Founding-era translations of the U.S. Constitution.
Progress Clause, Art, 1, [section] 8, cl.8.
English German Dutch To promote the Die Aufnahme der Om den voordgang van Progress of Wissenschaften und weetenschap en nuttige Science and nutzlichen Kunste konsten te bevorderen useful Arts dadurch zu befordern, door (voor bepaalde tyden) by securing for dass er denen Autoren aan de autheurs, en limited Times und Erfindern das uitvinders te verzeekeren to Authors and ausschliessende Recht het uit sluitend regt tot Inventors the zu ihren respectiven hare bysondere schriften exclusive Schriften und en ontdekkingen.... Right to their Entdeckungen fur eine respective gewisse Zeit Writings and versichert.... Discoveries....
The Progress Clause grants Congress the power to create copyrights and patents. The text runs in parallel; Congress is granted the rights to "promote the Progress of Science ..., by securing for limited Times to Authors ... the exclusive Right to their ... Writings" and to "promote the Progress of ... useful Arts, by securing for limited Times to ... Inventors the exclusive Right to their ... Discoveries." (115)
The general consensus is that "science" referred to learning or knowledge. (116) Although the phrase "useful Arts" is more ambiguous, scholars generally agree that it referred to technology, (117) although Edward C. Walterscheid interprets "useful Arts" to mean "helpful or valuable trades."" (118) Nonetheless, the Supreme Court "has shied away from fully defining what constitutes 'the Progress of Science' or 'useful Arts.'" (119) The Progress Clause notably omits any mention of protecting the fine arts, such as sculpture, poetry, painting, and music, which are clearly copyrightable under current statutory law.
There is a paucity of Founding-era interpretive data on the Progress Clause. Although Thomas Jefferson wrote at some length about patents and copyrights, he was not present at the convention in Philadelphia when the Constitution was drafted. (120) There is no record from the Convention of any debate concerning the clause. (121) Indeed, aside from a brief discussion of the clause in Federalist 43, (122) there is very little evidence of how the founders and contemporary readers of the Progress Clause interpreted it.
The Dutch and German translations of the Progress Clause tend to comport with the dominant academic understanding of the phrase "science and useful Arts." "Science" was rendered "Wissenschaften" ("sciences") in German and "wetenschap," meaning science, knowledge, or scholarship, in Dutch. "Useful Arts" in German became "nutzliche Kunste," indicating the skills and techniques of industry and craft, and standing in contrast to "schone Kunste" ("the beautiful arts"), which included painting and poetry. The Dutch translation was similarly rendered "nuttige konsten"--the useful arts, which excluded the visual arts.
Other language in the Progress Clause has been the subject of judicial scrutiny. The Progress Clause's phrase "for limited Times" was at the center of a constitutional challenge to the Copyright Term Extension Act ("CTEA") in the 2003 decision Eidred v. Ashcroft. (123) Eldred challenged the CTEA for extending the copyright term by twenty years, arguing that this extension violated the constitutional requirement that copyrights be granted only "for limited Times." The Supreme Court held that even though the CTEA extended the copyright term by twenty years, the period of copyright protection still comported with the Constitution's requirements because the term was not infinite. (124)
The Dutch and German translations suggest a meaning of "for limited Times" which may slightly differ from the Supreme Court's interpretation. De Ronde translates the phrase to "voor bepaalde tyden"--"for some time" or "for certain times." Similarly, the German is "fur eine gewisse Zeit"--"for a period of time" or "for a sure/certain time." (125) Both suggest that in addition to not being infinite, the term of a patent or copyright may have to be a specific, particular length of time, not necessarily alterable in the future, although one could argue that even an extended term was still for a certain time, and that the certain time had merely changed. In this vein, the term 'gewisse' is also colloquially used in the sense of "some time" as opposed to "an infinite time," in which case an exactly determined or determinable duration is not presupposed.
C. The Necessary & Proper Clause
Necessary & Proper Clause, Art. I, [section] 8, cl. 18.
English German Dutch To make all Laws Alle Gesetze zu Om alle wetten te which shall be machen, die nolhig maken, die noodig necessary and und erforderlich en bequaam zullen proper for carrying seyn werden, die zyn om ter uitvoer into Execution the vorhergehende und te brengen de foregoing Powers, alle andere Gewalt, voorgaande magten and all other die kraft dieser en alle andere Powers vested by Verfassung der machten, gevestigt this Constitution Regierung der by deese in the Government Vereinigten Staaten Constitutie in het of the United oder einem government van de States, or in any Department oder Vereenigde Staaten Department or Beamten derselben of in eenig Officer thereof. erlheilet worden, department of in Ausubung zu officiant daarven. bringen.
The question of what laws are "necessary and proper" for Congress to make harkens all the way back to the ratification debates. Anti-Federalists "pejoratively dubbed the Necessary & Proper Clause 'the Sweeping Clause,' arguing that it granted dangerously broad and ill-defined powers" to the Federal Government. (126) In contrast, "Federalist supporters of the Constitution ... insisted that the Necessary and Proper Clause was not an additional freestanding grant of power, but merely made explicit what was already implicit in the grant of each enumerated power." (127)
Although Mark Graber pessimistically claimed, "no one, including the framers, knows the point of the phrase 'necessary and proper,'" (128) Robert Natelson argues that contemporary documents indicate that "necessary and proper" was a legal term of art frequently used in agency instruments when granting incidental powers to one's fiduciaries. (129) Indeed, during the ratification debates, Federalists wrote as though "proper" indicated that laws must accord with the government's fiduciary duty to the people. (130)
The question of what laws were "necessary" quickly became salient after the Founding, when each branch of government considered whether Congress had the power to charter a bank. James Madison, Thomas Jefferson, and Edmond Randolph interpreted "necessary" in a narrow manner. (131) In contrast, Alexander Hamilton took the view that "necessary often means no more than needful, requisite, incidental, useful or conducive to." (132)
When Chief Justice John Marshall ruled on the constitutionality of the Bank of the United States in 1819, he sided with Hamilton. To Marshall, "necessary" meant "convenient." (133) Although Marshall weaved flexibility into the notion of necessity, he suggested that "necessary" laws must still remain incidental in character. (134) Marshall went on to suggest that the term 'proper' limited Congress to passing laws actually, rather than pre-textually, aimed at achieving the ends listed among the enumerated powers. (135)
The Dutch and German translations of "necessary" denote a stronger requirement than Marshall's notion of convenience, just as the plain text of the English does. De Ronde used the word 'noodig,' meaning "needed" or "demanded." The German translator chose 'nothig,' (136) also meaning "necessary."
The translation of "proper" provides more insight into the minds of the translators. In the Dutch translation, "proper" became bequaam, spelled 'bekwaam' in modern Dutch, meaning competent, able, or capable.137 For a law to be "noodig en bequaam," it would have to be necessary and capable of achieving the end it sought. This suggests an interpretation of "necessary and proper" where laws passed under the Necessary and Proper Clause are constitutional when they are capable of solving the problems or addressing the situations the enumerated powers of Congress were designed for.
The German translation used "erforderlich" for proper, meaning required, requisite to have happen, or "what the situation demands." The translated phrase as a whole, "nothig und erforderlich," is thus somewhat redundant--laws must be "necessary and required." This is a surprising translation because in the German legal vocabulary there was a non-redundant analog to the Necessary and Proper Clause that could be found in contemporary texts: "notwendig und angemessen." "Angemessen" would mean "proper" in the Aristotelian sense, ensuring not only the effectiveness of the means, but also that the means are limited by the goal. In other words, it would not be "angemessen" for one to crack a nut with a sledgehammer. The redundant form the translator uses is not necessarily wrong, and might be understood to have a rhetorical function instead: it emphasizes that the power given is essentially restricted.
Neither translation evinces an understanding of Natelson's notion of agency or a sense that "necessary and proper" laws are merely laws incidental to laws clearly within the powers of Congress. This may be because the translators were unfamiliar with the phrase "necessary and proper" as a term of art. Nonetheless, the view that a proper law is one which is not pre-textually related to an enumerated power is somewhat evoked by the translations "erforderlich" and "bequaam," particularly if one understands 'bequaam' as indicating that a law is only proper if it is capable of advancing the ends Congress is permitted to.
Justice Marshall contrasted the language of the Necessary and Proper Clause with the language prohibiting states from laying imposts of duties. That language states, "No State shall ... lay any Imposts of Duties ... except what may be absolutely necessary for executing its inspection laws." (138) Because the phrase "absolutely necessary" appeared elsewhere in the Constitution, Marshall claimed the "necessity" required by the Necessary and Proper Clause "need not be absolute" and that the term "necessary" could be taken "in its ordinary grammatical sense" and "used in a sense more or less strict." (139)
The terms "necessary" and "absolutely necessary" retain their difference in degree in the German and Dutch translations. In German, "absolutely necessary" became "unumganglich nothig" (uncircumventably necessary). More literally, 'unumganglich' means "unable to be walked around." In Dutch, it became "absolut noodzakelyk" (absolutely necessary). De Ronde curiously chose a very close synonym for 'noodig' in this clause, 'noodzakelyk'. The terms are very often used interchangeably, but to the extent that there are shades of difference in meaning, 'noodig' is something which is demanded or asked for, like a favor, but something that is 'noodzakelyk' is required, like military service.
D. Privileges and Immunities Privileges & Immunities
Clause, Art. IV, [section] 2, cl. 1.
English German Dutch The Citizens of Die Burger eines De burgers van elk each State shall jeden Staats sollen staat sullen regt be entitled to all zu allen Vorrechten hebben tot alle Privileges and und Freyheilen der voorregten en Immunities of Burger in den vryheeden van Citizens in the verschiedenen burgers in de several States. Staaten berechtigt ondcrschydene seyn. Staaten.
Writ of Habeas Corpus, Art. I, [section] 9, cl. 2
English German Dutch The privilege of Das Recht des De privilegie van the Writ of Habeas Habeas Corpus het writ van habeas Corpus shall not be Befehls soll nicht corpus, zal niet suspended.... aufgehoben opgeschort werden.... worden....
There are two frequently-encountered interpretations of the Privileges and Immunities Clause. The first is that the clause merely prevents discrimination between residents and nonresidents of a state--"the Clause guarantees that non-resident citizens will have merely the same privileges and immunities that are guaranteed to resident citizens." (140) The second is that the Clause "guarantees a uniform set of substantive privileges and immunities to citizens of the United States no matter what rights a particular state constitution might contain." (141)
Supreme Court jurisprudence currently treats the Privileges and Immunities Clause as a non-discrimination clause, preventing the governments of a state from discriminating against citizens from other states. (142) Under this interpretation, the phrase "Privileges and Immunities" does not consist of specific protections of substantive rights, but rather requires that any "Privileges and Immunities" granted or recognized by a state are granted or recognized equally in citizens of that state and of other states.
One textual question that persists amidst the debate about the meaning of the Privileges and Immunities Clause concerns the meaning of terms 'privileges' and 'immunities.' Robert Natelson argues these terms are far from inkblots (143) and arrives at the meaning of the terms 'privileges' and 'immunities' by looking at the terms historic usage. Privilege, as defined in a variety of legal dictionaries, tended to mean "(1) a benefit or advantage; (2) conferred by positive law; (3) on a person or place; (4) contrary to what the rule would be in absence of the privilege." (144) Lay dictionaries reflected the same definition. Natelson concludes, "Nothing in these definitions identified privileges with natural rights or natural law. Nor did the definitions suggest that privileges were necessarily created, as some have asserted, by the English common law. On the contrary, the definitions suggest that privileges were departures from the usual course of common law." (145) Similarly, an immunity constituted "an exemption, otherwise contrary to law, given to a person or place by special grant." (146) Although "privileges and immunities" were considered grants from the government to particular, often small, classes of people under early English law, today several "privileges" and "immunities" could be seen as natural rights, such as the right to acquire and alienate land. (147)
De Ronde's translation of "privileges" to "voorregten" reflects the notion that privileges were benefits granted by the state, instead of rights. For "immunities," De Ronde uses "vryheden" (freedoms), a word that reflects a notion of natural liberty rather than a special grant by the state. Sewel's Dutch-English Dictionary from 1766 attests that "voorrecht" is a special privilege, and that freedom (vryheid) is a more general term. (148) Where the term 'privilege' is used in Article 1, Section 9, clause 2, describing the "privilege of habeas corpus," De Ronde chooses the cognate "privilegie" to stand in for privilege.
The German translator also gives a meaning to "privileges and immunities" that is not quite in accord with existing theories, but which is notably aligned with the meaning evoked in De Ronde's translation. For "privileges," he uses "Vorrechte," meaning a special benefit granted. But for "immunities," he uses "Freyheiten" (freedoms). "The Privilege of the Writ of Habeas Corpus," however, becomes the right of habeas corpus--"Das Recht des Habeas Corpus," now equating "privilege" ("Vorrecht") and the more modern "right" ("Recht").
E. Natural Born Citizen
Natural Born Citizen, Art. II, [section] 1, cl. 5.
English German Dutch No person except a Niemand ausser ein Geen persoon dan natural born geborner Burger, een ingeebooren Citizen, or a oder der zu der burger, of die een Citizen of the Zeit, da diese burger is van de United States, at Verfassung Vereenigde Staaten the time of the angenommen wird, op den tyd can de Adoption of this ein Burger der adoptie van deese Constitution, Vereinigten Statten Constitutie, zal shall be eligible ist, soll zu dem verkiesbaar zyn lol to Ihe Office of Amte eines het officie van President.... Prasidenten President.... wahlfahig seyn....
Recent presidential elections have raised the question of what it means to be a "natural born Citizen" eligible to become President of the United States. The Republican presidential candidate in 2008, John McCain, was born to American parents in the Panama Canal Zone in 1936, while his father was on active duty in the U.S. Navy. (149) Before McCain, a shadow was also cast on George Romney's attempt to win the Republican presidential nomination in 1968; Romney was born in Mexico to U.S. citizen parents. (150)
There are competing interpretations of the phrase "natural born Citizen." Gabriel Chin argues that to be a natural born citizen, one must be a citizen "at the moment of birth," whether or not that citizenship is acquired under the citizenship clause of the Fourteenth Amendment or by Congressional statute. (151) A competing view is that one is only a natural born citizen if one is born within the United States. Under this view, a child who is born to American citizens abroad is naturalized at birth by statute and is not a natural born citizen. (152) Still another view holds that the citizenship clause of the Fourteenth Amendment is not the right place to look for the definition of "natural born Citizen," as the Fourteenth Amendment was passed after the Constitution was adopted, and that the notion of "natural born Citizen" can be extracted from the common law. (153)
Larry Tribe and Ted Olson claim the "natural born Citizen" language contemplates the inclusion of children of American citizens, arguing that the clause was inspired by the British Nationality Act of 1730, which provided that children born abroad to "natural-born Subjects" of the British crown were "natural-born Subjects" themselves. (154) In Tribe and Olson's view, the Natural Born Citizen Clause tracks the existing understanding of natural born subjects in England, simply substituting the word "Citizen" for "Subject." (155) Larry Solum similarly looks to Blackstone's discussion of "natural born subjects" as an indication of what people during the Founding might have looked to in order to understand the phrase "natural born Citizen." (156) However, Blackstone is "not completely clear or precise." (157) Blackstone states, "Natural-born subjects are such as are born within the dominions of the crown of England." (158) But he also qualifies the statement, noting "all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural born subjects themselves, to all intents and purposes." (159)
De Ronde translates "natural born Citizen" to "ingeebooren burger" (an inborn or innate citizen). As written, De Ronde's language is close to a word-for-word literal translation of the English text, but in Dutch the language becomes somewhat redundant. In Dutch, a 'burger' meant a person who was a citizen automatically or at birth, (160) as contrasted to a 'porter,' who was a naturalized citizen. (161) The different terms arose from a physical understanding of Dutch cities. At the center of old Dutch cities was a fort (burg or burcht, the same root existing in the French adjective bourgeious); the "poort" was the gate into the city. One thus belonged truly to the center of the city, or one was admitted from the outside. The choice of "ingeebooren" could indicate De Ronde's belief that a citizen needed to be born in the United States, or the entire phrase could simply be understood as an imperfect attempt to literally translate the English text, as De Ronde does at many points in the Dutch copy.
The German translation gestures at the broader interpretation of the Natural Born Citizen Clause, using the phrase "ein geborner Burger." A Burger belonged to a privileged group in urban society: he was neither noble nor clergy, but nevertheless had, unlike the rest of the population, (162) certain freedoms and rights. Although 'Burger' is thus not a perfect substitute for 'citizen,' it could nevertheless be commonly used in this way during the eighteenth century, especially when translating the Latin term 'civis' or the English 'citizen.' Since Germany was not a republic, a more adequate term was not at hand. (163)
"Ein geborner Burger" then roughly means "a born citizen," dropping the term 'natural' entirely. Why did the translator omit the word 'natural'? One possibility is that the translator believed the notion of "natural born" was completely captured by "geborner," that he could not conceive of how someone who was "born a citizen" would not be a "natural born Citizen," and that he understood such tautology in the original simply as a rhetorical cliche....
Ersch-Gruber, (164) an early nineteenth century German Encyclopedia, includes the statement that "every Son of a Citizen is a born Citizen," (165) which could easily be regarded as tautological. Naturalization or birth were the only two ways of becoming a "Burger," tertium non datur, and due to the blood principle, a child born oversees would not need to be naturalized. (166) Notably, in German-language discussions of the Natural Born Citizen clause during the early nineteenth century, the "natural" is usually omitted. (167) "[N]aturally born" is simply understood to stand in contrast to the cases of adoption (and the special case of residence in part of Missouri at the time of the French cession). (168)
F. The Recess Appointments Clause
Recess of the Senate, Art. II, [section] 2, cl. 3.
English German Dutch The President shall Der Prasident soll De President zal magt have Power to fill Gewalt haben, alle hebben om alle vacante up all Vacancies erledigte Stellen, plaatsen die mogen that may happen die sich wahrend voorvallen gedurende de during the Recess dem, da der Senat afweezenthyd van de of the Senate, by nicht sitzt, Senaat, op te vullen door granting ereignen mogen, commissies te vergunnen Commissions which durch Ertheilung welke zullen ophouden shall expire at the der Commissionen zu met het eijnde van haar End of their besetzen, welche naast volgende sitting. next Session. am Ende der nachsten Sitzung desselben aufhoren sollen.
In January 2012, President Obama appointed Richard Cordray to head the newly-created Consumer Financial Protection Bureau ("CFPB"), as well as three other individuals to the National Labor Relations Board ("NLRB"). (169) Cordray's nomination had been blocked by a Senate filibuster since July 2011. (170) The President had acted during what the executive claimed was a "Recess of the Senate," permitting him to bypass the requirement to receive the "Consent of the Senate." At the time of the appointments, the Senate was meeting in pro forma sessions every three business days from December 20, 2011, through January 22, 2012, rather than officially ending the legislative session. (171) Often the meetings lasted "minutes or even seconds ... to meet the definition of holding a Congressional meeting." (172) Senate Democrats had used the same tactic in the past to prevent President Bush from making recess appointments. (173)
The question of whether President Obama's appointments qualified as occurring "during the Recess" made its way to the Supreme Court and was answered in June 2014. All nine justices held that the appointments were unconstitutional, however they disagreed on why. Writing for the majority, Justice Breyer held that the term "the Recess" includes both the intersession recess between Senate sessions and "an intra-session recess of substantial length." (174) The majority understood the purpose of the clause as preventing governmental action from grinding to a halt during the Senate's extended absence. (175) As the D.C. Circuit noted in the same case, "[a]t the time of the Constitution, intersession recesses were regularly six to nine ... months ... and senators did not have the luxury of catching the next flight to Washington." (176) Although the President could hypothetically exercise the recess appointments power during an intra-session break of the Senate, the Court deemed the three-day break at issue was too short to constitute a break that would activate the recess appointments power. (177) In contrast, Justice Scalia's concurrence maintained that the term "the Recess" could only refer to the single intersession recess that occurred between formal legislative sessions. (178) "[I]f 'the next Session' denotes a formal session, then "the Recess" must mean the break between formal sessions." (179)
Although most of the German translation of the Constitution is literal, the Recess Clause is paraphrased. "[D]uring the recess of the Senate" became "da der Senat nicht sitzt"--"when the Senate is not sitting." In the same manner the German translator circumscribes "recess" in art. II, [section] 2, cl. 3. De Ronde translates the recess clause to "gedurende de afweezenthyd van de Senaat"--or "during the extended absence of the Senate." In other Dutch documents from the period, the word 'afweezenthyd' is used when an official or member of royalty is absent from a place for months or years, such as when one is on an extended trip abroad. In this sense, it is different from the modern Dutch 'afwezigheid' which refers more generally to one's absence, or to one being merely "not present," such as when one does not attend a business meeting. De Ronde's choice of 'afweezenthyd' indicates that he interpreted the original to mean that the absence was more than immediate or temporary, but extended.
The Dutch translation gestures at the underlying purpose of the Recess Appointments Clause--to give the President the power to get work done when the Senate was absent for an extended period of time and, by extension, could not approve a candidate. Because of the difficulty and slow pace of travel in the late eighteenth-century, senators would literally be unable to approve nominees when they left the Capitol to return to their home states. The Recess Clause would have allowed the President to temporarily fill vacancies during periods when the senators were absent for an extended period of time.
In contrast, the German translation brings less clarity to the Noel Canning question. The definite article--"the Recess"--is absent from the German translation. And the eighteenth-century German distinction between 'seance' and 'session'--the former meaning the individual meeting, the latter the longer period of time convened, including adjournments--does not provide much guidance because "to sit" is the root of both nouns. (180)
Nonetheless, the German translator's choices can contribute to the discussion. Although he uses "sitting" in the sense of "seance" in art. I, [section] 3, cl. 6, his understanding of the word 'recess' becomes more clear when paraphrasing it in art. I, [section] 3, cl. 2. In that clause, "recess" is understood as the interim period after the assembly has parted ("wahrend der Zeit, da ... auseinandergegangen ist") until the next "coming-together" (the literal meaning of "Zusammenkunft"). However, only so much can be read into this phrasing, because the translator also uses "Zusammenkunft" in the case of adjournment. (181)
Art. I, [section] 6, cl. 1.
English German Dutch They shall in all Sie sollen in allen Zu182 zullen in alle Cases, except Fallen. Hochverrath, gevallen, uitgezonderl Treason, Felony and Hauptverbrechen und van verraad, dood Breach of the Friedensbruch waerdige misdaad en Peace, be ausgenommen, von verbrekinge van vreede, privileged from Arresttirung wahrend hel voorregt hebben om Arrest.... dem.... niet gearresteerd te worden....
Art. I, [section] 8, cl. 10.
English German Dutch To define and Seeraubcrey und Om te bepalen en te punish Piracies Hauplverbrcchen, straffen zeerooverien en and Felonies die auf der offenen doodwaardige misdaaden committed on See begangen gepleegt op de hooge the high werden.... zee.... Seas....
Art. IV, [section] 2, cl. 2.
English German Dutch A Person charged in Wenn jemand in Een persoon in eenige any Slate with einem Staate des staat beschuldight van Treason, Felony, Hochvcrraths, eines verraad, felony of or other Crime, who Haupt- oder andern andere misdaad, die shall flee from Verbrechens van de justitie zoude Justice.... beschuldigt vlieden.... wird, und der Gerechtigkeit entfliehet....
The term 'felony' has had a very broad and frequently changing meaning. Writing in 1823, Massachusetts lawyer and legislator Nathan Dane wrote in his treatise on American law, "[T]he word felony, in the process of many centuries, has derived so many meanings from so many parts of the common law, and so many statutes in England, and has got to be used in such a vast number of different senses, that it is impossible to know precisely in what sense we are to understand this word." (183) Although felonies were traditionally punished by forfeiture of property or death under the common law in England, (184) in America at the time of Dane's writing, there were "many felonies, not one punished with forfeiture of estate, and but a very few with death." (185) Blackstone similarly explained, "Felony, in the general acceptance of our English law, comprises every species of crime, which occasioned at common law the forfeiture of lands or goods." (186)
For "felony," the German translator chose the word Hauptverbrechen. In the present day, the term is no longer in use. (187) In the tradition of the early penal codes and its translations, (188) it meant "head crime"--one automatically punished by death, usually decapitation. (189) Like the English term 'felony,' 'Hauptverbrechen' had already experienced a considerable semantic shift in Germany by the late eighteenth century, and the translator could have intended the term to encompass a variety of meanings. Most likely, he intended a more modern meaning, since fundamental changes in the penal system had already severed the direct link between the gravity of the offense and the punishment. (190) The secondary meaning "Haupt-" always possessed outside the field of criminal law ("main") had largely replaced the primary meaning ("capital") even in the field of penal law. (191) In contract law, "Haupt-Pflicht" ("capital duty") was already understood to be the main duty of a party, and in the Field of Ethics, "Haupttugend" ("capital virtue") could stand in for "Kardinaltugend" ("cardinal virtue"). (192) When Campe's Dictionary defines "Hauptverbrechen" in 1808, there is no explicit reference made to the death-penalty. Instead the term is defined as "a grand, grave crime (capital crime)," (193) although German legal scholars of the early nineteenth century would still have to debate what was meant when interpreting a law that uses the term. (194) When Johann Joachim Eschenburg used the term in 1783, he stated that the usual punishment for murder, as a capital crime, was banishment, a statement which would be contradictory if "Hauptverbrechen" required the death penalty. (195)
Evidence that such semantic shift was taking place is particularly visible in a German translation of the proposed Seventh Amendment (which became codified as the Fifth Amendment) from the early 1800s. The phrase "capital, or otherwise infamous crime" is simply translated as "Haupt-Verbrechens," illustrating that the term could serve as a translation for both "capital crimes" in the literal sense, and those crimes that are "as infamous" as such crimes. (196)
In the Dutch translation, despite the allegedly amorphous meaning of 'felony,' De Ronde used a strikingly unambiguous term in translation. De Ronde translated "felony" to "doodwaardige misdaaden"--literally, "crimes worthy of death" (except in art. IV, [section] 2, where he curiously says "felony," without translation). De Ronde's choice particularly suggests that despite the vague meaning of 'felony' before and after the Founding, some individuals might have still understood it as having a clear, narrow meaning--namely, a capital crime.
H. High Crimes & Misdemeanors
Art. II, [section] 4.
English German Dutch The President, Vice Der Prasident, De President, Vice- President, and all Vice-Prasident und President en alle civil Officers of alle burgerliche burgelyke officianten the United States, Beamte der van de Vereenigde shall be removed Vereinigten Staaten Staaten zullen afgezet from Office on sollen ihres Amtes worden van haar Impeachment for, entsetzt werden, officie, op een and Conviction of, wenn sie wegen impeachment voor, Treason, Bribery, Hochverraths, en overtuigen van, or other high Bestechung oder verraad, bribery, Crimes and anderer hohen of andere sware Misdemeanors. Verbrechen und misdaaden en Uebclthaten wangedragingen. offentlich angeklagt und davon uberfuhret werden.
The phrase "high Crimes and Misdemeanors" is, at first glance, fairly opaque. A clue to its meaning comes from Blackstone, who distinguished "high treason" from "petit treason." Petit treason included breaches of "private and domestic" allegiances. (197) High treason constituted crimes against society as a whole. (198) Following on this distinction, Raoul Berger explained that the English treated "high crimes and misdemeanors" as "a category of political crimes against the state." (199) Berger's analysis claimed "high Crimes and Misdemeanors" included misapplication of funds, abuse of official power, neglect of duty, encroachment upon parliamentary prerogatives, corruption, betrayal of trust, and giving pernicious advice to the Crown. (200) Berger concludes, "[t]he phrase 'high Crimes and Misdemeanors,'... is not concerned with 'high' in the sense of 'serious' crimes as such, but with misconduct by officials in high places who are immune to ordinary forms of judicial or political control." (201) Michael Gerhardt similarly reads "high Crimes and Misdemeanors" as "not limited to indictable offenses, but rather including] great offenses against the federal government." (202)
The German translator writes "hohen Verbrechen und Uebelthaten," or "high Crimes and Misdeeds," where 'hohen' most literally means high (as in altitude). The German text is much more ambivalent here than in the case of "Hauptverbrechen" and more complex than the English and Dutch prints. The choice of the German translator to use "hoch" ("high") in this passage, together with his choice in art. III, [section] 3, cl. 1, to substitute "Treason" with "Hochverrath" ("high treason"), tracks Blackstone's distinction between high and petit treason. But although "Hochverrat" ("high treason") in contemporary German was understood to denote treason, directed against the state or its head, (203) this understanding is muddied by the fact that 'high' and 'capital' were sometimes used as synonyms in the late eighteenth-century legal discourse. (204) Not only could 'high' and 'capital' both refer to the seriousness of the crime, as already presumed in the case of "felony" ("Haupt-Verbrechen"), but "Haupt-" could, as in the case of treason, be used to denote offences against the state and its leader, with the consequence that the term 'Hauptverrath' and 'Hochverrath' become interchangeable in this semantic context. (205) Campe's Dictionary from 1808 accordingly lists both possibilities when explaining "Hochverbrechen" ("high crime"): the broader meaning of "a grave or exceptional crime," and the more narrow meaning of "crime directed against the state or its head." (206)
These usages in mind, it might be prudent not to read too much intent into the German translation of "high Crimes," since there is a general tendency of the draft's German translator to translate as literally as possible, and hereby to choose a cognate or even use an Anglicism, without giving much thought to the question of whether the cognate in the individual case would be the most appropriate German term to stand in for the original term. So, although the specific definition of "high treason" in the German system and its deliberate choice by the translator could accord with a translator's intention to evoke Blackstone's notion of high crime rather than petit crime (a distinction that even had found its way into Kruenitz's Encyclopedia (207) during the early 19th century), the possible synonymy of 'high' and 'capital' may render the German translator's verbatim choice less significant. In the case of our translator and his tendency for verbatim translation, this could even be much more likely the case; his literal translation of "high" could simply be an example of where the German translator translated in a rote manner.
In Dutch, De Ronde says, "wangedragingen," for "misdemeanors," meaning "misconducts" or "misbehaviors." However "high Crimes" emerges in De Ronde's Dutch as "sware misdaaden"--"serious crimes." De Ronde's translation likely says more about the public's understanding of the phrase "high Crimes" than about whether Berger and Gerhardt correctly identified the phrase's origins. De Ronde was not a lawyer and could easily have been unaware of Blackstone and other sources that distinguish between high and petit treason. The translation of "high Crimes" then presents a particularly stark example of how the intent of the authors of the Constitution might significantly deviate from the publicly-understood meaning of the phrase. Supposing that "high Crimes" was meant to evoke a crime against the state, De Ronde's translation illustrates that some members of the Founding-era public may have understood the language to simply mean "serious crimes" as opposed to minor or unimportant crimes.
This observation is particularly notable in light of John McGinnis and Michael Rappaport's proposition that the lay public would have recognized legal language in the Constitution and refrained from coming to a judgment about its meaning. McGinnis and Rappaport argue that
It is a common, if not universal, reaction for a layperson to read a legal document, whether a contract, statute, or a constitution, and have the following reaction: "Well, it seems to mean X to me, but I am not a lawyer. To be sure of its meaning, I will need a lawyer to read it."... This example suggests that the linguistic practice of the community would give priority to legal interpretive rules and to the lawyer's understanding of legal documents, such as the Constitution." (208)
De Ronde's translation suggests that at least some members of the educated, Founding-era public might not have always recognized each of the legal or specialized terms in the Constitution. As a result, they may have developed their own interpretations of the language and failed, as De Ronde did, to defer to a lawyer's interpretation. Alternatively, one might imagine that De Ronde did not have the opportunity to corroborate his interpretation and was not actually subjectively certain of the Constitution's meaning on this point. This view is possible given De Ronde's preference for using cognates instead of locutions to express American legal concepts. (209) On the other hand, it might also be implausible to suppose that De Ronde translated and published a text that he affirmatively believed might be incorrect.
This Article has analyzed two Founding-era translations of the United States Constitution and considered their usefulness as a means of interpreting the Constitution's text. Our exegesis illustrates that the translations provide useful insight, but are also limited in significant ways.
Because translation presupposes interpretation, the particular choices of the translators can be understood as Founding-era commentaries on the Constitution. Commentary is not only present where the translators paraphrased or even chose to substitute a technical term with an extended explanation. Rather, the translator's choice of words and sentence structure itself inherently reflects analysis. The fact that languages are far from isomorphic, that in a large number of cases the translator had the option or need to choose from among many terms or phrases with varied meanings, sheds light on how a member of the Founding-era public would have understood the English-language text. Indeed, the examples we treated in this paper collectively illustrate a range of views that the Founding-era public might have had about the content of the Constitution.
Our discussion also highlighted a number of limitations present when using the Founding-era translations as an interpretive tool. The issues range from how authoritative a translator's understanding of a legal text can be, to how conscious the translator was of the nuanced meaning of his choices. While these issues are significant, the translations still can serve as a piece of the interpretive puzzle and add to our understanding of the Constitution as a whole. Despite any ambiguities and disagreements, the translations provide additional evidence of the Constitution's original public meaning and ought to stand alongside contemporary news articles, commentaries, convention notes, and dictionary definitions.
The limitations of using translations to interpret the original text are most clearly apparent in those cases where our translators disagree on the meaning of a passage. Whereas De Ronde's translation of "regulate" preserves the idea of regulation as "making regular," the German translation appears to allow the government greater latitude to establish commerce where it might not have previously existed. De Ronde's notion of "proper" laws concerns whether they achieve their ends, whereas the German translator's "proper" law is merely a required one. Although the German translations of "high Crimes" and "felony" track the dominant academic and contemporary understanding of the terms, De Ronde's translations deviate sharply from those interpretations. His translation of "high Crimes" evokes severity rather than a crime against the state; similarly, his translation of "felony"--"crime worthy of death"--is both highly specific and at odds with existing English and American law.
Such semantic dissociation between the two translations can be understood as either an example of differing interpretations, or as a contingent result of the translation process as a more or less conscious and controlled activity that inevitably leads to differences and even errors. The latter possibility might often be the case with these translators' work. The fact that even within their own translations, certain terms are not applied in a consistent way calls into question the usefulness of understanding every word-choice as an interpretative argument. It is also worth recognizing that agreement between the translators does not necessarily indicate their interpretation reflected that of the rest of the Founding-era public. Agreement could spring from a consensus on the meaning of a respective passage, but could also simply be a case of coincidence. Concord in these cases does nevertheless have a significant heuristic value: there is a good chance that the translations agree with each other for a reason. Coupled with the translations' historic value, these insights render the Founding-era translations of the United States Constitution an invaluable source for constitutional scholars and lawyers today. For too long, they languished in obscurity--now they may be read, criticized, and reinterpreted.
Christina Mulligan is an Assistant Professor of Law at Brooklyn Law School. Michael Douma is the Director of the Institute for the Study of Markets and Ethics at Georgetown University. Hans Lind is a Giamatti Fellow at Yale University. Brian Quinn holds an M.A. in Comparative Literature from the University of Chicago and a B.A. in English from Harvard University. Where uncited, Dutch interpretations were completed by Michael Douma and German interpretations were completed by Hans Lind. The authors wish to thank Jack Balkin, William Baude, Randy Barnett, Randy Beck, Jud Campbell, Nathan Chapman, Dan Coenen, Kent Dolphay, Richard Epstein Bill Glod, Christopher Green, Jill Hasday, Jeanne Hoffman, Martin Kagel, Kurt Lash, Robert Leider, Michael McConnell, Tim Meyer, Joe Miller, Thomas E. Mulligan, George Pike, Richard Re, Bo Rutledge, Stephen E. Sachs, Frederick Schaucr, Larry Solan, Larry Solum, Christian Turner, Kirk Wetter, the faculty workshop participants at the University of Georgia, the fellows of the Information Society Project at Yale Law School, and the participants in the Sixth Annual Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference. Special thanks to Michael Widener, Rare Book Librarian & Lecturer in Legal Research at the Lillian Goldman Law Library at Yale Law School, for his invaluable research help, without which this project could not have been completed.
(1.) The primary translations this Article will refer to are: Verfahren der Vereinigten Convention gehalten zu Philadelphia, In dem Jahr 1787, Und DEM ZWOLFTEN JAHR DER AMERICANISCHEN UNABHANGIGKEIT. AUF VERORDNUNG der General Assembly von Pennsylvanien aus dem Englischen ubersetzt (Michael Billmeyer ed., presumed 1787) [hereinafter "U.S. Const. (German)"], http://modcrn-constitutions.de/US-00-1787-09-17-de-e.html; and Charles R. Webster, De Constitutie, eenpariglyk geaccordeerd by de Algemeene Conventie, GEHOUDEN IN DF. STAD VON PHILADELPHIA, IN'T JAAR 1787: EN GESUBMITTEERD A AN het Volk der Vereenigde Staaten van Noord-Amerika, Vertaald door Lambertus de Ronde, Gedruckt by Order van de Federal Committee, in de STAD VAN ALBANY (1788) [hereinafter "U.S. Const. (Dutch)"], http://modernconstitutions.de/US-00-1787-09-17-nl-e.hlml. Both documents are reprinted in 1 CONSTITUTIONS OF THE WORLD FROM THE LATE 18TH CENTURY TO THE MIDDLE OF THE 19TH CENTURY (Horst Dippel ed., 2006) [hereinafter "1 Dippel"].
(2.) An original copy of the German-language U.S. Constitution can be found at the Lilly Library at Indiana University, Bloomington, and an original copy of the Dutch-language U.S. Constitution is on file in the Historical and Special Collections of the Harvard Law Library. See U.S. Const. (German), http://www.modern constitutions.de/nbu.php?pagc_id=02a1b5a86ff139471c0b1c57f23ac196&show_doc=US00-1787-09-17-de&viewmode=thumbview (last visited Oct. 14,2015) (slating that the Lilly Library, Indiana University has made copies of the German translation of the U.S. Constitution available); U.S. Const. (Dutch), http://www.modernconstitutions.de/nbu.php?page_id=02a1b5a86ff139471c0b1c57f23ac196&show_doc=US-00-1787-09-17-nl&viewmode=thumbview (last visited Oct. 14, 2015) (stating that the Historical and Special Collections of the Harvard Law Library has made copies of the Dutch translation of the U.S. Constitution available).
(3.) 1 DIPPEL, supra note 1 (comprising the U.S. Constitution in English, German, and Dutch, as well as each proposed amendment in English and German through 1810).
(4.) The German translation is so obscure that the Library of Congress website appears to be unaware of its existence, incorrectly surmising that the Dutch translation was the earliest publication of the Constitution in a non-English language. See Widespread Interest in the Founding Documents, Libr. of Congress., http://www.loc.gov/exhibits/ creating-the-united-states/constitution-lcgacy.html (last visited Oct. 14, 2015) ("Displayed here is a 1788 copy of the Constitution in Dutch, perhaps the earliest example of its publication in a language other than English.").
(5.) See infra app.
(6.) PAULINE MAIER, RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION, 1787-1788, at 27 (2010).
(7.) Id. at 59.
(9.) 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 62-64 (Merrill Jensen ed., 1976) [hereinafter DHRC II]. On September 24, Assemblyman William Findlay moved that 3,000 copies be printed in English and 500 printed in German. Id. at 62. Later in the day it appears Findlay moved for 1,000 copies to be printed in English and 500 copies in German, and the motion "was agreed to." Id. at 63. The following day, "[Assemblyman] Robert Whitehall],[ thinking the number, ordered [the previous day] to be published of the plan of the federal government, [was] too small]] ... moved to add two thousand more to that motion." Id. Assemblyman Hugh Brackenridge disagreed, arguing that, the number of fifteen hundred, ordered yesterday, would be enough to convey the information generally through the state." Id. ft was eventually ordered that "two thousand copies in English and one thousand in German be printed in addition." Id. at 64. Adding the totals from September 24 and September 25, it would appear that 3,000 copies were printed in English and 1,500 were printed in German. Describing these events, Pauline Maier wrote, "On Tuesday, September 25, the assembly ordered two thousand copies of the Constitution printed in English and another thousand in German for distribution throughout the state." Maier, supra note 6, at 60. Maier did not mention the September 24 order.
(10.) According to the 1790 census, 160,000 of Pennsylvania's 434,373 inhabitants were German, and this tongue "was the standard language in the area where the German population was concentrated." Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 11 Minn. L. Rev. 269,310 (1992) (citing 2 ALBERT B. FAUST, THE GERMAN ELEMENT IN THE UNITED STATES 14 (1909) and HEINZ KLOSS, THE AMERICAN BILINGUAL TRADITION 140 (1977)). SEE ALSO FRANK R. DIFFENDERFFER, THE GERMAN IMMIGRATION INTO PENNSYLVANIA (1977) (explaining that most authorities agree that German speakers in Pennsylvania constituted about one-third of the total population of Pennsylvania between 1730-1790).
(11.) DHRC II, supra note 9, at 57, 63.
(12.) Id. at 64.
(13.) See U.S. CONST. (German), supra note 1.
(14.) NICOLINE VAN DER SIJS, COOKIES, COLESLAW, AND STOOPS: THE INFLUENCE OF DUTCH ON THE NORTH AMERICAN LANGUAGES 34 (2009).
(15.) 1 DIPPEL, supra note 1, at 80.
(16.) MAIER, supra note 6, at 328.
(17.) Id. at 333-34. On April 10,1788, Webster printed a circular by the Anti-Federal Committee raising over thirty objections to the Constitution--about ten days later he published the Federal Committee's detailed rebuttal. Id.
(18.) 1 Dippel, supra note 1, at 80.
(19.) See Edward Tanjore Corwin, A Manual of the Reformed Church in America (formerly Reformed Protestant Dutch Church) 1628-1902, at 417 (4th ed. 1902).
(21.) See Joyce D. Goodfriend, The Cultural Metamorphosis of Domine Lambertus de Ronde, Hudson River Valley Rev., Spring 2009, at 63.
(22.) Corwin, supra note 19, at 417.
(23.) Id. The Ecclesiastical Records of State of New York state that De Ronde was hired "under condition of becoming a coetus." 6 ECCLESIASTICAL RECORDS OF THE STATE OF NEW YORK 3495 (Edward Tanjore Corwin et al. eds., 1905) [HEREINAFTER ECCLESIASTICAL RECORDS],
(24.) Adrian C. Leiby, The Revolutionary WAR IN THE HACKENSACK VALLEY: THE JERSEY DUTCH AND NEUTRAL GROUND, 1775-1783, at 20 (2d. ed. 1992). During the Revolutionary War, most Conferentie supporters in the Hackensack Valley became British loyalists. Id.
(26.) See John W. Beardslec III, The American Revolution, in JAMES W. VAN HOEVEN, PIETY AND PATRIOTISM 17-34 (1976).
(27.) CORWIN, supra note 19, at 417.
(28.) Id. at 418. Laidlie "organize[d] special meetings where women by themselves, and men and youths by themselves expounded] the Scriptures by turns, repeat[ed] prayer from memory, discuss[ed] questions of conscience, etc." Letter from Rev. Lambertus De Ronde to Rev. John Kalkoen, (Sept. 9,1765), in ECCLESIASTICAL RECORDS, supra note 23, at 4006. In a letter, De Ronde described the tension:
[E]ver since the hour when a call was first extended to Rev. Laidlie, there has been no [peace] in our congregation; that the Dutch party is much dissatisfied with the English party, on account of the election of certain members of the Consistory. These were chosen for the satisfaction of the (young) Americans, because they had voted for an English-speaking minister. The Dutch party took this very ill.... This quarrel has not abated at all since the arrival of Rev. Laidlie. His Rev. was not willing to preach from Passion-texts, or holiday-sermons, as he ought to have done; nor is he willing to be subordinate.... Furthermore, he recommends that book of Marshall (on Sanctification), and gives utterance to incautious expressions, peculiar opinions, both in and out of the pulpit. All these things make matters worse, and cause many to fear that he will yet become an Independent; especially because he has many adherents."
Id. Laidlie's all-female group "was perceived as a dangerous innovation by his orthodox colleague, Lambertus De Ronde." Joyce D. Goodfriend, Incorporating Women into the History of the Colonial Dutch Reformed Church: Problems and Proposals, in PATTERNS & Portraits: Women in the History of the Reformed Church of America 30 (Renee S. House & John W. Coakley eds., 1999).
(29.) Goodfriend, supra note 2t, at 64.
(30.) See id. at 65-66.
(31.) Id. at 65.
(32.) Id. at 67.
(34.) Id. at 68.
(35.) Id. at 65.
(37.) CORWIN, supra note 19, at 417.
(38.) Goodfriend, supra note 21, at 70.
(39.) Id. at 63.
(40.) See 5 APPLETON'S CYCLOPAEDIA OF AMERICAN BIOGRAPHY 316 (James Grant Wilson & John Fiske eds., New York, D. Appleton & Co. 1888).
(41.) See I COLLECTIONS OFTHE NEW YORK HISTORICAL SOCIETY 391 (1841).
(42.) Goodfriend, supra note 21, at 69.
(43.) WILLIAM ELLIOT GRIFFIS, THE STORY OF NEW NETHERLAND: THE DUTCH IN AMERICA 250 (1009).
(44.) SIJS, supra note 14, at 35.
(45.) See generally MAIER, supra note 6, at 327.
(46.) Id. at 327,341.
(47.) Id. at 341.
(50.) Id. at 348.
(51.) See id. at 342.
(52.) DHRC II, supra note 9, at 23.
(53.) See generally MAIER, supra note 6, at 376.
(54.) CORWIN, supra note 19, at 418-19. See generally John P. Kaminski, New York: The Reluctant Pillar, in THE RELUCTANT PILLAR: New YORK AND THE ADOPTION OF THE FEDERAL CONSTITUTION (Stephen L. Schechter ed., 1985). See also Gregory E. Maggs, A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution, 87 B.U. L. Rev. 801,832-33 (2007).
(55.) CORWIN, supra note 19, at 418-19.
(56.) I DIPPEL, supra note 1, at 64 n.l (noting that the Billmeyer print is identical to the 1788 Charles Webster print).
(57.) See John F. Manning, Textualism and the Role of The Federalist in Constitutional Adjudication, 66 GEO. WASH. L. REV. 1337,1356 (1998). In other words, "these works arc simply good constitutional commentary by members who were or nearly were members of the political community within which the Constitution was adopted." Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, 91 Geo. L.J. 1113, 1178 (2003). To the extent that the original understanding of the ratifiers is considered significant, the translations arc additionally relevant to those questions, as there is a good chance that some ratifiers in Pennsylvania and New York had seen the translations. Notably, the chairman of the Pennsylvania ratifying convention, Frederick Augustus Muhlenberg, was the son of a German Lutheran pastor and had studied in Germany for many years. See Oswald Seidensticker, Frederick Augustus Conrad Muhlenberg, Speaker of the House of Representatives, in the First Congress, 1789, 2 PENN. Mao. of Hist. & Biography 184,184-85,202 (1889).
(58.) Roman Jakobson, On Linguistic Aspects of Translation, in THE TRANSLATION STUDIES READER 114 (Lawrence Venuti ed., 2000).
(59.) See Cicero, De Oratore, in WESTERN TRANSLATION THEORY from Herodotus to Nietzsche (Douglas Robinson ed., 2002).
(60.) Jakobson, supra note 58, at 114.
(61.) Id. al 116.
(62.) See George Steiner, The Hermeneutic Motion, in THE TRANSLATION STUDIES READER 156 (Lawrence Venuti ed., 2000). Similarly, Lawrence Lessig has noted that "[t]he translator's task is always to determine how to change one text into another text, while preserving the original text's meaning. And by thinking of the problem faced by the originalist as a problem of translation, translation may teach something about what a practice of interpretive fidelity might be." Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165, 1173 (1993).
(63.) Jacob Neusner, Translation and Paraphrase: The Differences and Why They Matter, 27 HEBREW STUD. 26, 35 (1986).
(64.) Besides these texts' exegetical value as commentary lies a further issue for the political theorist to chew on. If the government that was created at the state ratifying conventions was the government as the public understood it, then the Dutch and German translations could be understood as not just commentaries but as direct delineations of the contours of government, along with the English-language text. Alternatively, if one understands the creation of the federal government as an act of the states' ceding sovereignty, the German translation would play a particularly significant role. Because the German translation was authorized by the government of Pennsylvania for the purpose of helping the people of Pennsylvania decide whether to become part of the new United States, then the powers Pennsylvania ceded are specified in both the English- and German-language documents it published.
(65.) See DAVID BELLOS, IS THAT A FISH IN YOUR EAR?: TRANSLATION AND THE MEANING OF EVERYTHING 107 (2011) (stating that "unlike ordinary readers, [translators] are not allowed to skip.").
(66.) Kesavan & Paulsen, supra note 57, at 1125-26.
(67.) See PHILLIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION 7 (1082); Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189, 1195-99 (1987).
(68.) Moreover, many constitutional clauses were not debated widely in the public. Kevasan & Paulsen, supra note 57, at 1164 (remarking that "many issues and clauses simply were not discussed at the state ratifying conventions").
(69.) See, e.g., Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747,748 (1999) ("By viewing the document's clauses in splendid isolation from each other--by reducing a single text to a jumble of disconnected clauses---readers may miss the significance of larger patterns of meaning at work.").
(70.) See Kesavan & Paulsen, supra note 57, at 1202.
(71.) See Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 GEO. WASH. L. REV. 358, 373 (2014). Maggs describes several of the challenges of using a dictionary to resolve the meaning of a term in the Constitution in the excerpt below:
First, the definition might come from the wrong kind of dictionary. A definition from an English language dictionary may be inapplicable to a constitutional term that has a specialized legal meaning, and, vice versa, a definition from a legal dictionary may be inapplicable to a constitutional term used in a non-specialized way. Second, even if the proper kind of dictionary is consulted, if the dictionary contains multiple definitions for the same word, some of these meanings ascribed to the word may not apply to the word as it is used in the particular context of the Constitution. Third, dictionary definitions do not always capture the correct meaning of words that form a part of a phrase or compound, such as "Vice President" or "declare war."
(72.) The translations may be particularly helpful for producing intratextualist interpretations of the Constitution. Intratextual interpretation involves "the interpreter tr[ying] to read a contested word or phrase that appears in the Constitution in light of another passage in the Constitution featuring the same (or a very similar) word or phrase." See Amar, supra note 69, at 748.
(73.) See Maggs, supra note 71, at 379 (observing that "... mistakes happen. Creating a dictionary is difficult work that requires detailed knowledge about a great many things. The lexicographer has very limited time to spend on any individual word, and it is easy to make a mistake, especially with difficult words").
(74.) See Lawrence M. Solan, The Interpretation of Multilingual Statutes by the European Court of Justice, 34 BROOK. J. INT'L L. 277,294-300 (2009). Others have argued the intuitive position that "adding language versions to a single body of law can only be a source of confusion." Lawrence M. Solan, Multilingualism and Morality in Statutory Interpretation, I LANGUAGE & L./LINGUAGEM E DIREITO 5, 7 (2014); Janny Leung, Statutory Interpretation in Multilingual Jurisdictions: Typology and Trends, 33 J. MULTILINGUAL & MULTICULTURAL DEV. 481 (2012).
(75.) Solan, The Interpretation of Multilingual Statutes, supra note 74, at 292-93.
(76.) See infra app.
(77.) 1 DIPPEL, supra note 1, at 84 n.1.
(78.) Cognates that appear in De Ronde's translation include "privilegie" for "privilege" (art. I, [section] 9, cl. 2); "bill van attainder" for "bill of attainder" and "ex post facto wet for "ex post facto law" (art. I, [section] 9, cl. 3); "publijke" for "public" and "judgen" for judges (art. II, [section] 2, cl. 2); "trial" for "trial" (art. III, [section] 2, cl. 2); and "corruptie van bloed" for "corruption of blood" (art. III, [section] 3, cl. 2). U.S. CONST. (Dutch), supra note 1.
(79.) U.S. CONST. (German), supra note 1; 1 DIPPEL, supra note 1, at 64 n.1.
(80.) 1 DIPPEL, supra note 1, at 64 n.1.
(82.) It the German translator used a dictionary, it was likely outdated at the time of translation since some of the words he chose were antiquated. The translator's choices were compared to: THE ENGLISH CELLARIUS; OR A DICTIONARY ENGLISH AND GERMAN CONTAINING THE ENGLISH WORDS IN THEIR ALPHABETICAL ORDER AND DERIVATION (1768); JOHN BARTHOLOMEW ROGLER, A DICTIONARY ENGLISH, GERMAN AND FRENCH CONTAINING NOT ONLY THE ENGLISH WORDS IN THEIR ALPHABETICAL ORDER, TOGETHER WITH THEIR SEVERAL SIGNIFICATIONS; BUT ALSO THEIR PROPER ACCENT, PHRASES, FIGURATIVE SPEECH, IDIOMS, AND PROVERBS, BY MR. CHRISTIAN LUDWIG NOW CAREFULLY REVISITED, CORRECTED, AND THROUGHOUT AUGMENTED WITH MORE THAN 12,000 WORDS, TAKEN OUT OF SAMUEL JOHNSON'S ENGLISH DICTIONARY AND OTHERS (3D ed., Leipzig, 1763); VOLLSTANDIGES WORTERBUCH DER ENGLISCHEN SPRACHE FUR DIE DEUTSCHEN NACH DEM NEUESTEN UND BESTEN FTULFSMITTTELN MIT RICHTIG BEZEICHNETER AUSSPRACHE EINES JEDEN WORTES BEARBEITET VON JOHANNES EBERS ... (Leipzig, Johann Gottlob Immanuel Breitkopf, Sohn und Compagnie 1794); A COMPLEAT ENGLISH-GERMAN, GERMAN-ENGLISH DICTIONARY THE FIRST VOLUME CONTAINING THE ENGLISH-GERMAN PART, HEREIN NOT ONLY THE WORDS TO BE MET WITH IN OTHER DICTIONARIES, MAY BE FOUND, BUT ALL EXPRESSIONS OF NATURAL HISTORY, HUSBANDRY, MARINE, MERCHANDISE; THE LAW AND ITS COURTS THE VULGAR TONGUE AND PROVINCIALISMS ARE INSERTED BY JOHN CHRISTIAN FLICK (Hamburg, 1803); A NEW ENGLISH-GERMAN AND GERMAN-ENGLISH DICTIONARY CONTAINING ALL THOESE WORDS IN GENERAL USE, DESIGNATING THE VARIOUS PARTS OF SPEECH IN BOTH LANGUAGE WITH THE GENDERS AND PLURALS OF THE GERMAN NOUNS. COMPETED FROM THE DICTIONARIES OF LLOYD, NOHDEN, FLUGEL, AND SPORSCHIL IN TWO VOLUMES (Philadelphia, George W. Mentz & Son 1835). The latter is a more recent dictionary, but since there was a custom to integrate earlier dictionaries of other authors into one's own dictionary, these later, more extensive, eclectic dictionaries are an important source for earlier use.
(83.) The translator uses the word "zween," which is the male variant of "two," which is only common in some regions of Germany. It could however also be a typo ("zween" instead of "zweien"), but the grammatical case and the gender match better in the case of "zween."
(84.) The translator's command of German is on display when using the correct genitive case; the correct position of the verb and auxiliary verb is also frequently chosen--something non-native speakers often have difficulty with.
(85.) Metaphrase is the word-for-word, line-for-line rendering of a text, as contrasted with paraphrase. See Lessig, supra note 62, at 1193-94 (citing WILLIAM FROST, DRYDEN AND THE ART OF TRANSLATION 1 (1955) (citations omitted)).
(86.) In the late 1700s, constitutions were a relatively new idea in Germany, as they wore mainly a product of the Enlightenment. Most of the German constitutions did not come into effect until the early nineteenth century, which might explain some of the translator's verbal clumsiness when describing a democratic legislative process. There was also a persistent tradition of using Latin instead of German technical terms in the legal context.
(87.) U.S. CONST. (German), supra note 1, art. I, [section] 8, cl. 4.
(88.) Id. art. I, [section] 8, cl. 11.
(89.) Id. art. I, [section] 9, cl. 3.
(90.) Id. art. III, [section] 3, cl. 2.
(91.) See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).
(92.) See Gonzales v. Raich. 545 U.S. 1 (2005).
(93.) See United States v. Morrison, 529 U.S. 598 (2000).
(94.) See United States v. Lopez, 514 U.S. 549 (1995).
(95.) See, e.g., Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101,112-30,132-35,139-40 (2001).
(96.) Id. at 146; see also id. at 112-30 (describing the meaning of commerce in a variety of sources from the Founding-era and later periods).
(97.) Id. at 146.
(98.) JACK BALKIN, LIVING ORIGINALISM 149 (2011).
(99.) Id. at 151.
(100.) "[D]as Commercium" or "das Kommerz" (the latter rather referring to covenants or contracts in general)--which denotes the traffic of goods in general, and therefore is often understood as synonymous to "Handel." However, 'Handel' appears to be used much less frequently. See GOETHE-WORTERBUCH, Hg. V. DER BERLIN-BRANDENBURGISCHEN AKADEMIE DER WISSENSCHAFTEN (1978) (discussing "Kommerz" and "Commercium"); see also 1 JOHANN CHRISTOPH ADELUNG, GRAMMATISCH-KRITISCHES WORTERBUCH DER HOCHDEUTSCHEN MUNDART MIT BESTANDIGER VERGLEICHUNG DER UBRIGEN MUNDARTEN, BESONDERS ABER DER OBERDEUTSCHEN. ZWEYTE, VERMEHRTE UND VERBESSERTE AUSGABE at col. 1342 (2d cd. 1970) (1793-1801).
(101.) According to Adelung, supra note 100, 'Handelschafl' was an antiquated term in the late eighteenth century. Instead, 'Handel' or 'Handlung' would be used. 'Handelschaft' is also a peculiar choice because even contemporary English-German dictionaries list 'Handel' or 'Handlung' as the translation for 'commerce.' See supra note 82.
(102.) JOHANN GEORG KRUENITZ: OECONOMISCHE ENCYCLOPADIE ODER ALLGEMEINES SYSTEM DER LAND-, HAUS- UND STAATS-WIRTHSCHAFT: IN ALPHABETISCHER ORDNUNG 1-242 (Berlin, Pauli 1785).
(103.) 1 ADELUNG, supra note 100.
(104.) In the original commentary, "jede thatige aussere Veranderung, Nahrung und Zeitliches Vermogen zu erwerben." 2 ADELUNG, supra note 100, col. 946.
(105.) Id. A different dictionary makes a distinction between 'Handel' and 'Handlung.' 'Handel' refers to selling or buying goods by merchants and hucksters whereas 'Handlung' is the term for the full field of the merchants' trade, also comprising the trade of bills. See generally S.J.E. STOSCH, PREDIGER ZU LUDERSDORF VERSUCH IN RICHTIGER BESTIMMUNG EINIGER GLEICHBEDEUTENDER WORTER DER DEUTSCHEN SPRACHE ZWEYTER THEIL. FRANKFURT AN DER ODER, VERLEGTS ANTON GOTTFRIED BRAUNS WITTWE (Wien, Eblen 1772).
(106.) 2 ADELUNG, supra note 100, col. 946. Kruenitz understands 'Handel' in its more specific meaning as the "business of the merchant." See KRUENITZ, supra note 102.
(107.) STOSCH, supra note 105.
(109.) 1 ADELUNG, supra note 1 (K). Stosch's treatment of the matter is also a sign of the terms' synonymy, as his task was to correctly tell words apart that were commonly used interchangeably. STOSCH, supra note 105.
(110.) All three versions of the cognate had two meanings: a broad one, meaning any interaction between people, be it social or directed to profit; and a narrow one, referring to the exchange of goods. See 1 ADELUNG, supra note 100; GOETHE-WORTERBUCH supra note 100.
(111.) Commerz' and 'Kommerz' wore not much in use, and were even more rarely invoked when talking about interactions in general. This usage only later became more frequent, probably due to their frequent usage as a title to denote more noble and distinguished people, as in "Commercien-rath" or "Commerz-rath." THE ENGLISH CELLARIUS, supra note 82, only lists "Handel", "Gewerbe" ("business") and Bekanntschaft ("acquaintance") as a translation of "commerce," but not "Commercium." See also GOETHE-WORTERBUCH, supra note 100 ("Kommerz" & "Commercium"); 1 ADELUNG, supra note 100, col. 1342 ("Commercium").
(112.) Ebers, supra note 82, at 23.
(113.) EGBERT BUYS, A COMPLEAT DICTIONARY ENGLISH AND DUTCH TO WHICH IS ADDED A GRAMMAR, FOR BOTH LANGUAGES, ORIGINALLY COMPILED BY WILLIAM SEWEL; BUT NOW, NOT ONLY REVIEWED, AND MORE THAN THE HALF PART AUGMENTED, YET ACCORDING TO THE MODERN SPELLING, ENTIRELY IMPROVED BY EGBERT BUYS (Amsterdam, Kornelis de Veer 1766).
(114.) Specifically, "reguleeren" means "[t]o make regular or orderly" as in "to regulate the course of a river," and also "to subject to legal decisions and rules." See Reguleeren, VAN DALE DICTIONARY, www.vandale.nl (last visited Oct. 13, 2015).
(115.) See Giles S. Rich, The "Exclusive Right" Since Aristotle, 14 Fed. Cir. B.J. 217, 224 (2004) ("[The clause] is two subjects--patents and copyrights--rolled into one[;] 'Science' is to be promoted by copyright and 'useful Arts' by patents."); Giles Sutherland Rich, My Favorite Things, 35 IDEA 1,2 (1994) (staling that "[i]t was quite clearly intended by the authors of the Constitution that copyright, not patents, was intended to promote science, and the province of rights granted to inventors respecting their 'Discoveries' was to promote the 'useful Arts'"); Lawrence B. Solum, Congress's Power to Promote the Progress of Science: Eldred v. Ashcroft, 36 LOY. L.A. L. REV. 1, 11-12 (20O2).
(116.) See Eldred v. Ashcroft, 537 U.S. 186, 243 (2003) (Breyer, J., dissenting) (citing EDWARD WALTERSCHEID, THE NATURE OF THE INTELLECTUAL PROPERTY CLAUSE: A STUDY IN HISTORICAL PERSPECTIVE 125-26 (2002)) (arguing the purpose of the Clause is to promote "the progress of 'Science'--by which word the Framers meant learning or knowledge"); Edward Lee, Technological Fair Use, 83 S. CAL. L. Rev. 797, 819 (2010) ("Intellectual property historians have contended that, at the time of the [f]raming, 'the Progress of Science' meant learning or knowledge (referring to the goal of copyright)[.]"); Rich, My Favorite Things, supra note 115, at 2.
(117.) See Margaret Chon, Postmodern "Progress": Reconsidering the Copyright and Patent Power, 43 DEPAUL L. REV. 97,115 (1993) ("The 'useful Arts,' what we would now call applied science or technology, were often distinguished from 'fine arts,' then as now denoting art that is more aesthetic than practical, such as poetry, painting, sculpture, and the like."); Lee, supra note 116, at 819; Peter S. Menell, Forty Years of Wondering in the Wilderness and No Closer to the Promised Land, 63 STAN. L. REV. 1289, 1293 (2011) (stating that "[although the Framers did not expressly define the term 'useful Arts,' usage at the time indicates that it related to trades utilizing what we would today call 'technology.' Several |Founding-era sources] support the textual inference that "useful Arts" concerned craft, trade, and industrial activities...." (internal citations omitted) and "[t]he phrase 'useful Arts' was understood in contradistinction to the eighteenth-century terms 'polite,' 'liberal,' and 'fine' arts--which related to aesthetic and philosophical pursuits."); see also Karl B. Lutz, Patents and Science: A Clarification of the Patent Clause of the U.S. Constitution, 18 Geo. WASH. L. REV. 50, 54 (1949).
(118.) Edward C. Waltcrscheid, To Promote the Progress of Science and Useful Arts: The Background and Origin of the Intellectual Property Clause of the United States Constitution, 2 J. INTELL. PROP. L. 1,52 (1994).
(119.) Lee, supra note 117, at 819.
(120.) RICHARD B. BERNSTEIN, THOMAS JEFFERSON 71 (2005).
(121.) See Edward C. Walterscheid, To Promote the Progress of Science and Useful Arts: The Anatomy of a Congressional Power, 43 IDEA 1, 2-3 (2002).
(122.) Madison wrote:
The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of the common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision on this point, by laws passed at the instance of Congress.
THE FEDERALIST No. 43 (James Madison). Madison's reference to copyright being a right at common law in Great Britain was likely a reference to Millar v. Taylor, (1769) 4 Burr. 2303 (K.B). The holding that there was a copyright at common law in England was reversed five years later in Donaldson v. Beckett. (1774) 1 Eng. Rep. 837 (H.L.). See Malla Pollack, The Owned Public Domain, 22 HASTINGS COMM./ENT. L.J. 265,284 n 92 (2000)
(123.) 537U.S. 186.
(124.) Id. at 208-09.
(125.) The German 'gewiss' presupposes, as the Latin 'certus,' that the time in some way is sure (or for the German, that the time is "known," which is the literal translation of "gewiss'). 'Gewiss,' as a participle that can both serve as an adverb or an adjective, stems from 'wissen,' ("to know"). In this regard, Grimm can state that only mathematics is gewiss (certain) as a science. Kruenitz also uses 'gewiss' in the meaning of 'steady,' as in requiring an artist to have a steady hand ("eine gewisse hand"). See Kruenitz, supra note 102.
(126.) Gary Lawson et al., Raiders of the Lost Clause: Excavating the Buried Foundations of the Necessary and Proper Clause, in The Origins OF the Necessary AND PROPER CLAUSE 1,1-2 (Gary Lawson et al. eds., 2010).
(127.) RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 155 (2004). The debates at the Philadelphia Convention provide little guidance to the Clause's meaning. The Necessary and Proper Clause was added to the Constitution by the "Committee on Detail" and never debated prior to the Convention's final adoption of the Constitution. Id.
(128.) Mark A. Graber, Unnecessary and Unintelligible, 12 CONST. COMMENTARY 167 168 (1995).
(129.) Robert Natelson argues the clause "tracks the language found in many Founding- and pre-Founding--era private agency instruments, which used 'necessary and proper or some equivalent to give fiduciary agents incidental powers beyond those explicitly derived in the instruments." Lawson et al" supra note 126, at 6. See generally Robert G. Natelson, The Legal Origins of the Necessary and Proper Clause, in The ORIGINS OF THE NECESSARY AND PROPER CLAUSE 52 (Gary Lawson et al. eds., 2010). Corporate charters also frequently contained "[c]lauses similar to the Necessary and Proper Clause ... to ensure that an organization with limited powers and purposes would not be frustrated in the essential conduct of its governmentally assigned activities but still would be confined to its assigned functions." Id. at 7. See generally Geoffrey P. Miller, The Corporate Law Background of the Necessary and Proper Clause, in The Origins OF THE Necessary and Proper Clause 144 (Gary Lawson et al. eds., 2010). Natelson concluded that, in agency instruments, a provision using the word 'necessary' "communicated the grant of incidental powers, but no more or less." Natelson, supra, at 76. British administrative law also contemplated "'incidental'" powers, as contrasted with '"principal"' powers. See William Baude, Rethinking the Federal Eminent Domain Power, 122 YALE L.J. 1738,1750 (2013). Empowering the agent "to act in a 'proper' manner would signal that the agent was bound by fiduciary responsibilities." Natelson, supra, at 80. In a governmental context, "the founders frequently used the term 'proper' to refer to the obligation of each government branch to respect its jurisdictional boundaries." Id. at 8990 (citing Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L.J. 267 (1993)). The records of the Constitutional Convention generally support the interpretation that the founders understood necessary and proper" by reference to its contemporaneous legal usage. Natelson, supra, at 93.
(130.) Natelson, supra note 129, at 108-09.
(131.) See BARNETT, supra note 127, at 158-66; Edmund Randolph, Opinion of Edmund Randolph, in LEGISLATIVE AND DOCUMENTARY HISTORY OF THE BANK OF THE UNITED STATES: INCLUDING THE ORIGINAL BANK OF NORTH AMERICA 89 (M. ST. Clair Clarke & D.A. Hall cds., Gales & Seaton 1832) (hereinafter LEGISLATIVE AND DOCUMENTARY HISTORY). Madison staled, "[The clause's] meaning must ... be limited to means necessary to the end, and incident to the nature of specified powers. The Founders' Constitution: James Madison, The Bank Bill, House of Representatives, UNTV. OF CHICAGO, http://press-pubs.uchicago.edu/founders/print_documents/al_8_18s9.html (last visited Oct. 16,2015). Jefferson similarly interpreted the Constitution to "allow only the means which are 'necessary,' not those which are merely convenient for effecting the enumerated powers.... [T]he [Constitution restrained [Congress] to ... those means, without which the grant of power would be nugatory." Thomas Jefferson, Opinion of Thomas Jefferson: Secretary of State, on the Same Subject (Feb. 15,1791), in LEGISLATIVE AND DOCUMENTARY HISTORY 93.
(132.) Alexander Hamilton, Opinion of Alexander Hamilton, on the Constitutionality of a National Bank, in LEGISLATIVE AND DOCUMENTARY HISTORY 97 (1832).
(133.) Marshall wrote:
[I]n the common affairs of the world, or in approved authors, we find that ['necessary'] frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable.
McCulloch v. Maryland, 17 U.S. 316,413-14 (1819).
(134.) Part of Marshall's rationale for holding the bank constitutional was that the power to charter a bank was not "a great substantive and independent power, which cannot be implied as incidental to other powers, or used as a means of executing them." McCulloch, 17 U.S. at 411. This conclusion was consistent with Randolph's claim that "[t]o be necessary is to be incidental." Randolph, supra note 131, at 89. William Baude has recently argued that the Necessary and Proper Clause permits the government to exercise incidental powers but not, in the language of Madison, 'great' powers. See Baude, supra note 129, at 1749-55.
(135.) See Barnett, supra note 127, at 184-89. Marshall wrote:
[S]ound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
McCulloch, 17 U.S. at 421.
(136.) "[N]othing" stems from the noun "Not," meaning "(strong) need" or "emergency."
(137.) 'Bekwaam' outpaces 'bequaam' 38 to 2 in appearances in Sewel's Dictionary, indicating perhaps De Ronde's old-fashioned tendencies. See Buys, supra note 113. His upbringing in Gelderland likely contributed to his non-standard spellings and regional vocabulary. The inventory of his estate indicates that De Ronde read almost exclusively 17th century Dutch religious texts. Rensselaer County Historical Society [New York] Rensselaer County Surrogate Court records, inventory of the estate of Lambert DeRonde. 16 February 1796.
(138.) U.S. CONST, art. I, [section] 10, cl. 2.
(139.) McCulloch, 17 U.S. at 388.
(140.) Douglas G. Smith, The Privileges and Immunities Clause of Article IV, Section 2: Precursor to Section I of the Fourteenth Amendment, 34 SAN DIEGO L. REV 809 890 (1997).
(141.) Id. See also Chester James Antieau, Paul's Perverted Privileges or the True Meaning of the Privileges and Immunities Clause of Article Four, 9 WM. & MARY L. REV. 1, 5 (1967). The substantive view is perhaps most famously associated with Corfield v. Coryell, No. 3,320, 6 F. Cas. 546 (C.C.E.D. Pa. 1823), written by Justice Bushrod Washington while riding circuit. Justice Washington's interpretation of the Privileges and Immunities Clause in Corfield v. Coryell "was long considered the authoritative interpretation of the Privileges and Immunities Clause." David R. Upham, Corfield v. Coryell and the Privileges and Immunities of American Citizenship, 83 TEX. L. REV. 1483, 1483 (2005). In Corfield, he claimed that the privileges and immunities of citizens of the several states were "those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign." Corfield, 6 F. Cas. at 551-52. Among the privileges and immunities of citizens of the several states were:
[p]rotection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety ... [t]he right of a citizen of one state to pass through, or to reside in any other state ... to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the stale....
Id. Many scholars understand Corfield as standing for the proposition that "the privileges and immunities protected under Article IV are not those graciously accorded to its citizens by a state of sojourn, but the rights, privileges and immunities of citizens of the several or United States--the natural, fundamental rights of free men everywhere." Chester James Antieau, Paul's Perverted Privileges or the True Meaning of the Privileges and Immunities Clause of Article Four, 9 WM.& MARY L. REV. 1,11 (1967). See, e.g., JAMES H. KETTNER, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870, at 259-60 (1978); Michael Conant, Antimonopoly Tradition Under the Ninth and Fourteenth Amendments: Slaughter-House Cases Re-Examined, 31 EMORY L.J. 785, 816-18 (1982); see also MICHAEL Kent CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS 123-24 (1986); LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW [SECTION] 6-34, at 529 (2d ed. 1988). For a further discussion of these authors and others' interpretation of the Privileges and Immunities Clause, see Upham, supra, at 1487, n.20. David Currie presents a different interpretation of Corfield--that the decision "concluded no more than that the clause allowed discrimination against an outsider if the right in question was not 'fundamental.'" David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789-1888, at 239, n.12 (1985). Despite Corfield's prominence, it was in fact one of several decisions that interpreted the Privileges and Immunities Clause in a variety of ways. See Upham, supra, at 1498-1510.
(142.) See Jon David Pheils, Defining the Scope of the Article Four Privileges and Immunities Clause, 54 U. CIN. L. Rev. 883, 884--85 (1986). Note the history and interpretation of the Privileges and Immunities Clause of Article Four of the U.S. Constitution differs strongly from the Privileges or Immunities Clause of the Fourteenth Amendment.
(143.) Natelson argues "'Privilege' was a legal term of art with a clear definition, elucidated by a large body of Anglo-American case law and commentary. The same was true, in [some] degree, of 'immunity.'" Robert G. Natelson, The Original Meaning of the Privileges and Immunities Clause, 43 GA. L. REV. 1117,1122 (2009). Natelson went on to criticize Justice Washington's view of Privileges and Immunities as failing to make sense on both its own terms and as a historical matter, and to note a variety of other interpretations of the clause: that the Clause protected a general right to travel, that the "privileges and immunities of citizenship" were the rights specifically enumerated in the Constitution, and that "privileges and immunities" were "the ancestral privileges of Englishmen--transferred to Americans through their colonial charters." Id. at 1126. See also David F. Forte & Ronald Rotunda, Privileges and Immunities Clause, in THE HERITAGE GUIDE TO THE CONSTITUTION 269 (Edwin Meese, III et al. eds., 2005) ("'Privileges and immunities' constituted a summary of ancient rights of Englishmen that the colonists fought to maintain during the struggle against the mother country."); Michael Conant, Antimonopoly Tradition Under the Ninth and Fourteenth Amendments: Slaughter-House Cases Re-Examined, 31 Emory L.J. 785, 809-15 (1982) (describing rights granted in colonial charters and claiming that these "privileges and immunities" amounted to British constitutional limitations). Natelson rejects these interpretations.
(144.) Natelson, supra note 143, at 1130-31.
(145.) Id. al 1132.
(146.) Id. at 1133. Natelson concludes that the terms 'immunity' and 'privilege' effectively referred to the same legal concept. Id. al 1133. "Because an immunity was a benefit, otherwise contrary to law, given to a person or place by special grant, it was a privilege. A privilege to act in a certain way necessarily implied an exemption from the normal consequences of so acting--hence, an immunity." Id. at 1134.
(147.) Id. at 1138-39.
(148.) BUYS, supra note 113.
(149.) See, e.g., Gabriel J. Chin, Why Senator John McCain Cannot Be President, 107 MICH. L. REV. FIRST IMPRESSIONS 1,2 (2008), http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1089 &context=mlr_fi. Much of the debate about John McCain concerned a statutory question of whether the Canal Zone was within the "limits and jurisdiction" of the United States, which reaches issues beyond the argument about the text of this clause.
(150.) See, e.g., Peter J. Spiro, McCain's Citizenship and Constitutional Method, 107 MICH. L. REV. FIRST IMPRESSIONS 42,43 (2008), http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1086 context=mlr_fi.
(151.) Chin, supra note 149, at 2.
(152.) See Chin, supra note 149, at 5.
(153.) Id. at 16.
(154.) See British Nationality Act, 1730,4 Geo. 2, c. 21; Laurence H. Tribe & Theodore B. Olson, Opinion Letter, Presidents and Citizenship, 2 J.L. 509, 510 (2012).
(155.) Tribe & Olson, supra note 154. See also Hennessey v. Richardson Drug Co., 189 U.S. 25,34-35 (1903).
(156.) Lawrence B. Solum, Commentary, Originalism and the Natural Born Citizen Clause, 107 MICH. L. REV. FIRST IMPRESSIONS 22, 23 (2008), http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1846&context=facpub.
(157.) Id. at 27.
(158.) 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 354 (Oxford, Clarendon 1765-1769), http://avalon.Iaw.yale.edu/subject_menus/blackstone.asp.
(159.) Solum, supra note 156, at 27. Other evidence cuts both ways. The first naturalization act of 1790 provided that "children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens." Id. at 29. On the one hand, this statute could be read as simply codifying the original meaning of the citizenship clause. On the other hand, it could be seen as selling a discretionary rule beyond that which a common law notion of "natural born citizen" or "natural born subject" would include. Id. Given the ambiguous evidence. Solum gestures towards the '"new originalist'" notion that there can be a point where "interpretation runs out" and sources beyond the Constitution's text and the original public meaning of the document must be referenced. See id. at 30.
(160.) Sewel's 1766 dictionary equates the status of "burger" to one who is free. For the English word "infranschise," he says, "(or to make a freeman) iemand burger maaaken." BUYS, supra note 113, at 386. A recent work exploring the history of idea of citizenship in the Netherlands is JOOST KLOEK & KARIN TILMANS, BURGER: EEN GESCHIEDENIS VAN HET BEGRIP "BURGER" IN DE NEDERLANDEN VAN DE MIDDELEEUWEN TOT DE 21STE EEUW (2002).
(161.) Cf. Jakobson, supra note 58, al 116 (stating that "languages differ essentially in what they must convey and not in what they may convey."). Whereas English only has one term for citizens, Dutch splits the concept into two terms--one for citizens at birth and another for naturalized citizens.
(162.) The so-called "vierter Stand" (fourth estate).
(163.) Adelung lists a number of different meanings of the term 'Burger." First, a Burger is defined as an inhabitant of a city whose inhabitants were allowed to partake in the freedom the town itself had (the word is traced back to "Burg" ("castle") which is understood to refer to any fortified place). Second, as the so-called "third estate," in contrast to the nobles and clergyman. Third, as a translation for the Latin "civis," in a republic or a comparable form of state. Finally--in a figurative meaning--anyone living in a town. 1 ADELUNG, supra note 100, at 1263(f).
(164.) ALLGEMEINE ENCYCLOPADIE DER WISSENSCHAFTEN UND KUNSTE IN ALPHABETISCHER FOLGE VON GENANNTEN SCHRIFTSTELLERN BEARBEITET (J.S. Ersch & J.G. Gruber eds., Leipzig, 1821).
(165.) Id. at 39 ("Jeder Burgersohn ist geborner Burger, fur Fremde aber ist die Burgerannahme mit grossen Schwierigkeiten verbunden").
(166.) Similar to the case in the Netherlands, the principle of naturalization sprung from a Roman legal custom already abolished during the middle ages where unfree inhabitants (serfs, etc.) were considered free "a year and a day" after they had arrived--leading to the saying "Stadtluft macht frei" (breathing city-air sets you free). However, unlike in Dutch, the German terminology does not differ between "Porter" and "Burger." There were, however, differences in practice: only the "gesworene Buerger" (the sworn citizen) had equal rights, and since naturalization usually was bound to the question of property, in the majority of cases only the second generation (that was then also inborn) would have reached such status.
(167.) If, at the time in Germany, the phrase "naturally born" was ever used outside the context of the United States Constitution, then it was either in a theological context (distinguishing the natural birth from the rebirth by faith, or contrasting the naturally born humans from the God-made Adam) or in a medical context (obstetrics).
(168.) See AMERICA IM JAHRE 1831 at 304 (C. N. Roding ed., Hamburg, Hoffman 1832) (summarizing the U.S. Constitution). A similar omission can be found in another contemporary work. BENJAMIN FRANKLIN, DR. BENJAMIN FRANKLIN'S LEBEN 424 (Weimar, Verlage des Landesindustric-Comptoirs 1818) (stating "[t]he American Certificate of Naturalization grants foreigners, who have been domestic there for seven years, all rights of inborn subjects.").
(169.) Helene Cooper & Jennifer Steinhauer, Bucking Senate, Obama Appoints Consumer Chief, N.Y. TIMES, Jan. 4,2012, http://www.nytimes.cpm/2012/01/05/us/politics/richard-cordray-named-consumer-chief-in-recess-appointment.html.
(171.) See Noel Canning v. NLRB, 705 F.3d 490,498 (D.C. Cir. 2013).
(172.) Cooper & Steinhauer, supra note 169.
(174.) NLRB v. Noel Canning, 134 S. Ct. 2550,2561 (2014).
(175.) Id. at 2565-66 ("[The framers] might have expected that the Senate would meet for a single session lasting at most half a year."). Id. at 2598 (Scalia, J., concurring) ("[T]he majority contends that the Clause's supposed purpose of keeping the wheels of government turning demands that we interpret the Clause to maintain its relevance in light of [new circumstances].").
(176.) Noel Canning, 705 F.3d at 503 (citing Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. REV. 1487,1498 (2005)).
(177.) Noel Canning, 134 S. Ct. at 2566.
(178.) Id. at 2592 (Scalia, J., concurring).
(179.) Id. at 2596 (Scalia, J., concurring).
(180.) "Session is the row of meetings until an Ajournement, therefore Session and Seance (Sitzung) are not to be confused." 1 DE LA CROIX, VERFASSUNG DER VORNEHMSTEN EUROPAISCHEN UND DER VEREINIGTEN AMERIKANISCHEN STAATEN 320 (1792). Adelung also understands "session" not as a single meeting, but as longer period ("Sitzungsperiode"), whereas the single meeting, in contrast, is called "seance." See ADELUNG, supra note 100. Our translator seems to follow this distinction by translating "Sitzung" as "session." An interpretative decision on what is meant by "Recess" is however avoided by using a verb instead of a noun, thereby creating an ambivalence, since "to sit" is the verb form both of "seance" and "session."
(181.) U.S. Const. (German), supra note 1, art. II, [section] 3.
(182.) "Zu" should be "ze" ("they"). There is no word 'zu' in Dutch.
(183.) 6 NATHAN DANE, DIGEST OF AMERICAN LAW 715 (Boston, Cummings, Hilliard & Co. 1823).
(184.) See Will Tress, Unintended Collateral Consequences: Defining Felony in the Early American Republic, 57 CLEV. ST. L. REV. 461,463-65 (2009).
(185.) 6 DANE, supra note 183, at 715.
(186.) 4 BLACKSTONE, supra note 158, at 94. See also BLACK'S LAW DICTIONARY (9th ed. 2009) (defining 'felony, at common law, as "an offense for which conviction results in forfeiture of the defendant's lands or goods (or both) to the Crown, regardless of whether any capital or other punishment is mandated.").
(187.) A cognate of 'Hauptverbrechen,' 'Kapital-Verbrechen' might still be found, especially as a layman's term. Another term frequently used today is 'Haupttat,' also translating to "capital crime," but which is presently used to distinguish the crime of the main perpetrator from that of the accessory.
(188.) The Latin "res capitalis" and "pecccatum mortale" would usually translate as "Haupt[-]" or "Capital-Verbrechen."
(189.) For example, the "Constituito Criminalis Carolina" of 1532 was colloquially called Halsgerichtsordnung" ("throat criminal code") since the usual punishment in the Carolina was death.
(190.) A key change in Germany was to render punishment that was not only adequate to the crime committed, but also appropriate in light of a perpetrator's individual level of guilt. See generally Ernst Christian Westphal, Das Criminalrecht (Leipzig, 1785).
(191.) See 2 Joachim Heinrich Campe, Worterbuch der Deutschen Sprache 572 (Braunschweig, Schulbuchhandlung 1808) ("Hauptverrath").
(192.) 2 ADELUNG, supra note 100, at 1019 ("Haupttungend").
(193.) CAMPE, supra note 191 ("Hauptverbrechen").
(194.) For example, in Bavaria in 1856, the question arose of whether "capital crimes" in the Bavarian Criminal Code of 1813 meant only those crimes that were punished with death. See BLATTER FUR RECHTSANWENDUNG ZUNACHST IN BAYERN (Johann Adam Seuffert & Ernst August Seuffert eds., Erlangen, Palm & Enke 1856). At first glance, this debate might point against the modern use. However, the text presumes that people (already) used the term in the more modern sense of "severe crime"--this being the reason why there was need for the debate at all.
(195.) JOHANN JOACHIM ESCHENBURG, HANDBUCH DER KLASSISCHEN LITERATUR (Berlin, Nicolai 1783). Eschenburg's subject is Greek antiquity, so it does not say much about the use of "Hauptverbrechen" in a more modern legal context. Nevertheless it is significant that the author can use the term in such context (meaning for a crime that was not generally punished with death) without being contradictory.
(196.) See GESEZE DER REPUBLIK PENNSYLVANIEN, IN UBERSEZTEN AUSZUGEN. ENTHALTEND DIE BRAUCHBAREN OFFENTLICHEN GESEZE BIS ZU DEM JAHR 1805, EINSCHLIESSLICH: SO WIE AUCH DIE REGIERUNGS-VERFASSUNGEN DER VEREINIGTEN STAATEN UND VON PENNSYLVANIEN, HRG. UNDER AUTHORITAT EINES GESEZES DER GENERAL-ASSEMBLY, PASSIRT IM APRIL, 1805, at xx-xxii (Reading, Gedruckt und Hcrausgegeben von Johann Ritter und Carl Kessler 1807), http://modernconstitutions.de/US-00-1787-09-17-de-a-1789-l-e.html. Two other nineteenth century translators of the U.S. Constitution into German completely omit the word "capital" in their translations. See 1 DIPPEL, supra note 1, at 84 n.6.
(197.) 4 BLACKSTONE, supra note 158, at 75.
(198.) See Gary L. McDowell, "High Crimes and Misdemeanors": Recovering the Intentions of the Founders, 67 GEO. WASH. L. Rev. 626, 638 (1999) (citing 4 BLACKSTONE, supra note 158, at 75,203).
(199.) RAOUL BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS 64 (1974).
(200.) Id. at 71-73.
(201.) Thomas I. Emerson, Impeachment: The Constitutional Problems, 74 COLUM. L. REV. 131,133 (1974) (reviewing BERGER, supra note 199).
(202.) MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS 104-05 (2d ed. 2000). "[D]elegates to stale ratification conventions often referred to impeachable offenses as 'great' offenses, and ... frequently spoke of how impeachment should apply if the official 'deviates from his duty' or if he 'dare to abuse the powers vested in him by the people.'" Id. (some internal quotation marks omitted).
(203.) See 1 ADELUNG, supra note 100 (defining 'Hochverrath' as a treason directed against the state or its head).
(204.) A legal example is again the case of treason, where "high treason" (Hoch-verrat) and "capital treason" (Haupt-Verrath) were understood to be synonymous. See id. ("Haupt-verrath").
(205.) See 2 CAMPE, supra note 191, at 572 ("Haupt-verrath").
(206.) 2 CAMPE, supra note 191, at 753 ("Hochverbrechen"). Campe also lists both possible meanings for 'hochverrat' (high treason). See id.
(207.) Kruenitz remarks that "the English" make a distinction between "high" and "petty treason." See Kruenitz, supra note 102 ("Hochverrath").
(208.) John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution 126 (2013).
(209.) See supra note 78 and accompanying text.
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|Title Annotation:||IV. The Translations B. The Progress Clause through V. Conclusion, with footnotes, p. 26-53|
|Author:||Mulligan, Christina; Douma, Michael; Lind, Hans; Quinn, Brian (American writer)|
|Date:||Mar 22, 2016|
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