Prof. Somin misses my point when he says that the Constitution is for ordinary people and is meant to be understood by ordinary people. I agree with that completely, of course. But how do they understand it? By engaging in what Daniel Webster called “refining, defining, and splitting hairs”—that is, by engaging in the practice of law. So my point isn’t that the elite reading of a document should govern. It’s that the ordinary language should, and always does govern, because all the “elites” are doing is the same thing that “ordinary” people are doing, if the latter just thought about it.
Consider: Prof. Somin writes that “Legal experts today know more...than ordinary people today about how the ordinary people of 1788 or 1868 understood the meaning of parts of the Constitution enacted at that time.”
So, then, which should govern our constitutional interpretation of, say, “privileges or immunities of citizens of the United States”? Today’s ordinary people have, I think it’s safe to say, hardly a clue what these terms mean. They do not know that “privileges and immunities” is a legal term of art that appeared in the Articles of Confederation, and has roots as far back as Magna Carta. They would probably think of “privileges” and “immunities” as two different things; and indeed, “privileges” in ordinary parlance today means discretionary benefits, not rights, which is what the term means in its specialized, “elite” usage. So which should govern?
Prof. Tom W. Bell has argued that the meaning ascribed by today's ordinary person should govern, not either the specialized legal understanding or the general understanding in 1868. We’ll put that aside for now. Prof. Somin argues that the contemporary popular understanding should not govern. Instead, he argues that the meaning ascribed by today’s elites to ordinary people in the past should govern. But this is not “populism”; it’s elitism! Popular folks today don’t know or care what ordinary people back then thought these words meant, and they can only find out by engaging in “elite” methods. As Prof. Somin acknowledges, it’s today’s legal experts who know (or claim to know) what the 1868 ordinary folk meant by that term. But today’s legal experts are the elite. So by employing that interpretation, a judge would be applying an elitist understanding, not a “popular” understanding. Yet at the same time, he can rightly claim that he’s actually employing a popular understanding, because it has its roots in what ordinary people thought, and because ordinary people today, trying to interpret a document from the past, will look at what the people in the past thought.
The point is, any specialized interpretive model that lawyers adopt and stick to, as long as they stick to it, becomes by virtue of that very fact, an “elite” understanding, because it is a methodology that they, the elite, employ as a technical device to interpret the language. But that is what any language-user does. Which means that it is also an “ordinary” understanding. Is a person who uses a dictionary following ordinary usage? Or is he, by relying on a dictionary prepared by language experts, in order to use a specific, precise term, employing an “elite” understanding?
Consider: if an ordinary person wanted to know what the “Privileges or Immunities” Clause meant, what would he do? He would get down the history and law books and look up how people in 1868 understood “privileges or immunities,” wouldn’t he? But he would then be doing the same thing that the “elite” lawyers do. On the other hand, if he just used the terms without such a reference, he would not be employing some special “popular” understanding of the language; he’d be employing no particular understanding at all, and he would likely admit as much to a neighbor who challenged him that he was trying to interpret the phrase without making the proper inquiries. On the other hand, if he went out and looked the phrase up in dictionaries, or took polls to find out what people thought the words mean...he would again find himself in the elite, since people don’t typically do this when speaking.
Law, like poetry, is “heightened speech.” It is the use of words in a special, careful, techincal sense. Everyone does this, including ordinary people. Heck, children do it: if you tell a child not to eat his dessert early, and he eats a cookie, you can pretty much bet he’ll start debating with you about whether a cookie is a “dessert” or just a “snack.” That gradually evolves into whether a houseboat is a “vessel,” or what is chicken? Law just is the use of language, and there is no qualitative distinction between “elite” and “popular” understandings of language; there’s a spectrum of understanding based on our background, our research, the likely consequences of different interpretations, and various other factors. And that is just what “ordinary” language users do all the time.
Of course, the “elites” may adopt a wrong interpretation of a term, and stick to it, but in those cases, the “elite” understanding is not wrong qua “elite,” but qua understanding. The problem there is that the cases are wrongly decided, not that the popular/elite distinction has in some way broken down. A parent might indeed wrongly decide that a cookie is a dessert, but not because he’s an adult; it’s just wrong (if it is wrong) because a cookie not a dessert.
Because there is no qualitative difference between “popular” and “elite,” but the two float back and forth and interact with each other, with “popular” langauge-users employing “elite” methods, and the “elite” trying to understand what “popular” language-users meant when they spoke, the purported distinction between the two is not a useful device for legal interpretation, and is a basically hypothetical and unnecessary dispute.
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