Prof. Bell has a blog post objecting to both originalism and living constitutionalism because both interpretive theories lead to what he considers an objectionable outcome: the same word being used to mean different things within the document. This outcome, he contends, “threatens the rule of law” because “an average citizen, using ordinary English, would not likely read ‘Property’ to stand for something different each time the word appears in the Constitution.” But I just don’t get it.
First, I don’t think this is a very common problem. The Constitution typically uses language very precisely and carefully. Bell gives the example that “On some accounts, for instance, the word means only land in Article IV, § 3, general common law property in the Takings Clause, and all that plus welfare entitlements in the Fourteenth Amendment’s Due Process Clause.” Without having read the commentators Bell’s referring to, I think he exaggerates the degree to which the term varies. In fact, the Article IV clause does not, so far as I know, only refer to land; and I certainly reject the idea that the property referred to in the Fourteenth Amendment includes welfare. That is, in fact, a controversial interpretation. It seems more sensible to cast our skepticism on those arguments, than on the Constitution that is the victim of such arguments. One would hardly blame Shakespeare for the many silly or strained interpretation of Hamlet that have come along in the centuries.
That being said, I think it’s true that constitutional provisions can mean different things depending on different historical experiences. There’s an argument that the Due Process Clause of the Fourteenth Amendment incorporates a substantive due process theory, while the Fifth Amendment does not. I disagree with this argument, but it’s a reasonable one: the historical experience of the generation that passed the Fourteenth Amendment was different from that of the founding generation. It’s part of what makes up the artificial reason of the law; the artificial person of the United States. It would do violence to the Constitution to try to strain out that experience and ignore those differences in the name of an artificial, rationalistic uniformity. Nor is such sterilized linguistic clarity even possible. One cannot purge language of its connotative thickness—and it is not clear to me whether the gains of an attempt to do so exceed the potential losses.
Second, I don’t see what’s wrong with the same word meaning different things in different places. This is a common feature in regular speech, with which ordinary citizens are familiar. The phrase “set the tea set on the TV set” uses the word “set” to mean three different things, yet any normal speaker of English understands it perfectly well, and in fact it would lead to greater confusion to require some other reading or to adopt some different interpretive rule in order to somehow force this phrase into a Procrustean “word must mean same thing each time” rule.
Nor do I see how the rule of law is threatened by this ordinary linguistic phenomenon. Bell argues that average people would not expect this to be the rule, but even if that’s true, it doesn’t undermine the rule of law. The rule of law is threatened by arbitrariness, and arbitrariness can certainly result from vagueness, but different meanings for the word “Property” or other words isn’t vagueness—at least, it’s no more vague than is common in all language. People needing context or explanation can easily get it. It doesn’t rise to the level of vagueness reached by, say, the “honest services fraud” statute, where nobody knows what it means, and no legal expert can explain it to you.
Finally, I don’t see how this is an argument against originalism—if it’s an argument at all, it’s an argument against ordinary language. As my “set” example shows, language often uses similar words to refer to different things, and people figure out what they mean by reference to the context. There’s nothing qualitatively different about using contextual references in ordinary conversation, and referring to case law and history when interpreting a constitutional provision. That’s just how language works. If one takes a “presentist” view—that words should be taken to refer to their plain, present meaning, that will still require reference to contextual clues. And there is at least as much, if not more, potential for confusion in this than there is in using a given set of contextual norms—the U.S. Reports, the Congressional Record, or whatever—as standard reference works for seeking such context. Originalism, whatever its flaws, at least has a canon of standard tools; a more “presentist” approach seems to lack even this stabilizing and clarifying influence.
(Cross-posted at Freespace.)