One of the most important parts of Originalism and the Good Constitution is methodological rather than normative. In Chapter 7, the authors argue that original meaning depends not just on the original meaning of the words themselves but on the original methods of interpretation. As they say (p. 119),
word meanings and grammatical rules do not exhaust the historical material relevant to constitutional interpretation. There are also interpretive rules, defined as rules that provide guidance on how to interpret the language in a document. It is our position that originalism requires modern interpreters to follow the original interpretive rules used by the enactors of the Constitution as much as the original word meanings or grammar rules.
As an example, they point to the rule that text be construed where possible to avoid surplusage; we should only use that rule, they say, if it were used at the time the relevant language was adopted.
If the question is, what did the language mean at the time is was adopted, then this point seems absolutely right (and indeed I have some trouble understanding the argument against it). As McGinnis and Rappaport say, everyone (I think) agrees that, to find the meaning at the time of enactment, one would use the ordinary rules of grammar, as well as the word meanings themselves, existing at the time of enactment. Otherwise, one would run a serious risk of misreading the text, just as one would if one did not use the word meanings existing at the time of enactment. Meaning arises not just from the words themselves but from the way the words are put together. For example, one might misread an eighteenth-century text by putting too much emphasis on the placement of a comma, if the rules about comma placement were different (as they seem to have been) in the eighteenth century compared to today.
But what is true of grammar seems equally true of rules like the rule disfavoring surplusage, which is in a sense a rule of legal grammar. If there was a drafting rule “avoid surplusage” at time x, then there is a good reason to read things written at time x in a way that does not create surplusage. But if there wasn’t such a rule, and indeed if perhaps people at time x liked surplusage because it ensured clarity, there isn’t much (any?) justification for reading things written at time x in a way that avoid surplusage. At least, I can’t think of one.
This point (which seems obvious once it’s made, but wasn’t before) can fix one troubling aspect of Scalia and Garner’s great book Reading Law: The Interpretation of Legal Texts.
In large part Reading Law sets forth, explains and justifies a catalogue of interpretive rules that (the authors say) should be used to understand legal texts. But where do these rules come from? Why should these, and not others, be used? The authors do not explain, at least not directly, although they hint that the rules arise from and are justified by traditional legal practices. As McGinnis and Rappaport make clear, the explanation (to an originalist) should be that the interpretative rules were in place when the text was enacted and thus form part of its original meaning.
Of course this may mean that different interpretive rules should be applied to different texts if the texts were enacted at different times. (Scalia and Garner do not seem to contemplate this possibility). I also think that there is likely to be great difficulty in establishing whether a particular interpretive rule was widely accepted at a particular time (and how widely accepted would it need to be?). McGinnis and Rappaport rightly say that recognizing the original interpretive rules as a component of the original meaning may reduce ambiguity (because it supplies further tools for resolving ambiguity). But it also opens up a wide new field of disagreement and difficult historical inquiry.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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