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Michael Ramsey


Gerard Magliocca: Is Washington D.C. Unconstitutional? (UPDATED: No)
Michael Ramsey

At Balkinization, Gerard Magliocca asks: Is Washington D.C. Unconstitutional? (because Article I, Section 8 gives Congress power of legislation over an area "ten miles square" to "become the seat of government" but the modern District of Columbia is over 60 square miles in area). 

Interesting comments, too, though some of them miss Professor Magliocca's point, which I take to be that some textual provisions may seem ambiguous on their face but become clear as a historical matter upon investigation of context.  That is consistent with, and indeed I would say a central element of, the dominant modern versions of textualist originalism.

UPDATE: Brett Bellmore writes to say:

I think the consensus [in the comments at Balkinization] is that, if that was [Professor Magliocca's] point, he chose a really bad example, because "10 miles square" isn't any more ambiguous today than 200 years ago. Should have looked for a textual provision which WAS "ambiguous on its face".

At first I was inclined to agree with Professor Magliocca.  I asked a few people who didn't have much connection with constitutional law (or math) how big an area "ten miles square" was -- and got a variety of (sometimes bewildering) answers.  But then I found Ask Dr. Math, who, as it happens, was asked this exact question (not in the context of the Constitution) ... and the Doctor's view was that "ten miles square" unambiguously means (today, to a mathematician) 100 square miles.  So perhaps this is an example where "ordinary meaning" is ambiguous but informed meaning is clear.  (See also this article).

Two further thoughts:   (1) My guess is that Professor Magliocca's example seems unambiguous (if it does) because nothing much turns on it as a practical matter.  If it implicated a serious current political issue, I expect there would be more disagreement on the "plain" meaning.  (2) From an originalist perspective, it would be better if Professor Magliocca was right, because that would illustrate the power of originalist inquiry to clear up what appear (wrongly) to be textual ambiguities.  So perhaps we should (as Mr. Bellmore suggests) look for better examples of the same phenomenon.

FURTHER UPDATE:  Brett Bellmore adds, on point (1) above --

That's one of my major complaints about living constitutionalists going on and on about "ambiguity". Once you decide ambiguity licenses you to say that a text means what you want, rather than requiring you to go to even greater lengths to unearth evidence, you're going to have an incentive to see ambiguity everywhere. So many meanings are now "in dispute" in only a tautological sense, because somebody has decided to stubbornly reject plain meaning, and "dispute" it.

The capacity of language to communicate meaning is contingent on the person on the receiving end of the communication being willing to accept the meaning communicated. Too often people find communications ambiguous only because they lack that willingness.