The Constitution and the Language of the Law (original) (raw)

A long-standing debate exists over whether the Constitution is written in ordinary or legal language. Yet no article has offered a framework for determining the nature of the Constitution's language, let alone systematically canvassed the evidence. This Article fills the gap. First, it shows that a distinctive legal language exists. This language in the Constitution includes terms, like "Letters of Marque and Reprisal," that are unambiguously technical, and terms, like "good behavior," that are ambiguous in that they have both an ordinary and legal meaning but are better interpreted according to the latter. It also includes legal interpretive rules such as those that tell readers whether a term should be given its legal meaning or its ordinary meaning. The Article explains how to determine whether a document is written in the language of the law. Unsurprisingly, the most important factor is the language of the document itself. The pervasive presence of technical legal terms provides strong evidence that a document is written in the language of the law because ordinary language cannot easily account for even a small number of legal terms. The purpose of the document also counts. Insofar as it is written to inform officials of their duties, a document is more likely to be written in legal language because that language allows more precision. The language of similar documents provides additional evidence. That other constitutions at the time were written in the