Content area
Full Text
In all living languages, the conventional usages of individual words change over time. For illustrations, one need only consult the Oxford English Dictionary, which arranges its definitions of each word so that they proceed from the earliest usages to those that were introduced more recently.1
This aspect of language change raises an obvious issue for the interpretation of our written constitutions. The federal Constitution, in particular, was "intended to endure for ages to come,"2 and it seems inevitable that some of the words it uses will acquire new connotations from one age to the next. So-called "originalists" have focused on this issue and have staked out a clear position: They believe in enforcing the Constitution's "original meaning" rather than whatever meaning the same words would have if adopted today. Originalists accordingly emphasize old dictionaries and other evidence of how the words in the Constitution were used at the time of the founding.3
What originalists think of as a law's "original meaning," though, does not depend solely upon the dictionary definitions of the individual words that the law uses. It also depends upon a variety of other linguistic conventions.4 Some of those conventions are part of the English language in general; to understand almost any document written in English, one needs to know not only the conventional usages of individual words, but also the grammatical rules that govern how words are combined and the interpretive principles that tell us which inferences are appropriate in which circumstances. Other conventions are more specialized; in construing legal documents, lawyers use various canons that laymen might not recognize. Conventions of both sorts form part of the background against which laws are drafted and understood, and they can greatly affect what a law is taken to say.
Like the conventional usages of individual words, these conventions too are mutable. Rules that legal draftsmen and interpreters alike once followed may fall out of fashion.5 Even the basic attitude that interpreters are expected to adopt-and upon which draftsmen may therefore rely-can vary over time. The "original meaning" of a law enacted when interpreters are expected to adhere strictly to the law's explicit text may differ markedly from the "original meaning" of the identical words enacted when interpreters are expected to infer exceptions...