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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.

Esquire:
"Recall that we can never understand the document simply by looking within its own four corners"

A bit conclusory, I must say...I realize this is a very fashionable view nowadays, but there IS a legitimate linguistic spectrum of views on this (albeit some much less popular than others), and starting with a word like "Recall" strikes me as an attempt to win an argument by assuming you've already won it...

As a parallel, there are religious faiths which believe in sacred text(s) as "inerrant." The view that ALL language is dependent on context for ALL meaning would seem to make such a faith irrational (which many here might indeed believe!), whereas so few who deride "four-corners-ism" seem to be willing to take it to this conclusion. Note that the language of various scriptures is much older than the US Constitution, and this doesn't stop adherents from believing that it's still inerrant (a much *bolder* claim than human law merely being capable of containing *some* immutable content) even though in many cases historians will never agree on "exactly" what various words/phrases meant to the respective ancient people around at the time...

Context means SOMETHING, but not EVERYTHING. Context helps refine meaning, but it is not the sole source of meaning. Indeed there are some meanings which could never be assigned to certain terms under any circumstances. Deconstructionists often try to win by positing one extreme (i.e., "Who gets to say what means what?"), but the opposite hypothetical is even more compelling: if there were *no* absolute rules of language, we would all have our own private language and nobody would ever communicate.

As an example: If I say "car," without any qualifiers, it could mean a wide variety of things. If I say "red car" it whittles the field down a bit, and if I say "red car with a hatchback" we get narrower still. Even just "car" alone could indeed be made more specific if some kind of context is available. BUT, there are certain things it could not be stretched to mean...while it's "gray" whether it could mean "truck," it's certain -- to a mathematical degree -- that it could not mean "Tuesday." Never. It is utterly forbidden, just as 2 + 2 could not equal 5.

Somewhat similarly (though not quite), I may need tools like a scale or ruler to measure the weight and size of my cat to a satisfactory degree...but I can RULE OUT certain weights and sizes based just on looking at the cat!
6.15.2007 8:33pm
Esquire:
(For the record, though, I don't think "militia" is one of those cases.)

;)
6.15.2007 8:37pm
Esquire:
(...or "free state.")
6.15.2007 8:48pm
Eugene Volokh (www):
Esquire: I tried to support "we can never understand the document simply by looking within its own four corners" with the sentence that followed: "We have to look at the document's text coupled with our mental dictionary of what each term means."

I would hope that this would make my assertion neither "conclusory" nor just "very fashionable," but almost inarguable. Of course we can never just understand the document simply by looking within its own four corners (or else I'd understand a document written in Chinese). We can understand it only by consulting (1) the document plus (2) the vast body of knowledge we have about what the words that happen to be used in the document mean to those who wrote and were expected to read the document (what I call our "mental dictionary").

Now say the document was written in an earlier time, when the words may have had different meanings. We can't understand the document without investigating whether the words' meanings have indeed changed. For that, we'd have to update our mental dictionary in light of extrinsic evidence of what the terms meant at the time. "[W]hen the dictionary is of a slightly foreign legal language, we need to do more research than just from reading the text."

What's conclusory or "very fashionable" about this?
6.15.2007 8:58pm
whackjobbbb:

just as 2 + 2 could not equal 5.


That reminds me of an interesting portion of mathematics called "abstract geometry". I laughed out loud when I heard those words, cause I thought they'd be trying to make 2+2=5, but I'da probably cried if I had to study it.

And don't even TRY it, Volokh! The Constitution was written in E N G L I S H , has never undergone complex, multi-tiered translations, and not much water has passed over the dam since it was written. Sure, bring on the "extrinsic" stuff, if it helps clarify things... but let's be vigilant that the extrinsic doesn't suddenly become the intrinsic, by some sleight of hand, which many of us see as the real problem these days.
6.15.2007 9:09pm
Esquire:
Prof. Volokh,

Oh, sorry, I misunderstood that sentence that followed as a continuation of your initial assertion, rather than of "support." (So much for my theory of absolute meanings!) I'll retract the "conclusory part." :)

Unfortunately though, I still do find the view that semantic meaning is *always* necessarily up for grabs to, at least, remain an somewhat arguable notion. While I agree with you on this particular issue (second amendment), I cannot concede that text could never bear any immutable meaning to any degree. The Chinese thing you raise stikes me as a non-sequitor, just like a young child may not know any language at all...in either case, however, the text that a person is looking at could still contain some piece of intrinsic meaning, even if any given person lacks the capacity to ascertain it.

I would never say ALL meaning is intrinsic, as I readily concede context matters. I only suggest that documents are at least capable or bearing some margin of meaning which is beyond contest (as in my "car" could-never-mean "Tuesday" example).

It does seem that both extremes can run into logic problems, but remember my position is only that there is a *mixture* of both absolute AND non-absolute (except for certain religious texts, as I mentioned above) meaning in most documents...
6.15.2007 9:15pm
whackjobbbb:
...remember, the first definition of "extrinsic" is "foreign", then there's "acquired" and "exotic" and "outer" and "mysterious", and "imported" and "superficial" and then... ... well you get the idea.
6.15.2007 9:17pm
JB:
I think rather a lot of water has passed under the dam since then, actually. Remember, it's more than half as long ago as Shakespeare's time was.

It would be as ridiculous an assumption and more to state that the words in the Constitution mean what we say them to mean now, as to state that they mean what the writers of books the Founders read meant. In each case, you're assuming that the reader (in the case of the Constution, us; in the case of the Founders' libraries) had the same definition as the writer (in the case of the Constitution, the Founders; in the case of the Founders' libraries, the original authors) had. I'd be more confident in applying that reasoning to the Founders' libraries than I would to the Constitution.
6.15.2007 9:25pm
ys:

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?

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.


I thought this was already proven pretty decisively by a guy named Gödel (never mind some people's allergy to formal math). The practical question, as applied to the topic of this posting, is just how far outside of the starting set one would have to go to make the original one acceptably complete.
6.15.2007 9:31pm
Esquire:
Would anyone argue that there is so much wiggleroom in mathematics? What about numerical values in the constitution? Do we need context, etc., to tell us what "2/3" or "3/4" means? Is there any context in the world that could make 2/3 = 1/2? It seems to me that the syntax could change (e.g., Roman numerals, Chinese, etc.), but not the semantics. Of course, I'm open to reasoning otherwise...
6.15.2007 9:31pm
ys:
True. Gödel does not say validation of all statements requires going outside the set, just that such statements are sure to exist.
6.15.2007 9:39pm
PDXLawyer (mail):
An outstanding point about documents needing a dictionary. Its pretty clear from reading the Declaration of Independence, among other documents, that when the founding generation used the word "state" they often meant "sovereign political entity." That's why the senior cabinet officer is called the Secretary of State.

But related to that, any dictionary is only useful if one has an idea of the reality of the things described. The term "computer" obviously would have had a completely different meaning in 1790 than it does today. And, this is not just limited to physical technology - governmental "technology" and understanding of economics has evolved, too. As technology shifts, concepts that used to be "obvious" become obscure.

What does an "establishment of religion" mean? Well, the Church of England was an "established" religion, so its practices in 1790 give a clue. Similarly, Virginia disestablished the church at about that time, so it would be relevant to look at how the Virginia church's status and functions changed to determine what the founders thought distinguished an "established" church from a disestablished one.

Similarly, I know that England enforced laws disarming Irish Catholics at about this time (and there were severe disturbances in Ireland relating to this). IIRC there may have been similar laws enforced in Scotland following the failed rising of Bonnie Prince Charlie during the reign of George II. I don't know that there was anything like this in colonial America, but I presume that there was some sort of order by the colonial or military governor in Boston in 1775 disarming the Massachusetts militia which was the immediate cause of the battle of Lexington. I would think that all of this background material would be helpful in understanding what sort of laws the Framers were reacting against. I've never seen any material bringing together this legal history, which is now past our general memory. In 1790, however, all of this stuff would have been very recent - more recent to the Founders than World War II is to us. There would have been no need to recapitulate all of it in the debates at the founding any more than there is a need today to recapitulate the run-up to WWII when we use the word "appeasement."

Does anybody know of a book, article or note on this? I find myself torn on the Second Amendment because my understanding was that colonial militia used a full range of weapons, including at least some heavy weapons. The implication of this combined with an individual rights viewpoint is that I have a 2dA right to own a nuclear bomb, which seems an odd result.
6.15.2007 9:57pm
Esquire:
ys:

Yes, that's my understanding as well (although I've been reading more Russell than Godel thus far...). I really find the philosophy (and the psychology too) of language pretty fascinating in general (especially with the integrated studies of mathematical and symbolic logic, which is pretty hot in comp sci); although, I probably lean more towards some of the less-common views at this point.
6.15.2007 10:09pm
whackjobbbb:
JB, I wouldn't consider Shakespeare's writings to be composed in english, although perhaps the roots of his language are similar to what the Founders and we use. I can barely make out what he's put out, maybe because it's more poetry than anything, but the Founders seemed to write pretty clearly, and I think much of their document can be laid out in front of today's audience and be readily understood, which you can't say about Shakespeare. I'm annoyed to no end when people laugh at the "right" parts... and I'm sitting there dumb and clueless... because unless I've read the Cliff's notes I can't truly follow all the action (but a good actor makes all the difference!). With the Constitution, you pick it up and go right to work.

And yes, I don't consider a couple centuries worth of water to amount to much, in terms of time. Great events occurred in that time, no doubt, but ideas are still ideas. Somebody used the example elsewhere that locusts referenced in ancient religious texts had gone extinct or something, so how could today's reader make use of that portion of the text re locusts? Ideas don't go extinct (I hope). I think these ideas are readily accessible, and Volokh's concept of a "dictionary" can be a useful part of their accessibility (a "botanical reference", as long as we're blending science and locusts and all in here!), just hopefully that dictionary is a tool to be used and not a tool to be used on.
6.15.2007 10:14pm
wooga:
What does an "establishment of religion" mean?

PDXLawyer,
I think expanding the quote a little: "respecting an establishment of religion," with an emphasis on the "an" provides necessary context. To me as a modern english speaker, "an establishment," as opposed to "the establishment," means the First Amendment is using the 'establish' word as a noun, not a verb. If this noun/verb distinction is correct (I'm no colonial linguistic scholar), analysis of the establishment clause becomes a whole lot easier.
6.15.2007 10:23pm
whackjobbbb:
And here's where we get all wrapped up in goo. I expect the definition of "establishment" is a fairly easy thing to pin down, then... now... whenever, and it's always been a noun no matter which article you plug in there, I would think. If we quickly settle on a simple definition of establishment, we might then better focus on the "Congress shall make no law..." portion of that text, which is equally or more clear in its meaning, a meaning which seems to have slipped away from us somehow (when did Massachusetts finally do away with their state-sponsored religion?).
6.15.2007 10:34pm
Stephen C. Carlson (www):
I have a feeling "free state" is the two word phrase you had wanted to look in an old translation of Livy. How did that ever turn out?
6.15.2007 10:39pm
Eugene Volokh (www):
Stephen C. Carlson: Still in progress.
6.15.2007 10:57pm
illspirit (mail):
Seeing as the collectivists have for years tried to convince the world that the Founders were somehow explicitly referring to the then non-existent National Guard when they said "militia," I would think that bringing extrinsic context to the debate is in order. On the other hand, and quite paradoxically, many of these same collectivists already attempt to inject extraneous context of their own with absurd claims such as "arms" only referring to the muskets of the day.

So, yes, given how the proverbial waters have been have been muddied for the last several decades with modern language, uncovering the archaic context of the words is essential to uncovering the truth.
6.15.2007 11:09pm
ras (mail):
To underscore your original point, Eugene, I would say that you are a nice man (in the current sense of the word). But if Chaucer had said the same thing, he would have meant it very differently.
6.15.2007 11:39pm
Anderson (mail) (www):
I think I quoted this a while back, but of course the classics are perennial: Montaigne, "Of Experience":

Whence does it come to pass that our common language, so easy for all other uses, becomes obscure and unintelligible in wills and contracts? and that he who so clearly expresses himself in whatever else he speaks or writes, cannot find in these any way of declaring himself that does not fall into doubt and contradiction? if it be not that the princes of that art, applying themselves with a peculiar attention to cull out portentous words and to contrive artificial sentences, have so weighed every syllable, and so thoroughly sifted every sort of quirking connection that they are now confounded and entangled in the infinity of figures and minute divisions, and can no more fall within any rule or prescription, nor any certain intelligence ...
6.16.2007 12:15am
George Lyon (mail):
I keep hearing the musket line, but no one ever points out that by this time the colonists had the modern day equivalent of sniper rifles -- i.e., the Pennslyvania Rifle, which far outshot the musket. This comes from the Military Channel which recently ran a program on the evolution of the sniper rifle.
6.16.2007 12:25am
Antares79:

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



I should have said, "the document is internally consistent and thus clear within its 4 corners." That is, one can get a clear definition of "state" on context alone without extrinsic evidence.

Assume you have no dictionary and have no idea what "state" means. You read the Constitution and Bill of Rights, and for 116 out of 116 times the documents use the word "state," context alone indicates that "state" means one of the 50 recognized jurisdictions and not the District. You would judge, based from this text/context, that the "state" in the 2d Amend referred to the same. Of course, EV is correct that one still needs a dictionary and/or understanding of English for the remaining words, but these sources aren't typically considered extrinsic evidence. (perhaps because dictinaries and language knowledge offer every definition of a word, whereas typical extrinsic evidence does not)

This the goal of textualism, yes? That all words in a document have clear meaning based on the text of the document alone, coupled with a knowledge of the language of the text? (of course even textualism allows departing from a dictionary definition where the text specifically redefines a word)

The political branches ought to have incentives to observe textalist rules. Even assuming that the change from "country" to "state" was stylistic, to rely on extrinsic evidence to correct the textualist mistake eliminates this incentive. It permits Congress to pass whatever ambiguous, permissive language will get a majority, improperly delegating to the courts the determination of what the law ought to be.
6.16.2007 12:41am
ras (mail):
Antares,

Playing devil's advocate ... then does "cruel and unusual punishment" mean punishment that was cruel and unusual in the 1700s, or just punishment that would be considered cruel and unusual today, since standards have changed?

For that matter, does "cruel and unusual" truly mean cruel and unusual anymore, or does it now mean cruel or unusual; i.e. even if the usual punishment is now considered cruel, is it still OK on the basis of being usual?

I agree w/your theme that slippery slopes can occur when words lose their objective meaning, or are allowed to thru sophistry. But this makes Eugene's orig pt all the more valid, not less: that a word's meaning can change over time, and therefore a constant interpretation requires that we allow for this, much as a navigator must allow for drift.
6.16.2007 1:19am
K Parker (mail):
Folks,

All of those who think you can derive the meaning of a text from internal inferences only ought to be condemned to a semester or two of studying in the antiquities, where we don't any longer have a shared, common dictionary and hapax legomena are the order of the day.

You only think that internal evidence is enough because the dictionary is implicit: it's internalized in each of us as English speakers. Take it away and you realize how important it is.
6.16.2007 2:05am
K Parker (mail):
OK, after rereading the comments at the original post, I think I should hasten to add that in referring to internal and external I'm speaking as a linguist and most certainly not as a lawyer.
6.16.2007 2:13am
Bruce Hayden (mail) (www):
That reminds me of an interesting portion of mathematics called "abstract geometry". I laughed out loud when I heard those words, cause I thought they'd be trying to make 2+2=5, but I'da probably cried if I had to study it.
The time I remember it was in some class where we were studying non-Euclidian geometries. We assume that our world is flat, because it effectively is for us. And in that world, parallel lines don't intersect and the sum of the angles of a triangle is 180%. But if you instead mapped your geometry onto a sphere, parallel lines do meet and the sum of the angles of a triangle is greater than 180%. It was actually one of the most fun math courses I had in college, a whole term of "let's pretend".

But as valid here is Eugene's 1+1=10 in an earlier post, or in this case, 2+2=10 or 2+2=11. All are quite valid in our Euclidian space - the context that has changed here is the arithmetic base (and, yes, 10=11 here, but that doesn't mean what most people think it does, but rather that 10 base 4 is equal to 11 base 3 (and 4 base 5 or greater)).

The implied context here is the number base - we assume base 10 because that is what most of us use almost all of the time. But I spent a number of years where 5+5=12 and not 10 every day at work. It can be difficult balancing your (decimal) checkbook after a certain amount of that.
6.16.2007 11:10am
Bruce Hayden (mail) (www):
It does seem that both extremes can run into logic problems, but remember my position is only that there is a *mixture* of both absolute AND non-absolute (except for certain religious texts, as I mentioned above) meaning in most documents...
I am not sure if there is such a thing as absolute meanings. Rather, I would suggest that we are seduced into a belief in such by being reasonably close in time and distance so that the differences in meanings are not glaring. Someone above mentioned that the English of Shakespeare is not English. Rather, I would suggest that it isn't the English that we speak and know. Indeed, there are plenty of words and usages in English today that differ significantly between the two sides of the Atlantic.

I think that EV has a good approach here. While interpreting the sources that he is doing could be faulted the same way that he faults those who try to interpret the Constitution, etc., through modern language usage, I would suggest that the difference is that of volume and context. If you just limited yourself to the Constitution, you could possibly be excused at believing that "state" just meant the various states that were uniting. But here, he has volumes of works that the drafters of our Constitution had read, studied, and even written, and those volumes of work repeatedly also use the word in another context.
6.16.2007 11:28am
whit:
if one is going to use the musket line for the 2nd, then one must use the pen and paper line for the 1st. there was no internet, no television, and no radio at the time of the writing of the constitution. so, if the 2nd doesn't apply to glocks, etc. then the 1st does not apply to internet, tv, or radio.

it's a pretty silly distinction
6.16.2007 7:29pm
markm (mail):

George Lyon (mail):
I keep hearing the musket line, but no one ever points out that by this time the colonists had the modern day equivalent of sniper rifles -- i.e., the Pennslyvania Rifle, which far outshot the musket. This comes from the Military Channel which recently ran a program on the evolution of the sniper rifle.

There were even breechloaders in the Revolutionary War. A British officer (Major Ferguson) spent his own money to equip the unit he commanded with a breechloading rifle of his own design.
6.16.2007 7:41pm