Proper Legal Uses of the Sources Unconnected to Constitution-Makers

Historical materials directly connected to the makers of a constitution as law may appropriately be considered as, prima facie, authoritative sources for the purposes of legal reasoning, and for interpretative arguments in particular.

As I do not advance any complete theory of constitutional interpretation, I do not consider systematically the problems with using sources connected with constitution-makers. I am also not claiming that it is always prima facie legally proper to rely in legal argumentation on the historical sources connected to constitution-makers. My ambition is much more limited. I only argue that if someone is to use such sources and, explicitly or implicitly, justify that by the legally authoritative role of the associated persons or groups, then it matters whether those persons or groups actually did play such a role. What follows is a discussion of ways to make such references work, even when the persons or groups invoked are not the constitution-maker.

A. Adoption by the Constitution-Maker

Imagine a prince, Alex, who legally holds the exclusive law-making power, but does not himself bother with the hard part of legislating. He does not reflect on the law as it is, and on the reasons for its change, and does not form plans how to change the law. All this is being done by his council. The council submits draft bills to Alex and he invariably signs them into law.

Now, consider another prince, Roger, who differs from the first prince in that he is very inquisitive as to every plan proposed by his council. He never changes the plan, but he takes pains to understand it fully. He would be very cross if the council had a secret understanding of the plan that was not available for Roger to know (at least potentially). In other words, Alex adopts someone else’s plan, whereas Roger legislates his own plan, in which he adopts someone else’s proposal to the extent it is epistemically available to him.^[323]

The nature of the choice made by a constitution-maker could be like the choices made by Alex or by Roger (naturally, it also may be like neither). If so, this has consequences for the sort of historical material that may be legally relevant, because of the constitution-maker’s choice. On the Alex model, even the secret history of drafting by someone who was not the constitution-maker may be made legally relevant by the choice of the constitution-maker. On the Roger model, only the evidence of the intentions or understandings, which were epistemically available to the constitution-maker, may be legally relevant. Either way, it is the constitution-maker who makes the actions or thoughts of someone else legally relevant to the content of his plan to change the law. Evidence of such actions or thoughts is therefore also, prima facie, authoritative.^[324]

There are good reasons to think that the particular constitution-maker did not make a choice described by any of the two models. Consider a judge who gives a judgment entirely prepared by his clerk. Uncontroversially, it does not matter if the clerk had some idiosyncratic understanding of the words he used (even if that understanding was epistemically available to the judge - he could have asked); what matters is what the judge intended to convey or at least what he managed to convey by using the words he used (though did not write).

B. Evidence of Public Meaning

Historical materials associated with the people who were not constitution-makers may also be legally relevant as evidence of public meaning of a constitutional text. In this sense, even secret or private documents are potentially relevant - they may even have more probative value as they are likely not to be strategic in the sense that public political speeches are.^[325] However, this justification should not be overstated.^[326] Drafting a provision is different from speaking in a convention or writing a private letter - the latter are often delivered hastily, without caution.^[327] More importantly, if we are looking for the public meaning (the conventional linguistic meaning of a text), then we can only give a very low weight to any particular source (some single other text in that language) - unless, of course, that source itself reports a reliable lexicographic study, but this is unlikely to be the case. It is hard to escape the impression that those who rely on this justifi­cation still tend to have a bias favouring the ‘illicit' evidence of intentions of non-constitution-makers.^[328]

C. Special Significance Given by Later Legal Practice

The first two justifications are in an important sense given by the historical event of the making of a constitution as law. However, the law may give legal significance to any sort of material and may do so even against all good reason. It could be that the law makes diaries of a particularly prominent drafter conclusive evidence as to the meaning of the constitutional text. This may be a good or a bad idea, but its goodness or badness only legally matters if the law says so. I will not say much more about this possibility. My aim here is to provide a starting point for thinking about authorities in constitution-making and the relevance of authority-derived materials for constitutional law. However, this starting point is only relevant if the law does not already provide a different answer, which may very well be. Impor­tantly, one needs evidence that the law provides such a different answer, as opposed to taking it from some historical or ethical theory that fails to pay sufficient atten­tion to the role of (legal) authority in the law.

IV.