Originalism and Linguistic Questions

The republic vs. democracy posts brought out some interesting responses. Some people in particular argued that supporters of originalism — which is to say, an original public meaning jurisprudence under which constitutional provisions are to be interpreted the way they were originally understood in common legal language when enacted — is inconsistent with my descriptivist approach to language. I’ve heard this bleed-through of constitutional interpretation debates into linguistic debates often enough that I thought it’s worth a brief comment.

My personal relationship with originalism is complex, and I don’t want to get into it here. Suffice it to say that there are good reasons for considering the original meaning of a constitutional provision when applying the provision — and that even many nonoriginalists (such as Justice Brennan) were willing to consider such original meaning, though not necessarily to view it as binding. I certainly think that even a hard-core originalism, under which the original meaning is generally binding when it is known, is a respectable position.

It’s just that this legal position should have no influence on linguistic debates about the meaning of terms in everyday modern discourse. Here’s why.

There are many arguments for and against original meaning jurisprudence, too many to canvass here. But the short version of the most relevant argument is this: Why is the Constitution binding on us? Because it was at one point enacted by processes that we think suffice to create authoritative law. We should therefore follow it as law, which requires us to follow its text. But the same rationale requires us to follow the text as it was understood at the time it was enacted, because it was that meaning that was endorsed by the authoritative legal processes. When the meaning of a term has changed since it was enacted, it makes little sense to use the modern meaning, since that meaning was never deliberately enacted into law.

Consider two practical examples. First, the Seventh Amendment says that “In suits at common law … the right of trial by jury shall be preserved.” “Common law” can mean several things. It can mean judge-made law (or, if you prefer, judge-found law, though that’s a legal fiction) as opposed to statutes. It can mean a particular body of law that was once made by judges, even if now it is codified in statute, as opposed to law that was originally created by a legislature. It can mean Anglo-American law as opposed to European civil law, which is derived from Roman law. Or it can mean law that is sufficiently linked to the sort of law historically enforced in common-law courts as opposed to the sort of law historically enforced in so-called courts of equity.

Today, in my experience, “common law” tends to bear the first meaning (judge-made law). That’s how I’ve seen it most often used. But it’s clear that at the time of the Framing the phrase “Suits at common law” referred to the last meaning, which is to say law historically enforced in common-law courts (which usually called for payment of damages) as opposed to the now largely long-defunct separate courts of equity (which is where injunctions and similar remedies came from). If we’re going to apply the Seventh Amendment because in 1791 enough states ratified it to make it part of the Constitution, it makes no sense to apply it in a way that’s completely different than how it was understood at the time — for instance, by applying it only to judge-made tort doctrines and not statutory ones — simply because this definition has become more common since 1791.

Second, the Copyright and Patent Clause empowers the Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Whatever one thinks about the relationship of the two clauses, it makes no sense, I think, to read them as speaking only about what we now call “science” and “useful arts,” and to exclude, for instance, practical engineering. It’s well-established that at the time the Clause was written, “science” generally meant knowledge, and “useful arts” referred to what we might now call technology (in the sense that the term “art” survives in “artisan” rather than “artist”). The changes in normal English idiom since then shouldn’t change the legal meaning of the Clause.

But none of this applies to linguistic questions about what words mean today. No-one, I’d hope, would say that we must these days use “science” just in the general sense of “knowledge,” or “useful arts” in the sense of technology. Today, in Standard English, those words mean what the typical educated user of the language understands them to mean. The views of the Framers are irrelevant to modern language, because people of the late 1700s have no authority over the language of the early 2000s.

Some of the Framers’ actions do have continuing authority over the modern legal system, because we have a legal system under which we are bound to follow the legal rules created in that era. It therefore makes sense to follow the then-existing meaning of the words included in those rules. But that is solely an artifact of the binding nature of the underlying rules — of our system’s continuing to treat the Constitution and its Amendments as a legally authoritative document. There is nothing like that as to mere linguistic usage of the time.

Likewise, today “democracy” in Standard English means what the typical educated user of the language understands it to mean, which includes both direct democracy and representative democracy — as I noted, it often meant this even around the time of the Framing, but it certainly has this broad meaning now. This would be true even if the word “democracy” appeared in the Constitution, with a different meaning (just as the word “science” and the phrase “useful arts” appear in the Constitution, without affecting the modern standard English meaning of those terms). But that word doesn’t appear in the Constitution; and even if the decision not to include the word reflects the Framers’ dislike of direct democracy, or even of the term broadly, that can have no authoritative effect over modern language.

The Framers were the drafters of the Constitution. They were not some sort of Academie Francaise, empowered to define the meaning of standard English. They certainly were never empowered to define the meaning of standard English for centuries after their death. Even if you firmly support original meaning jurisprudence, and think that constitutional provisions should be applied today according to their original meaning, nothing in original meaning jurisprudence should lead you to claim that English terms mean today in standard English what they meant in 1787.

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