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A Response to Professor Ramsey
David Schwartz

[Ed.: For this guest post we welcome David Schwartz, the Foley & Lardner Bascom Professor of Law at the University of Wisconsin Law School.]

I’m grateful for Michael Ramsey’s well-argued comment on my Legal History Blog post, and for the opportunity to reply. Professor Ramsey and I agree that context can make semantic meaning clear even when some text is ambiguous in isolation. For the sake of argument, I will concede that some historical contextual enrichments can reasonably be considered within the realm of semantic meaning (e.g., that “charter of government” might refer in the U.S. context to the Articles or the Constitution). And I think Professor Ramsey is right to say that some purported disputes over meaning can be resolved on semantic criteria, when a disputant takes a position that is implausible in light of “contextually enriched” meaning. To be clear, my point is limited to semantically plausible disputes.

But I think there may be more to my examples than Professor Ramsey credits. If I referred to the “original charter of government” in a 1,000-word blog post or a law review article, there would undoubtedly be sufficient context to make the meaning clear. But suppose I spoke more delphically, and limited my utterance to the single sentence, “the original charter of government of the United States was deeply flawed.” There would be insufficient context to determine whether I meant the Articles or the Constitution. Ramsey asserts that “original charter of government” necessarily means the Articles of Confederation. But consider the opening section of Gibbons v. Ogden, which describes the transition from the Confederation to the Constitution in these terms: “when these allied sovereigns converted their league into a government…” I thus rely on no less an authority than John Marshall in saying that “original charter of government” could well refer to the Constitution, because many nationalists at the time plausibly believed that the Articles of Confederation system did not merit the term “government.”

Many provisions in the Constitution are more Delphic than thickly contextualized. This brings me to my second example. Professor Ramsey’s reading of “provide” in the General Welfare Clause is undoubtedly the prevailing one, and is perhaps even the most natural reading. But not all “correct” constitutional interpretations are the most linguistically natural ones. I think the contextual enrichments he implicitly relies on to determine the meaning of “provide” are political rather than semantic ones: e.g., the desirability of a government of limited enumerated powers. He points primarily to the idea of a limiting enumeration, which itself relies on what I think are non-semantic contextual enrichments.

Professor Ramsey argues that reading “provide” to mean ”legislate” in the General Welfare Clause is semantically implausible because it would reduce the rest of the enumeration to surplusage. This Madisonian argument is not a semantic one, and it is unpersuasive. It implies that a general term necessarily makes a following specific itemization redundant or meaningless. But if this were right, it would eliminate the ejusdem generis canon, in which specific itemizations that follow a general term are understood to explain the contours of the general term. “Provide” could mean “legislate” to a drafter (or reader) who believes it important to specify that “whatever else ‘general welfare’ means, it certainly includes commerce regulation, bankruptcy laws, etc.”