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08/21/2014

Timothy Sandefur on Elitist and Populist Versions of Originalism
Michael Ramsey

At Freespace, Timothy Sandefur comments (critically) on Ilya Somin's post on elitism and populism: An example of "elitist versus populist originalism" (with an interesting account of the opinions in Wayne County v. Hathcock, the Michigan eminent domain case).  On the broader question, he observes:

But surely the populace is on notice that terms in the Constitution are very important, are pored over by lawyers and judges, and are interpreted in light of other precedents. They are therefore ultimately responsible for choosing words that avoid results they don't like, such as incorporating the Berman interpretation of "public use" into their state Constitution. If they fail to take such precautions, then the law presumes that they've done what they've done intentionally. If they later decide that was a mistake, then either (a) the precedent on "public use" was wrongly decided, and should be overruled for that reason, or (b) the people can use the tools at their disposal to alter the constitutional wording. But I see no way that this problem breaks down along epistemological grounds, or that it can be understood along the axis of elites versus populism. This problem is better understood as an ordinary problem of constitutional interpretation--does "public use" include economic development or not?--than as some deeper problem of interpretation, or at least, a problem of interpretation that turns on the question of elites versus the populace.

And trying to analyze it in terms of the latter, and to take a position on the side of such a vaguely defined concept as "populism," seems to invite the eradication of all law, essentially. What I mean by that is, law consists almost entirely of a very refined and specialized use of language. That refinement and specialization is within the grasp of the ordinary person, but most ordinary people don't bother trying it: they (rationally) leave that task to legal experts. If the experts do something wrong, then the people can use their retained power to fix the problem. But to say that there is some fundamental problem with the lawyer's technical use of language does not help. What, after all, are we to replace it with? Daily polls of what people think the terms mean? Then who will take the polls? And who will interpret these polls? And then aren't the interpreters doing just what judges already do: figuring out what people think the words mean?

Ilya Somin responds here, with a further response from Tim Sandefur here.

Without endorsing everything Tim Sandefur says, I think he and I are aligned on the basic proposition that law is (in part, anyway) a specialized use of language, and so it really doesn't make sense to interpret legal language in a way that does not recognize it as a specialized use of language.

John McGinnis and Michael Rappaport make a similar point in Originalism and the Good Constitution (p. 134):

The reader of a legal document knows that documents are often subject to legal methods that may affect their meaning.  While this is true of legal documents, it is not less true of other specialized documents.  For example, the reader of a postoperative report would recognize that the interpretive conventions  of the medical profession govern its meaning.  Similarly, the reader of the US Constitution would recognize that its meaning depends on interpretive rules that were generally deemed applicable to written constitutions of this type.