make the Establishment Clause applicable to the states under a “plain, present, public meaning” approach)?
“Establishment of religion” doesn’t have a very clear modern meaning. I suspect it would be very hard to get a consensus among modern Americans about what it really means. Many won’t have thought much about what that phrase means (as opposed to what they think the government should or shouldn’t be allowed to do in the Constitution as they’d like it to be). Others might have thought about it, but in a way that has been heavily influenced by claims about original meaning or by claims about precedent (though most likely have only a sketchy sense of the relevant original meaning sources and the relevant precedents, and go mostly based on what they’ve heard from people on their ideological side).
Now for some phrases one might say that there is a plain meaning independent of original meaning and precedent — for instance, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed” has such a plain English meaning, at least as to its core principles, even if it’s one that diverges from precedent and likely from original meaning. (The Court has held that the right to trial by jury doesn’t apply to “petty offenses,” which is to say ones that carry no jail term or a jail term of six months or less.) But “establishment of religion” is not, I think, such a phrase, except perhaps insofar as it refers to the established church in England and similar countries; but that doesn’t tell us much about what else might constitute “establishment of religion,” and in any event my sense is that only a small fraction of Americans actually know of that meaning, and that the phrase thus doesn’t have such a meaning to all but a small graction of Americans.
2. Likewise, what is the “plain, present, public meaning” of “Congress shall make no law … abridging the freedom of speech, or of the press,” coupled with “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law”? To some English speakers, it might be that Congress can’t restrict speech or press at all, even to the extent of (say) banning death threats against the President, or punishing perjury in federal court, and that states likewise can’t abridge this “privilege[] or immunit[y]” by imposing libel liability and the like.
Other English speakers, though, might note that “the freedom of speech, or of the press” might refer to something less than full protection for speech or press, but rather some legal regime that we see as “the freedom of speech, or of the press” (much like “the right to marry” means something less than the right to marry anyone one pleases, regardless of whether one is already married, whether the other person is one’s close relative, whether the other person is very young, and so on). But if that’s so, how can we figure out the meaning of that phrase without returning either to original meaning or to precedent, depending on the constitutional theory of the English speaker seeking to determine the “plain, present, public meaning” of the phrase (to the extent that the English speaker has a constitutional theory, a subject that I suspect most English speakers in America have not seriously considered)?
3. Similarly, consider “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” “Suits at common law” could mean many things — among other things, it could mean “suits under judge-made rules rather than statutory rules,” “suits under rules that were originally judge-made, even if they are now codified, rather than statutory rules,” “suits applying Anglo-American legal rules rather than European ‘civil law’ rules” (and American courts sometimes do apply civil law rules, for instance when enforcing contracts that specifically call for the application of French law or Mexican law), and “suits that call for remedies that were traditionally administered by common-law courts rather than by courts of equity.” How are we to determine the “plain, present, public meaning” of this provision, given that the words are ambiguous, and most English speakers in America likely don’t have a fixed view on the subject?
4. Shifting the objection slightly, how about “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”? The plain, present, public meaning of the words — not the meaning ascribed by judges — would limit this to cases in which the defendant faces the death penalty or dismemberment. To be sure, quite a few laypeople might know that the Bill of Rights bars certain kinds of retrials in criminal cases generally. But to the extent they ascribe that meaning to the provision, that’s only because they know what the law is today, which is to say that they’re relying on precedent and not on the “plain, present, public meaning” of the text (except insofar as that meaning is constructed by precedent).
Now I suppose we could say that indeed the double jeopardy guarantee does not today apply to typical felony cases. But is that sort of approach, which interprets a legal document’s legalese phrases solely according to the meaning of their constituent words — without regard to the possibility that, as with other English phrases, they may have specialized idiomatic meaning, even if one that isn’t known to many nonlawyers — really sensible?
In any case, those are my quick thoughts about Tom’s intriguing post.