Federal Judiciary

175 Years Ago Today

By AndrewHyman

James Madison wrote on March 12, 1833:

It is but too common to read the expressions of a remote period thro' the modern meaning of them....The remark is equally applicable to the Constitution itself.

This was nothing new for Madison. Here's a similar quote from June 25, 1824:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense!

And one more, from March 10, 1826:

In the exposition of laws, and even of Constitutions, how many important errors, may be produced by mere innovations in the use of words and phrases if not controllable by a recurrence to the original, and authentic meaning attached to them.

Madison believed that ambiguities in the law would have to be worked out in practice (see Federalist 37), but that the original meaning should control to the extent that it is ascertainable. I recently discussed this in the comments at Michael Dorf's blog.

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Full post as published by ConfirmThem on March 12, 2008 (boomark / email).