Category Archives: Constitution

More on The Language of the Law

Over at Volokh Conspiracy, Will Baude has commented on my post about the language of the law. Will and his co-author Steve Sachs recently had a paper titled “The Law of Interpretation” published as a lead article in the Harvard Law Review. They have a view of the rules of legal interpretation that differs from McGinnis and Rappaport’s and is fairly similar to mine:

In that piece, we argue that some interpretive rules are linguistic ones, elements of our written language, but others, maybe many, are legal ones. Rather than assimilating them to rules of language, we analogize them to other legal defaults, many of which are unwritten, such as the rules for mens rea or accomplice liability in criminal statutes. Seeing such rules as law, not language, avoids critiques like Goldfarb’s that legal rules don’t operate in the way that he says that languages generally operate.

However, Baude sees his (and Sachs’s) conception of legal rules as differing somewhat from my description of legal interpretation as process of explicit reasoning:

I take [Goldfarb’s] point about how introspection might differ for language and for law, but we are not committed to the view that all legal interpretive rules entail a “deliberative process by which the interpreter consciously thinks about how the utter­ance or text should be understood.” Trained lawyers may well use the mens rea canon without really thinking about it. And we affirmatively disagree with the suggestion legal interpretive rules must be “promulgated explicitly by actors vested with institutional authority.” We think such rules can, and often do, exist as part of the general common law backdrops of our legal system — authoritative rules of custom that have never been explicitly promulgated by any lawmaker in particular.

I’ll deal with these points in reverse order.

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“The language of the law” is not actually a language

THE NATURE OF LEGAL LANGUAGE has been a recurring subject of discussion, within applied linguistics and (U.S.) legal academia. The latest contribution to that discussion is a recently-posted draft paper by John McGinnis and Michael Rappaport, titled The Constitution and the Language of the Law. (h/t Legal Theory Blog)

McGinnis and Rappaport are the primary advocates of an approach to constitutional interpretation known as original-methods originalism, under which courts today are to apply the interpretive methods that prevailed at the time of the framing (pdf). Their new paper argues that original-methods originalism is supported by the fact that (as they see it), the Constitution is written in “the language of the law.”

Although Larry Solum, of Legal Theory Blog, calls the paper “important and brilliant,” I’m afraid that I find its primary argument to be pretty seriously flawed. [UPDATE: McGinnis and Rappaport have responded to this post, and I have replied to their response.]

I’m going to talk here about two related aspects of the paper that I think are problematic. One is its treatment of “the language of the law” (a phrase that I will henceforth capitalize whenever I use it in the way that McGinnis and Rappaport do). McGinnis and Rappaport come close to treating The Language of the Law as a full-blown language on the order of French and Japanese, which I don’t think is justified by the facts. The other major problem that I see lies in the analogy that the paper draws between the rules of legal interpretation and what it calls the “interpretive rules” of ordinary language (which are better described as the cognitive processes involved in the comprehension of utterances and texts). This analogy, which plays a key role in McGinnis and Rappaport’s argument, is invalid because each of the things that they are analogizing is fundamentally dissimilar from the other.

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The Recess Appointments Clause (Part 1)

The D.C. Circuit’s recent decision regarding the Recess Appointments Clause (Noel Canning v. National Labor Relations Board) bills itself as an exercise in Heller-style textualism: “When interpreting a constitutional provision, we must look at the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008).” As a result, much of the decision is devoted linguistic issues.

I’m going to take a look at how the court handled some of those issues—at the conclusion it reached and the reasoning it used to get there.

The verdict: the Recess Appointments Clause is a lot less clear than the D.C. Circuit makes it out to be, and the court’s reasoning isn’t very good.

The issue

Ordinarily, the president’s power to appoint high-level officials is subject to the requirement that his choices be confirmed by the Senate. But because the Senate isn’t always open for business, the Constitution provides that the president “shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” One of the questions raised by this provision is what exactly is meant by the phrase the Recess of the Senate. That’s the issue I will discuss in this post.

To put the question into context, here’s some quick background. Every two years, when the most recently-elected members of the House of Representatives start their terms, a new term of Congress begins. Each new term is referred to as a separate Congress; the current Congress is the 113th. Since the Constitution requires Congress to meet at least once a year, each two-year Congress is divided into at least two officially-designated sessions. Currently, the 113th Congress is in its first session.

In between its formally-designated sessions, Congress is in recess. Everyone agrees that these breaks count as “recesses” for purposes of the Recess Appointments Clause. Congress also takes breaks periodically during each officially-designated session. During those breaks, Congress is simultaneously in session and not in session. It is in session because the officially-designated session is still in progress, but it is out of session because it has temporarily stopped conducting business.

The question is whether these breaks within an officially-designated session constitute “recesses” such that the president can exercise his recess-appointment power. According to the D.C. Circuit, the answer is no.

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