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06/24/2018

Lynn Uzzell Replies to John McGinnis and Michael Rappaport
Michael Ramsey

At Liberty Law Blog, Lynn Uzzell: The Polylingual Constitution (replying to posts by John McGinnis and Michael Rappaport commenting on her earlier posts on originalism and history).  From the introduction: 

In a pair of posts for Law and Liberty, I argued that public meaning originalists are not doing a good job of communicating with those beyond their narrow circle—neither the public at large nor scholars in other disciplines. John O. McGinnis and Michael Rappaport both honored me with a response, and both responded with their own version of: while that may be true, it’s not important.

But this indifference to historical expertise beyond the confines of legal history, I still believe, will harm their credibility among the general public and among other experts. I had pointed out that attempts to malign the Framers of the Constitution (in particular, the recent book by Mary Sarah Bilder) will ultimately damage originalism in the minds of a more popular constituency, many of whom harbor originalist sympathies because they admire the Framers.

And in conclusion:

Judges must possess sufficient fluency in the language of power when determining the meaning of those political clauses within the Constitution. For instance, when Article II states simply that “the executive Power shall be vested in a President,” what did that generation mean by “executive power”? When Article I, Section 8, empowers Congress to tax for the “general Welfare,” do those two words (which have a political history—see the Articles of Confederation) broaden the scope of congressional power? Or is it possible that they were inserted to limit that scope? In such cases, courts must render judgments about the degree of power properly exercised by these branches; looking to William Blackstone, common law, or prior judicial decisions will be of no help. According to Madison, even looking to prior political theorists or political arrangements will be as likely to mislead the interpreter as to lead him aright. A different kind of interpretation is needed.

The historical research that McGinnis and Rappaport describe in “The Legal Turn” is a valuable and necessary condition for understanding the original meanings of the Constitution. But few outside of the world of lawyers and legal scholars could possibly deem it sufficient. Admittedly, there are individual clauses that had a long history prior to the Constitution’s framing and that were adopted by that generation with little or no alteration, such as “habeas corpus” and “due process of law.” The monolingualism of “The Legal Turn” is no doubt sufficient for navigating original meanings when traversing that limited terrain. But what about the rest of the Constitution?

(Thanks to Mark Pulliam for the pointer).