The Volokh Conspiracy - When Is a Document "Clear"?

Apropos my evidence on what "free State" meant to the Framers, a commenter writes,

The author introduces extrinsic evidence when the document is internally consistent and clear within its 4 corners.

Some of the extrinsic evidence comes from unrelated political systems and writers unfamiliar with the new governing scheme created by the Framers. Extrinsic evidence supporting the internally consistent definition, such as lawmakers' floor statements, are not considered; indeed, only extrinsic sources supporting the author's definition definition are discussed at length.

This, I think, raises a broader question: How do we decide whether a 200-year-old document "is internally consistent and clear within its 4 corners," and what its clear, consistent meaning is?

Recall that we can never understand the document simply by looking within its own four corners: We have to look at the document's text coupled with our mental dictionary of what each term means. But it's possible that people of the era in which the document was written had a different mental dictionary; it's possible that terms such as "free State" or "militia" or "life or limb" or "common law" or "an establishment of religion" meant something different to them than they do now -- or meant something clearer or less ambiguous than they do now, or meant something vaguer or more ambiguous than they do now.

That's why I'm skeptical of "just the text, ma'am" interpretation, especially when it comes to old documents. It's always text plus dictionary, but when the dictionary is of a slightly foreign legal language, we need to do more research than just from reading the text.

My article on "free State" is meant to give a sense of what the phrase meant in the Framing generation's mental dictionary. That's why I don't hesitate to use instances of the phrase used in discussing ancient Rome, Renaissance Europe, or 1600s and 1700s England. I'm looking at what the phrase "free State" meant in the language of the time, and if it consistently meant something like "nondespotically governed country" in the works that formed the Framing generation's political and legal education, that's powerful evidence that the Framers continued to use it this way. (I'd also talk about legislative floor statements if they said something clear about the meaning of the phrase "free State," but they didn't.)

But more broadly, I wanted to write a separate post to stress the difficulty of focusing solely on the four corners of the constitutional text, stripped of "extrinsic evidence." I don't think you can understand the text without looking at extrinsic evidence of what the terms in the text meant at the time.

	[Eugene Volokh, June 15, 2007 at 7:05pm] Trackbacks When Is a Document "Clear"? Apropos my evidence on what "free State" meant to the Framers, a commenter writes, The author introduces extrinsic evidence when the document is internally consistent and clear within its 4 corners. Some of the extrinsic evidence comes from unrelated political systems and writers unfamiliar with the new governing scheme created by the Framers. Extrinsic evidence supporting the internally consistent definition, such as lawmakers' floor statements, are not considered; indeed, only extrinsic sources supporting the author's definition definition are discussed at length. This, I think, raises a broader question: How do we decide whether a 200-year-old document "is internally consistent and clear within its 4 corners," and what its clear, consistent meaning is? Recall that we can never understand the document simply by looking within its own four corners: We have to look at the document's text coupled with our mental dictionary of what each term means. But it's possible that people of the era in which the document was written had a different mental dictionary; it's possible that terms such as "free State" or "militia" or "life or limb" or "common law" or "an establishment of religion" meant something different to them than they do now -- or meant something clearer or less ambiguous than they do now, or meant something vaguer or more ambiguous than they do now. That's why I'm skeptical of "just the text, ma'am" interpretation, especially when it comes to old documents. It's always text plus dictionary, but when the dictionary is of a slightly foreign legal language, we need to do more research than just from reading the text. My article on "free State" is meant to give a sense of what the phrase meant in the Framing generation's mental dictionary. That's why I don't hesitate to use instances of the phrase used in discussing ancient Rome, Renaissance Europe, or 1600s and 1700s England. I'm looking at what the phrase "free State" meant in the language of the time, and if it consistently meant something like "nondespotically governed country" in the works that formed the Framing generation's political and legal education, that's powerful evidence that the Framers continued to use it this way. (I'd also talk about legislative floor statements if they said something clear about the meaning of the phrase "free State," but they didn't.) But more broadly, I wanted to write a separate post to stress the difficulty of focusing solely on the four corners of the constitutional text, stripped of "extrinsic evidence." I don't think you can understand the text without looking at extrinsic evidence of what the terms in the text meant at the time. Related Posts (on one page): Consulting Dictionaries Only After "Intrinsic Evidence" Shows Ambiguity: Textualism and Context (Especially as to Terms of Art): More on Supposedly "Clear" Texts: When Is a Document "Clear"? What Does "Free State" Mean in the Second Amendment?