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Saturday, February 08, 2020

"Thereof," legalese, and the readability of the U.S. Constitution

Should reasonable (non-lawyer) voters be able to read the U.S. Constitution and understand its meaning?

In United States v. Sprague (1931), the Court offered its approach to interpreting the Constitution: "The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical, meaning; where the intention is clear, there is no room for construction and no excuse for interpolation or addition" (my emphasis).

The Court's notice-to-voters proposition seems reasonable in light of theories of consent, even if sometimes aspirational and sometimes fictional, for example, language drafted ambiguously to achieve political compromise. Yet, notice is undermined when a document bristles with legalese and language that could fairly be read as embodying technical legal terms of art rather than ordinary natural language (e.g. "other high crimes and misdemeanors"). That drafting diminishes the ability of voters to access the text. If it is intended that voters, generation over generation, are still meant to understand the document, that difficulty is compounded.

Take the adverbial legalese "thereof." It is used over a dozen times in the Constitution and its amendments, but it can really muddle the meaning of a text. The First Amendment's religion clauses say that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." "Thereof" means "of the thing just mentioned; of that." But what is the "thing just mentioned" or the "that"? Like the word "herein," "thereof" can be treacherously ambiguous. Consider two possible readings:

1. If "religion" is the word referred to by "thereof," the reading could support an individualistic, religious right of conscience. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise [of religion]." Today, the Supreme Court interprets the clause this way.

2. But "thereof" might refer to "an establishment of religion," not just "religion." Thus, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise [of an establishment of religion.]" The free exercise clause would protect an institutional religion's prerogative, not an individual right of conscience.

"Thereof" and similar legalese introduce ambiguity into the constitutional text, opening the door to misunderstanding and competing interpretations. Like clear legal writers, future drafters should skip the legalese, at least if notice to voters actually remains an object in constitution drafting.

Posted by T. Samahon on February 8, 2020 at 08:00 AM in Constitutional thoughts | Permalink


By "voter" the supreme court probably didn't mean only illiterate, uneducated people who will vote for whoever offers the lowest taxes and largest welfare benefits, but a person who has gone through the educational system and is familiar with basic historical texts taught in high school civics--that's why the vote is limited to 18yo who have presumably graduated from high school and been taught basic american history.

Most parents would agree that, for example, The Declaration of Independence, The Emancipation Proclamation, I Have A Dream Speech and Roe v. Wade are not extrinsic sources of information that only lawyers need to know that have no intellectual or cultural value, but on the contrary these are things that all voters should be familiar with to be informed voters regardless of one's educational and life goals.

I would bet that the colonial bills of rights that inspired the ratification proposals, and the ratification proposals themselves, would be included in this list of basic historical texts that aren't just of interest to lawyers but of all voters who want the US to remain a democratic republic and not collapse into a military dictatorship.

Posted by: Lidsky | Feb 12, 2020 10:18:58 AM

@ Oliver Sherlock Holmes, William Whitestone, and the Centre (the same IP address suggests you’re likely all the same person, but in any case, all comments roughly raise the same point):

Your three comments collectively make the point that we can always consult extrinsic state ratification convention records (to the extent not destroyed) and the English common law in order to attempt to recover original meaning. I personally agree with that point, but the point of Sprague’s discussion about notice to voters (contra the language in Ex Parte Grossman) is that the Court said it was prioritizing natural meaning of text over extrinsic sources, except in the case where textual intention is unclear. If there are terms of art from the common law, those are not readily apparent to non-lawyer voters or even lawyer voters who don't know the relevant English common law history. This might just mean that Sprague’s textualism-over-all proposition is wrong and that voters need to accept the fact that there is technical and historically laden language in the Constitution that doesn’t mean what they think it means and requires the expertise of a lawyer to decode and understand. Still, the aspirational notice to voters concept is interesting and does counsel care when drafting constitutional text.

Posted by: T. Samahon | Feb 11, 2020 11:50:58 PM

What about "herein" in the unamended constitution? Is "herein" more clear than "thereof"?

Article I. Section 1. All legislative powers HEREIN granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

What powers are granted "herein"? Are they limited by the tenth amendment?

Posted by: Thereof Herein | Feb 11, 2020 11:29:25 AM

erratum: I lean toward the accepted answer of the QUESTION posed.

The usage of "thereof" is a result of editing. That can cause problems as might not doing enough of it.

Posted by: Joe | Feb 11, 2020 10:23:53 AM

"dictionaries say thereof is an adverb, which I don't get"

So the word means "of the thing just mentioned; of that."

Perhaps, the part of speech classification helps. Adverbs modify verbs, adjectives and other adverbs, to my understanding.

But, (huh) that common sense thumbnail turns out to be a bit limited. A wider definition: "a word or phrase that modifies or qualifies an adjective, verb, or other adverb or a word group, expressing a relation of place, time, circumstance, manner, cause, degree, etc."

Thus, per Collins, "Thereof is used after a noun to relate that noun to a situation or thing that you have just mentioned."

I lean toward the accepted answer of the answer posed. I can see the possible problem and it shows that mere text without context and other means of interpretation can lead to issues.

Posted by: Joe | Feb 11, 2020 10:20:25 AM

"As to your suggestion that the First Amendment was supposed to codify the understanding of the amendment proposed by Virginia, there is controversy about what the establishment clause requires, whether mere non-preferentialism or something else."

I think the point is that there's no controversy over whether or not Virginia's free exercise of religion clause (independent of the establishment clause) is in the first amendment--because the first amendment obviously codies BOTH the establishment clause and the free exercise in the Virginia proposals.

Posted by: The Centre | Feb 10, 2020 1:35:45 PM

@ Georgia Masonry: “An establishment” is a noun, whether it refers to either an already established church (as existed in some of the states) or a process that makes a religion government-sanctioned or approved. Given the establishment clause was originally in the nature of a congressional disability (Madison proposed its placement in Article I, section 9)—and not any prohibition against the states—the only process of establishment that would have been prohibited at ratification would have been in the U.S. government.

Also, you asked “shouldn’t we consider proposals like that raised by the Virginia Ratifying Convention as clarifying any textual ambiguities." I think the answer is “yes” one can make resort to those, even under Sprague. It qualifies its notice-to-voters rule as applying “where the intention is clear.” Assuming, for argument, “thereof” generates ambiguity, there are many sources one can consult to try and resolve that ambiguity. I don’t dispute that but do say legalese introduces ambiguity as do technical terms of art that aren’t known to the general voting public (as opposed to lawyers trained in the common law). Textual ambiguity will require resort to extrinsic sources, such as historical legal materials.

As to your suggestion that the First Amendment was supposed to codify the understanding of the amendment proposed by Virginia, there is controversy about what the establishment clause requires, whether mere non-preferentialism or something else.

Posted by: T. Samahon | Feb 10, 2020 12:23:37 PM

@ Asher (7:44:09 PM): My problem isn't limited to legalese (my post, for example, also notes legal terms of art). It's more generally concerned with Sprague's idea of notice to the voter on the street, which yes, could implicate any ambiguous drafting.

Posted by: T. Samahon | Feb 10, 2020 10:56:56 AM

@ Thursday Marshall: Sprague didn’t say voters must be able to read the Constitution or else they can’t vote. Sprague claimed (perhaps aspirationally and contestably) that “the Constitution was written to be understood by the voters.” That is consistent with the assumption that the Constitution can be understood universally to put all on notice of its meaning. I suggested that, if we take Sprague seriously, that counsels against unclear drafting, whether embodied as legalese, non-specified antecedents, or invocations of materials that only specialists like lawyers would reasonably know, such as terms of art at common law.

Posted by: T. Samahon | Feb 10, 2020 10:53:34 AM

Does the phrase "free exercise of an establishment of religion" appear far more frequently in British Common Law and Colonial/1776 State Constitutions than the phrase "free exercise of religion"?

Would people familiar with the British law they were governed under in 1775 and the colonial law they were governed under in 1776 be confused and disoriented by a phrase like "free exercise thereof" and think they had suddenly lost the "free exercise of religion" they were granted under British and Colonial law?

Did many of the founders like George Washington suggest that the governments could silence and persecute religious minorities (like mormons) because there was no "free exercise of religion" clause in the federal constitution?

Posted by: William Whitestone | Feb 9, 2020 12:52:11 AM

I don't think your problem is with legalese at all; it's with all pronouns and pronoun-like words (dictionaries say thereof is an adverb, which I don't get) that by their nature don't specify their antecedents. If the non-legalese word "its" preceded "free exercise" ("or its free exercise"), you'd have precisely the same drafting problem.

Posted by: Asher Steinberg | Feb 8, 2020 7:44:09 PM

"Should reasonable (non-lawyer) voters be able to read the U.S. Constitution and understand its meaning?"

Wasn't this the rationale for literacy tests for voting?
Aren't we supposed to assume every adult can understand the law well enough to vote to ensure universal suffrage?

Posted by: Thursday Marshall | Feb 8, 2020 1:44:27 PM

Doesn't constitutional meaning depend on the ratification conventions and the common law?

“Meaning must necessarily depend on the words of the Constitution; the meaning and intention of the convention which framed and proposed it for adoption and ratification to the conventions of the people of and in the several states, together with a reference to such sources of judicial information as are resorted to by all courts in construing statutes, and to which this Court has always resorted in construing the Constitution.”
-Rhode Island v. Massachusetts (1838)

“The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the thirteen States were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.”
-Ex Parte Grossman (1925)

“As the plurality well knows, or should know, the "critical elements" of countless constitutional doctrines nowhere appear in the Constitution's text.”
-Justice Blackmun's opinion in Webster v. Reproductive Health Services (1989)

Posted by: Oliver Sherlock Holmes | Feb 8, 2020 10:56:39 AM

Interesting and important as well. The first amendment, is a very easy case of course. It is short and the layman reading it, may trace or track back, the previous reference ( of " thereof " ). The problem indeed, are complex chains of propositions. Many times, one needs huge knowledge, outside of the text ( let alone the article or clause) in order, to trace back introduced meaning, to current reading. Of course, one word, technical, can be typically overcome, by simply looking in legal dictionary (sometimes general one). But, reconciling complexity and harmony in legislation, this is a different animal.Vastly so.

Just worth to note, in US v. Sprague, the issue, wasn't solely the wording or language, but rather, substantive one:

Whether denying liberty of individuals by certain new amendment, demands, specific mode of ratification ( by convention, not by Congress ) here I quote:

" The appellees contended in the court below, and here,that notwithstanding the plain language of Article V, conferring upon the Congress the choice of method of ratification, as between action by legislatures and by conventions, this Amendment could only be ratified by the latter. They say that it was the intent of its framers, and the Constitution must, therefore, be taken impliedly to require, that proposed amendments conferring on the United States new direct powers over individuals shall be ratified in conventions; and that the Eighteenth is of this character. They reach this conclusion from the fact that the framers thought that ratification of the Constitution must be by the people in convention assembled and not by legislatures, as the latter were incompetent to surrender the personal liberties of the people to the new national government. From this and other considerations, hereinafter noticed, they ask us to hold that Article V means something different from what it plainly says."

The court for several reasons, has rejected it.


Posted by: El roam | Feb 8, 2020 10:50:56 AM

Isn't the "establishment of religion" a process (predicate), not a thing (noun)?

Isn't the first amendment supposed to codify the Amendments proposed by the colonies (like Virginia) as a condition of ratification of the constitution? Can't we just look to those proposals to clarify any meanings or resolve any ambiguities in the text?

"Twentieth, That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established, by law, in preference to others."

Posted by: Georgia Masonry | Feb 8, 2020 10:34:51 AM

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