Dum Pendebat Filius

Jesse Taylor at Pandagon has made a very good point about “strict interpretation of the Constitution,” and it’s not a political point but a linguistic one.

If the “original intent” movement demands a “plain English” requirement of constitutional interpretation based on today’s English, which Sowell seems to be contending in his rejection of the movement as an effort to “get in the heads of the founders”, then isn’t “original intent” an explicit embrace of the idea of a living Constitution?

… The meaning. What the words meant when they were written. If you’re going to talk about original intent, it can’t be both what the words meant then and what the words mean now - the originalist movement should really get a move on determining what they stand for before they demand that judges act on an incoherent and unworkable philosophy.

(For some context on these remarks, you can consult the op-ed columns to which Taylor is responding: one by Thomas Sowell and one by Ben Shapiro.)

The English language has changed since the Constitution was written, as has every other language spoken on the planet. It’s very important that we not forget this, or that we become aware of it if we didn’t know it already.

Read this editor’s note from my paperback copy of the Federalist Papers:

“Your argument is obnoxious, but it will be liquidated once its specious character is discovered.” That sentence would not be considered friendly if spoken today. But its terms were not hostile in the eighteenth century. We need to translate: “Your argument, though exposed to malice, will become clear when its attractive distinction is revealed.” Minor misunderstandings can, cumulatively, become major if we forget the many small differences in usage between Publius’ time and our own.

You and I look at a sentence such as “Your argument is obnoxious, but it will be liquidated once its specious character is discovered,” and think we know exactly what it means. If we have no background in 18th-century English, we’re completely wrong, without even knowing it. (This is a major problem we have with Shakespeare, too, by the way.)

Are we going to make sure that judges have training in 18th-century English before we set them to the task of divining the Constitutional framers’ original intent through a strict interpretation of the language they used? Sowell wants people to vote “on the plain meaning of obvious words.” Obnoxious, liquidate, and specious look pretty obvious to you and me, don’t they? This can be deceptive.