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31 posts from January 2022


There Is Something That Our Constitution Just Is
Chris Green

I have posted my contribution with Evan Bernick to the upcoming Originalism Works-In-Progress Conference, There Is Something That Our Constitution Just Is (44 pages), to SSRN. Here is our abstract:

Historian Jonathan Gienapp has launched a collection of widely celebrated attacks on originalism. He charges originalists with culpable neglect of the legal and political context in which the Constitution was framed and claims that the idea of a written Constitution was not prevalent in 1787 or 1788. Indeed, he goes so far as to call it a “myth.”

This Essay critiques Gienapp’s arguments, contending that he is perpetuating myths of his own. It is not true that originalists haven’t seriously investigated what sort of thing the Constitution is. It is not true that there was widespread, fundamental disagreement during the Founding era concerning just what the Constitution was. Finally, it is not true that the idea of a written Constitution emerged only after ratification.

Gienapp does raise important questions about how constitutional theory should address morality, present-day customs, and history. We begin to answer them by investigating officeholders’ promises to obey “this Constitution,” and then propose a research program dedicated to determining what people today think that that the Constitution is and how it binds public officials. We hope that this program will yield insight into contemporary understandings of constitutional obligation, which Gienapp neglects almost entirely.

Comments welcome!

Seth Barrett Tillman & Josh Blackman: Offices and Officers of the Constitution, Part II
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth) & Josh Blackman (South Texas College of Law Houston) have posted Offices and Officers of the Constitution, Part II: The Four Approaches (South Texas Law Review, Vol. 61, No. 321, 2021) (109 pages) on SSRN.  Here is the abstract:

This Article is the second installment of a planned ten-part series that provides the first comprehensive examination of the offices and officers of the Constitution. The first installment introduced the series. In this second installment, we will identify four approaches to understand the Constitution’s divergent “office”- and “officer”-language.

First, under Approach #1, the Intermediate View, the Constitution’s references to “offices” and “officers” extend exclusively to positions in the Judicial Branch and in the Executive Branch—whether appointed or elected. But the Constitution’s references to “offices” and “officers” do not extend to positions in the Legislative Branch—whether appointed or elected.

Second, under Approach #2, the Maximalist View, the Constitution’s divergent “office”- and “officer”-language is used synonymously. And, under this approach, these phrases refer to positions in all three branches, whether appointed or elected.

Third, under Approach #3, the Minimalist View, the Constitution’s divergent “office”- and “officer”-language has different meanings. The phrase “Officers of the United States” extends exclusively to appointed positions in the Executive and Judicial Branches. And the phrase “Office . . . under the United States” extends exclusively to appointed positions in all three branches. (The ellipses refer to different words the Framers placed after office but before under: “profit,” “trust,” and/or “honor”). For more than a decade, Tillman has advanced Approach #3. Blackman was first piqued by Tillman’s position shortly after he became a law professor, and he was thereafter persuaded.

Finally, we consider Approach #4, which we refer to as the Clause-Bound View. Under this approach, the “office”- and “officer”-language in each provision of the Constitution should be interpreted in isolation, without regard to how the same or similar language is used elsewhere in the Constitution. For example, the phrase “Officers of the United States” in one clause may have a different meaning than the phrase “Officers of the United States” in another clause.

This Article—at more than 30,000 words in length—is incomplete. Here, we simply introduce our taxonomy. If all goes to plan, the planned ten-part series will be completed circa Spring 2023. At that point, our project will be substantially complete. And, we hope, any remaining significant lingering questions will have been answered.

Part I of the series is here.


Riley Keenan: Living Equity
Michael Ramsey

Riley Keenan (Cornell Law School) has posted Living Equity (39 pages) on SSRN.  Here is the abstract:

Federal courts have long assumed a flexible and dynamic power to afford equitable remedies. Recently, however, the Supreme Court has turned to historical equity practice—in some cases, the practice of England’s chancellor in 1789—to fix the scope of the federal equity power. This “equitable originalism” poses a grave threat, particularly in cases like Whole Women’s Health v. Jackson, where the Court concluded that it largely lacked the equitable powers needed to prevent a Texas abortion statute from infringing women’s constitutional rights.

This Article challenges the current Supreme Court’s historical approach. Instead of looking exclusively to history, courts should treat federal equity as a living, evolving body of doctrine whose roots ultimately trace to medieval England but whose content has been steadily refined and expanded in the United States through common law reasoning. This approach better reflects not only the founding-era statutes and cases that created and defined the federal equity power, but it also better reflects the Supreme Court’s later practice, English equity practice, and equity’s broader function in the Anglo–American legal system. Finally, it brings structure to ongoing debates over controversial equitable practices—like universal injunctions and extensions of Ex parte Young—by explaining how, why, and to what extent history matters when courts do equity today.


Congress Must Resubmit the Proposed Equal Rights Amendment to the States
Andrew Hyman

President Biden is urging Congress to recognize ratification of the Equal Rights Amendment (ERA).  This is strange for several reasons, not least of which is that leading scholars such as the late Justice Ruth Bader Ginsburg (a steadfast supporter of the ERA) have acknowledged that the ERA would have to “be put back in the political hopper and we’ll be starting over again collecting the necessary states to ratify it.

To Justice Ginsburg, I can add my co-bloggers Mike Rappaport and Michael Ramsey, who basically agree with Ginsburg.  Plus, the Office of Legal Counsel in the Department of Justice reached similar conclusions in a long and scholarly memo on this whole subject in 2020.

Congress initially submitted the ERA to the states in 1972 with a seven-year window to ratify it.  Before the window closed, Congress in 1978 purported to extend the deadline until June 30, 1982 and President Carter signed it, given that this extension failed to garner a two-thirds majority in either house of Congress.  There has been much controversy about whether Congress really had power to do that in 1978, but for purposes of this blog post let’s suppose Congress did have such power.  The fact remains that the extended deadline expired on June 30, 1982 without the required ratifications, and Congress clearly intended for that to be the end of it.  Here is the text of House Joint Resolution 638 (emphasis added):

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That notwithstanding any provision of House Joint Resolution 208 of the Ninety-second Congress, second session, to the contrary, the article of amendment proposed to the States in such joint resolution shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States not later than June 30, 1982.

So this boils down to a matter of statutory interpretation: “not later than June 30, 1982” originally meant “no later than June 30, 1982.”  On that date, the ERA proposal that was submitted to the states in 1972 became inoperative.  

Congress was not writing on a blank slate in 1978, as the Supreme Court had already written quite a bit on this subject.  For example, in the 1939 case of Coleman v. Miller, the Court reaffirmed its previous holding that Congress had power to decide that a proposal to amend the Constitution “should be inoperative unless ratified within seven years.” In Coleman, there was a serious question “whether the proposal by the Congress of the Amendment had lost its vitality through lapse of time….”  The Court’s answer was that, “Congress has the power under Article V to fix a reasonable limit of time for ratification….”  This was the original context in which Congress set an extended deadline for the ERA in 1978.

Assuming Congress has the same power under the Necessary and Proper Clause to sunset a proposed amendment as it has under Article V (which is doubtful), Congress exercised this power in 1978 when it said the ERA had to be ratified no later than June 30, 1982.  On that date in 1982, the proposal lost its vitality through lapse of time and became inoperative, per the will of Congress, and Congress cannot now change that history by denying it ever happened.  An inoperative proposal is not a proposal at all, and that describes the ERA situation after 1982.  The contrary notion is so strange that I would not be surprised if the courts weigh in on it.

P.S.  For those of you readers who think somehow the principle is applicable that Congress cannot tie the hands of future Congresses, are you willing to also say that a state legislature who ratified the ERA cannot tie the hands of a future legislature who want to rescind that state's ratification?


Lawrence Solum: The Public Meaning Thesis
Michael Ramsey

Lawrence B. Solum (University of Virginia School of Law) has posted The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning (101 Boston University Law Review 1953 (2021)) (96 pages) on SSRN.  Here is the abstract:

Public Meaning Originalism is the predominant form of constitutional originalism. What makes Public Meaning Originalism distinctive is the Public Meaning Thesis—the claim that the best understanding of constitutional meaning focuses on the meaning communicated by the constitutional text to the public at the time each constitutional provision was framed and ratified. This Article provides a precise formulation of the Public Meaning Thesis, supplies reasons for affirming the thesis, and answers objections. The constitutional record strongly supports the claim that the constitutional text was intended to communicate to the public. The Constitution begins with “We the People” and the ratification process included intense popular participation. Jurists and scholars emphasized the public nature of the Constitution.

The communication of public meaning is made possible by two features of constitutional communication. The first of these features is a shared language: the drafters of the constitutional text could rely on the fact that American English was spoken by most Americans and was accessible via translation to those who spoke German and Dutch. The second feature is a shared public context of constitutional communication: the drafters could rely on widely shared understandings of the circumstances in which the Constitution was framed and ratified. These features enable the creation of public meaning. Common objections to the Public Meaning Thesis, including the “summing problem,” are based on mistaken assumptions about the way linguistic communication works. In sum, the central claim of the Article is that Public Meaning Originalism provides the best understanding of original meaning and hence the most attractive form of originalist constitutional theory.

As Professor Solum would say, "Highly recommended!  Download it while it's hot!"


Lincoln on Acts of War
David Weisberg

I want to comment on Prof. Ramsey’s recent post discussing whether Pres. Biden may, consistent with the Constitution, deploy troops to Ukraine.  He correctly observes that, as commander in chief, the president may deploy U.S. troops, and that “a deployment may provoke a war … But deployment itself does not create a state of war … The deployment itself would create a state of war only if it violates Russian sovereignty, and Russian sovereignty obviously does not extend to whether Ukraine hosts a U.S. deployment.”  I agree with all this. 
But Prof. Ramsey then goes on:

The issue dates at least to 1846, when President Polk deployed troops to the north bank of the Rio Grande River, provoking an attack by Mexico that started the Mexican War.  Some contemporaries (including Abraham Lincoln, then a congressman) thought Polk violated the Constitution.  But (contra Lincoln) the Constitution doesn’t say the President cannot act provocatively.  Many things a President might do, in the conduct of diplomacy, for example, might provoke a war.  A no-provocation rule would be impossible to implement and impose too great a restriction on presidential foreign policy. 

This is not a correct account of Lincoln’s objection to the Mexican-American War.  Lincoln never argued that the War was unnecessary and unconstitutional because the U.S. had acted provocatively in deploying forces along the border with Mexico.  Rather, Lincoln contended that the U.S. had deployed its forces onto Mexican soil—had invaded Mexico—and thus had itself committed an act of war against Mexico.  Lincoln’s view was that the War was unconstitutional because the U.S. was the unjustified aggressor, and Congress’s declaration of war was therefore grounded on a falsehood, namely, that first blood had been shed on U.S. soil.

In his definitive speech in the House of Representatives on Jan. 12, 1848, Lincoln said this:

The President, in his first war message of May 1846, declares that the soil was ours on which hostilities were commenced by Mexico; and he repeats that declaration, almost in the same language, in each successive annual message, thus showing that he esteems that point, a highly essential one. In the importance of that point, I entirely agree with the President. To my judgment, it is the very point, upon which he should be justified, or condemned. In his message of Decr. 1846, it seems to have occurred to him, as is certainly true, that title—ownership—to soil, or any thing else, is not a simple fact; but is a conclusion following one or more simple facts; and that it was incumbent upon him, to present the facts, from which he concluded, the soil was ours, on which the first blood of the war was shed.

An examination of the entire speech reveals that Lincoln never argued that Pres. Polk acted improperly or unconstitutionally because he deployed troops on U.S. soil in a manner that provoked a Mexican attack.  Rather, he consistently argued that Polk acted improperly and unconstitutionally because he deployed troops onto Mexican soil, where first blood was shed. 

Invading a neighboring country is, of course, very different from provoking that neighbor to invade one’s own country.  What alarmed Lincoln was the former circumstance, not the latter.   

Alan Meese: Antitrust Regulation and the Federal-State Balance
Michael Ramsey

Alan J. Meese (William & Mary Law School) has posted Antitrust Regulation and the Federal-State Balance: Restoring the Original Design (American University Law Review, Vol. 70, No. 1, 2020) (92 pages) on SSRN.  Here is the abstract:

The U.S. Constitution divides authority over commerce between states and the national government. Passed in 1890, the Sherman Act (“the Act”) reflects this allocation of power, reaching only those harmful agreements that are “in restraint of... commerce among the several States.” This Article contends that the Supreme Court erred when it radically altered the balance between state and national power over trade restraints in 1948, abruptly abandoning decades of Sherman Act precedent that had recognized exclusive state authority over most intrastate restraints. This revised construction of the Act contravened the statute’s apparent meaning, unduly expanded the reach of federal antitrust regulation, and undermined the regime of competitive federalism that had governed most intrastate restraints for more than five decades.

Drawing from its Commerce Clause jurisprudence of dual federalism, the Court initially employed the direct/indirect standard to allocate regulatory authority over intrastate restraints. Effects were direct if a restraint exercised market power to injure out-of-state consumers. The Sherman Act exerted Congress’s exclusive authority over such restraints, because state regulation might produce self-interested results contrary to the anti-favoritism principle that animated Commerce Clause jurisprudence. States retained exclusive authority over agreements producing indirect impacts on interstate commerce, and a regime of competitive federalism generated the rules governing such restraints. Because states internalized the full impact of such restraints, interjurisdictional competition likely tended to produce optimal legal rules.

Echoing Wickard v. Filburn, the Court jettisoned the direct/indirect standard in 1948, holding that the Act reaches restraints producing a “substantial effect” — even if harmless and indirect — on interstate commerce. This vast expansion of the Act undermined the regime of competitive federalism that had governed most intrastate restraints. This change also enabled application of the statute to local, state-approved restraints, empowering antitrust courts to supervise state regulatory processes, further undermining competitive federalism.

The Court has offered three rationales for rejecting the direct/indirect standard. First, the Court has claimed that Congress meant to reach restraints beyond the authority implied by pre-1890 dual federalism jurisprudence. Second, the Court has contended that the Act properly expands whenever the commerce power expands in other contexts. Third, the Court has treated the substantial effects test as a translation of the Act justified by a changed national economy. The Court has invoked the Act’s legislative history to bolster the first two contentions.

None of these rationales survives scrutiny. First, the phrase “restraint of... commerce among the several States” was apparently a term of art drawn from pre-1890 Commerce Clause jurisprudence. That case law employed “restraint” of interstate commerce as a synonym for state “regulation” of commerce deemed invalid because it directly burdened interstate commerce. Given the prior construction canon, Congress’s invocation of “restraint of... commerce” suggests that the Act should condemn only those private agreements that “directly burden” interstate commerce. The Court read the Act exactly this way in the1890s, repeatedly holding that intrastate or interstate agreements only restrained interstate commerce if they imposed direct burdens by producing supracompetitive prices for interstate transactions. These near-contemporaneous readings, themselves probative of original meaning, avoided constitutional difficulties that would have resulted from application of the Act to restraints causing no interstate harm.

Second, assertions that Congress chose to exercise whatever power future Courts might grant are speculation. Congress has declined to exercise its entire commerce power when enacting three different post-1890 antitrust statutes. Moreover, engrafting the substantial effects test onto the Sherman Act contravened the federal-state balance canon by supplanting traditional state prerogatives over intrastate restraints threatening no interstate harm.

Third, the substantial effects test is not a faithful translation of the Sherman Act in light of new facts. No court or scholar has identified changed circumstances that justify such a translation. Neither integration of the national economy nor increased scale of enterprises suggests that intrastate restraints generally produce interstate harm or that states are incapable of regulating them.

The legislative history bolsters this textual analysis. Several Senators endorsed pre-1890 dual federalism jurisprudence. The Senate Judiciary Committee rewrote Sherman’s bill, employing the term “restraint of commerce” to narrow its reach. The House passed the Senate bill verbatim, after its Judiciary Committee also embraced dual federalism. No member of Congress suggested that the Act would expand if the Court subsequently enlarged the scope of the commerce power.

The conclusion that the Court erred in 1948 does not itself justify return to the pre-1948 allocation of authority over antitrust matters. While stare decisis is weaker in the antitrust context, mere legal error does not suffice to upset longstanding precedent. If, however, the Court attributes the 1948 revision and continued expansion of the Act to changed economic circumstances — such as increased integration of the national economy — stare decisis should yield to post-1948 developments in the theory of competitive federalism. These developments confirmed that states possess appropriate incentives to generate impartial rules with respect to restraints that produce no interstate harm.

Reviving the direct/indirect standard would reboot competitive federalism in antitrust. The resulting competition between state “laboratories of democracy” would generate various substantive and institutional solutions to antitrust problems, as states vie for producers and consumers by offering rival packages of antitrust doctrine and enforcement institutions. Restoring the pre-1948 regime would also radically shrink the category of state-approved restraints potentially subject to the Act. Cases involving such restraints that did reach the Court would look quite different from those that have informed the Court’s treatment of these restraints. Instead of state regulation of local billboards and the like, such cases would involve restraints imposing substantial harm on out-of-state consumers. This new framing could force the current Court, which has less faith in regulation than its predecessors, to reconsider its approach to state-approved restraints.


Lawrence Solum on Scott Soames on Originalism
Michael Ramsey

At Springer, Lawrence Solum: Deferentialism: Soames on legal interpretation (reviewing [favorably] chapter 12 of Scott Soames, The World Philosophy Made (Princeton University Press 2019)).  Here is the abstract: 

This essay explores themes raised by Scott Soames in Chapter Twelve of The World Philosophy Made. Soames’s key contribution is the articulation of a general theory of legal interpretation and more specific theory, Constitutional Deferentialism, that is a form of public meaning originalism. His development of the connections between the philosophy of language and legal interpretation have been especially important and influential.

And from the introduction:

In The World Philosophy Made, Scott Soames ranges across a wide variety of topics, including the contribution that philosophy has made to legal theory. In Chapter 12, ‘‘Laws, Constitutions, and the State,’’ Soames begins with the basics, including H.L.A. Hart’s account of the nature of law from The Concept of Law, but the heart of the chapter is his argument for a constrained role for both judges and the executive branch in the context of the United States Constitution. The lynchpin to that argument is Soames’s theory of legal interpretation. This essay focuses on that theory.

Soames begins with Article I of the United States Constitution, which states, ‘‘All legislative powers herein granted shall be vested in a Congress of the United States.’’ He then states his basic argument: ‘‘To take this seriously is to recognize that neither the courts, the executive, nor the regulatory agencies are authorized to make laws.’’ Soames moves directly from the text to the speech act theory. Constitutions and statutes involve stipulations. Thus, the vesting clause that Soames quotes stipulates that ‘‘legislative power’’ is ‘‘vested’’ in the United States Congress, a new institution created by the Constitution itself.

The question then becomes how we determine what content was stipulated. Soames reminds us that content of a constitutional or statutory provision may not be fully explicit. The text alone is likely to be ambiguous and it may also be incomplete, implying but not stating all of the content that it conveys.  So, interpretation require s both contextual disambiguation and pragmatic enrichment. Otherwise, the constitutional provision or text would have ‘‘indefinitely many meanings’’ or as Soames has put it in oral remarks, linguistic meaning alone is‘ ‘sparse.’’

Soames then provides a general statement of the process by which content is conveyed: When an ordinary speaker uses a sentence S to assert in a given context is, roughly, what an ordinarily reasonable and attentive hearer who knows the linguistic meaning of S, and is aware of all relevant intersubjectively available features of the context of utterance, would rationally take the speakers use of S to be intended to convey and commit the speaker to. (314)And in the context of legal interpretation:Applying this to legal interpretation, we look for what the lawmakers meant,and what an ordinarily reasonable and attentive person who understood the linguistic meanings of their words, the publicly available facts, the recent history in the lawmaking process, and the background of existing law into which the new provision is expected to fit, who take them to have meant. That is the content of the law.

With this general framework in place, Soames then articulates three principles of legal interpretation. His first principle is a reminder that the explicit legal content of the text of a statute or constitutional provision is only part of full content communicated by the statute. The second principle is more complex and has several moving parts, consisting of a general directive and specified exceptions. The general directive requires judges to reach the outcome (Soames says ‘‘verdict’’) determined by the content of the constitutional provisions or statute. The three exceptions cover cases of (a) un-determinacy (such as vagueness or what legal theorists call ‘‘open texture’’), (b) contradiction (where the content of the provision in light of surrounding law leads to inconsistent outcomes, and (c) unanticipated consequences that would frustrate the intended purpose of the law.

Soames’s third principle then provides the procedure to be followed in the three kinds of cases identified by the second principle. Here is his statement in full: 

In cases of [the three types identified by the second principle], the judicial authority is authorized to make new law by adopting a minimum change in the asserted or stipulated content of the law that maximizes the fulfillment of the lawmaker’s discernable intended purposes in making that assertion or stipulation.

The three principles together comprise a general account of legal interpretation. Soames elaborates these principles in the context of constitutional interpretation and construction by articulating a theory he calls ‘‘Constitutional Deferentialism.’’ I will return to that theory and its relationship to contemporary constitutional theory in the United States, but first, we need say something about the theoretical landscape of legal theory in the United States.

On my understanding, Soames’s theory is offered as both a positivist account of what the norms of legal interpretation and construction are, and as a normative account of what they ought to be. For the most part, my comments are directed to the normative dimension of Soames’s argument, but I will have a few comments  about the positivist dimension as well. 

(Via Legal Theory Blog.)


Can the President Constitutionally Deploy Troops to Ukraine?
Michael Ramsey

Does the President have independent constitutional power to deploy troops to Ukraine?  My originalist answer is yes.

First, as a general matter the President has constitutional power as commander-in-chief to deploy troops.  Of course, he needs money from Congress to pay for any deployments.  A President with a specific, tightly controlled military budget might as a practical matter be unable to make a deployment without asking Congress for additional funds.  But the modern military budget is not specific and tightly controlled.  I'm sure the current President has enough discretionary funds to pay for a deployment to Ukraine.

Apart from the need for funds, the constitutional limit on the President's power to deploy troops is the declare war clause.  As I've argued (in Textualism and War Powers), the original meaning of that clause is that Congress has exclusive power to put the nation in a state of war, whether by issuing a formal pronouncement or by directing an act of war. So the President cannot make a deployment that creates a state of war without Congress' approval.  But deploying troops to a friendly country (assuming that country gives permission) does not create a state of war -- obviously not with the friendly country, and also not with another country that may oppose or feel threatened by the deployment. 

It's true that a deployment may provoke a war.  In the present situation a deployment to Ukraine might provoke a war with Russia.  But the deployment itself does not create a state of war -- if war occurs, it will start with a Russian attack.  The  deployment itself would create a state of war only if it violates Russian sovereignty, and Russian sovereignty obviously dies not extend to whether Ukraine hosts a U.S. deployment.

This conclusion may seem to give the President too much power over war.  The issue dates at least to 1846, when President Polk deployed troops to the north bank of the Rio Grande River, provoking an attack by Mexico that started the Mexican War.  Some contemporaries (including Abraham Lincoln, then a congressman) thought Polk violated the Constitution.  But (contra Lincoln) the Constitution doesn't say the President cannot act provocatively.  Many things a President might do, in the conduct of diplomacy, for example, might provoke a war.  A no-provocation rule would be impossible to implement and impose too great a restriction on presidential foreign policy.  The Constitution only says the President cannot start a war.

That does not mean, though, that Congress is powerless to limit presidential provocations.  As to deployments specifically, as noted above the President can make them only if Congress has already approved enough discretionary funds for the military.  It's the modern military budget, as much as the Constitution, that empowers the President to deploy troops to Ukraine (and even in 1846, Polk apparently had enough discretionary funds to send the army to the Rio Grande).  If Congress doesn't like provocative deployments, it shouldn't hand the President unrestricted money.  Further, even if the President provokes a war, Congress can refuse to fund it (or can fund only defensive measures).  Polk didn't have enough discretionary funds to fight the Mexican War so he asked Congress to authorize further spending.  If Congress didn't like the war, or the way it started, it could have refused Polk's request; instead, Congress approved enough money for an invasion of northern Mexico, and when that proved inconclusive, it approved additional funds for an attack on Mexico City.  So Congress seemed to have little ground to complain about Polk's provocations.  And generally, the charge that presidential provocations undermine Congress' declare war power are unfounded: Congress has tools to limit provocations, if it want to use them.


Legal Theory Lexicon: Vagueness and Ambiguity
Michael Ramsey

From Larry Solum's Legal Theory Lexicon: Vagueness and Ambiguity.  From the introduction:

This week the Legal Theory Lexicon entry focuses on "ambiguity" and "vagueness"--two important concepts for the theory of interpretation.  Some legal texts are ambiguous--they contain words or phrases that can have two or more distinct meanings.  And some legal texts are vague--they use concepts that have indefinite application to particular cases.  And some legal texts are both vague and ambiguous--they have multiple meanings, some (or all) of which have indefinite applications.  Because "vagueness" and "ambiguity" are basic concepts in the theory of interpretation, its important to master each of them and to understand the difference between them.


What does it mean to say that a concept, term, or phrase is vague?  Let's start with some examples and then try for an elucidation of the concept.  "Tall" is a good example of a vague concept.  Some humans are definitely not tall--Danny DeVito, for example.  Others definitely are tall--Boban Marjanović, for one.  But the term "tall" is vague.  5'11 is almost definitely tall for a woman in the United Sates, but might be a borderline case for men.  "Tall" is not the sort of quality for which there are definite criteria that sort the world into "tall" things and "not tall" things.  In other words, "tall" is vague.


What about "ambiguity"?  A word or phrase is ambiguous if it has more than one meaning.  Take "cool" for example.  One meaning of "cool" has to do with temperature, and in this sense, "cool" contrasts with "warm," "cold," and "hot."  Another meaning of "cool" has to do with fashion and social attractiveness.  And there are other senses of "cool" as well, as in, he kept his cool in a very pressured situation.  So, the word "cool" is ambiguous because it has multiple senses, with each sense representing a different concept.

And from later on:

Now that we have a basic grasp of vagueness and ambiguity, we are in a position to see that each of these two concepts has a role to play in a theory of the interpretation of legal texts.

Many legal texts are vague.  In fact, most law students become very familiar with a variety of vague terms early in their law school careers.  Take "reasonable"--was the tort defendant's conduct "reasonable" under the circumstances?  There will be clear cases of unreasonable conduct: driving 150 mph in a residential area.  But there will also be borderline cases.  Was it reasonable to drive at 55 mph in a light fog?

Some legal language general, abstract, and vague.  For example, the phrase "equal protection" in the 14th amendment of the United States Constitution might refer to a very general and abstract idea of equality.  Given this generality and abstraction, it might be that the "borderline" cases seem to make up the whole of equal protection doctrine.  What would count as a clear example of "equal" or of "unequal"?  In a common law system, general and abstract language may be translated into relatively more particular and concrete rules through case-by-case adjudication.

Vagueness is ubiquitous in the law, and frequently legal actors (courts and others who apply the law) must resolve borderline cases.  Every law student is familiar with the strategies that are employed, which include case-by-case balancing tests, supplementary doctrines that provide bright-line rules to implement vague legal texts, and so forth.

Ambiguity may be less common, because many potentially ambiguous terms or phrases are disambiguated by context.  "Seizure" can refer to a physical taking or it can refer to a medical symptom, but in the Fourth Amendment of the United States Constitution, it is clear that the correct meaning is the former rather than the latter....