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Law, History, and the Meanings of Words

Before I begin, I would like to say what a great honor it is to have the opportunity to comment on Mr. Sandefur’s thought-provoking arguments and to be included in such a distinguished group of commentators. I would also like to thank Mr. Sandefur for his most recent response, which I hope will provide an opportunity to clarify our differences regarding how we view the due process concept and our underlying methodological approaches.

As an initial matter, I must confess to being a bit uncertain regarding what precisely Mr. Sandefur has in mind when he says that he is “interested in what the Constitution’s language means” rather than “in what any particular people at any particular time thought it meant.” To the extent this statement is meant to convey merely that meaning is not necessarily reducible to the subjective intentions or understandings of a particular, identifiable speaker or group of speakers, I don’t necessarily disagree. But to the extent Mr. Sandefur means to suggest that there is some objective “meaning” of constitutional language that can be wholly divorced from subjective understandings of some group of speakers and listeners, then I think the view is fundamentally mistaken. Human language has meaning only in context and that context must have reference to the way in which some historically situated interpretive community uses and understands the particular language at issue.

To take an example suggested by Professor Lawrence Solum, the word “deer” in Middle English was used to refer generically to all animals of any kind rather than as a reference to the particular animal contemporary English speakers use the word “deer” to identify. Thus, in order to know what was being referred to in a very old English document that uses the term “deer,” it will be important to know when that document was created. I therefore think that some resort to history will often be unavoidable, if only for purposes of identifying the interpretive community we care about and determining how members of that community generally used and understood the language in question.

To the extent Mr. Sandefur is claiming that there was a widely shared public understanding among Americans in 1791 that understood either “due process of law” or “law of the land” to encompass an abstract protection against all forms of arbitrary government decisionmaking, I believe the evidence for such a proposition is lacking for the reasons explained in my original response. In short, the English understanding of the “law of the land” concept that Americans of the Founding generation inherited viewed this provision solely as a restriction on the executive and the courts, not the legislature. Though it was certainly possible to formulate readings of the “law of the land” concept that would allow it to be extended to legislatures (as subsequent experience demonstrated), such readings were relatively rare until the middle decades of the nineteenth century.

Mr. Sandefur is certainly correct that the incipient nature of American judicial systems and case reporting in the late eighteenth and early nineteenth centuries limit the information we have about how members of the public actually understood “due process of law” and “law of the land.” And such limitations in the historical record must certainly be kept in mind in considering the degree of confidence with which we can make claims about historical understandings. But these limitations cut both ways and raise just as many problems for those claiming “due process of law” and “law of the land” were widely understood as substantive restraints on legislative power. Much turns, therefore, on which side bears the burden of proof in such arguments and the standard of proof to be applied to such claims. In my view, the late eighteenth-century English understandings of “due process of law” and “law of the land” provide a useful baseline for judging claims about how Americans of the Founding generation would most likely have understood those concepts. Those seeking to establish that members of the Founding generation shared an understanding that diverged significantly from the more traditional English understanding should thus bear the burden of proof in establishing that proposition. I do not believe that the existing evidence of American understandings in the late eighteenth and very early nineteenth centuries can support such a claim.

Finally, in response to Mr. Sandefur’s intriguing final question, I do not think it is particularly controversial that authors of legal texts can sometimes make mistakes regarding meaning. This is why the scrivener’s error doctrine exists. More generally, I think most modern originalists would agree that the enactors’ expectations about how a particular text will be applied in a given factual context are not necessarily determinative of that text’s meaning. In an important article, Professors Mark Greenberg and Harry Litman illustrated this point with a hypothetical statute requiring all persons with “contagious diseases” to be quarantined before entering the United States. As Greenberg and Litman observe, if at the time that provision was adopted the public mistakenly believed that a noncommunicable disease such as psoriasis was contagious, that mistaken belief would not necessarily control how subsequent interpreters should apply the statute after the true medical facts were discovered. This is so because the term “contagious” had an objective meaning that was independent of the erroneous expectation regarding how the statute would apply to a particular disease.

By contrast, Mr. Sandefur’s example of a statute taxing the importation of “fish,” as applied to dolphins, provides an excellent example of the importance of context and history in determining the actual original linguistic meaning (as opposed to expected application) of legal language. If the hypothetical statute Mr. Sandefur has in mind were adopted against a societal background where the basic principles of modern evolutionary taxonomy are widely accepted, then the application of the statute to dolphins would probably involve a linguistic mistake, even if members of the enacting public were confused about the phylogenetic relationship between fish and dolphins. By contrast, if at the time the statute was enacted, most individuals accepted a pre-modern taxonomic system that focused primarily on outward morphology rather than genetic relationships, then it would probably be correct to classify dolphins as “fish” in accordance with the widely shared notion of what the term “fish” referred to. In other words, we need to know whether a reasonable reader of the time would have understood the term “fish” as referring to some underlying genetic or evolutionary relationship among similar organisms or to the outwardly observable characteristics (e.g., fins, tail, living in the water) that animals referred to by the term generally exhibit. There is no innate quality of “fishness” to which we can refer to answer this question that is independent of how individuals in a particular time and place actually use and understand words.

Also from This Issue

Lead Essay

  • Why Substantive Due Process Makes Sense by Timothy Sandefur

    Timothy Sandefur argues that the phrase “due process of law” is a promise of regular, non-arbitrary treatment by the government. That promise certainly entails procedural elements, but we would be hard-pressed to justify any of them without reference to a deeper, implicit, and ultimately substantive guarantee. “Citizens are entitled to procedures only because they are entitled to lawful treatment,” Sandefur writes. Arbitrary, irrational, or merely self-serving government acts are not lawful acts, properly speaking, and they should be overturned on substantive grounds. The process of law that is due to citizens is more than just a ritual or a procedure; it also requires judges to ask whether the law serves public or merely private ends.

Response Essays

  • Not So Fast, Mr. Sandefur by Lawrence Rosenthal

    Professor Rosenthal sympathizes with the idea that the Constitution protects us against unjust majorities. But he holds that the Due Process clause does not act as Sandefur claims. “The First Amendment expressly limits the scope of legislative power,” he writes, “[but] the Due Process Clause does not.” Even were we to grant that laws must be in the service of a general, public principle, substantive due process wouldn’t necessarily yield the results we predict or desire. Instead, it would amount to an unreviewable judicial veto.

  • Substantive Due Process in Historical Context by Ryan Williams

    Ryan Williams argues that substantive due process is both an intelligible concept and also a part of American law. He argues, however, that it did not become a part of the federal Constitution until the ratification of the Fourteenth Amendment in 1868. Prior to that, public understandings of “due process of law” did not contain any reliable understanding of a check on the legislature, only on the executive and the courts. Substantive due process needs to be understood as a relatively recent historical development, though not by any means a bad one.

  • Would Half a Loaf by Any Other Name Throw Out the Baby? Why Sandefur is Both Right and Wrong about Substantive Due Process by Gary S. Lawson

    Gary S. Lawson agrees that the Constitution, even without the Fifth Amendment, seems to instantiate a rule against arbitrary conduct — for the federal government. The Fifth Amendment makes the matter more explicit. But does the Fourteenth Amendment do the same for the states? On this point, Lawson proposes several important doubts. Still, he argues, Sandefur has made a very strong case for a substantive element to due process.

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