The Historical Case for Constitutional “Concepts”

Glenn E. Chappell*

The concepts/conceptions dichotomy is prominent in both the philosophy of language and the field of constitutional interpretation. It is most prominently illustrated through the provisions in the Constitution that contain broad, open-ended moral language. Those who hold the “conceptions” view believe that the legal content of those provisions includes both abstract moral concepts and its communicators’ subjective beliefs about, or conceptions of, how those concepts should apply. Under this view, the judge’s role is mostly empirical: he is tasked with examining historical evidence to ascertain those conceptions, which in turn supply applicational criteria by which he can decide specific cases. Alternatively, those who hold the “concepts,” or conceptual, view believe that the Constitution’s language directs the reader to objective moral concepts only; hence, its legal content does not contain any particular person’s or group of persons’ conceptions of those concepts. Thus, under this view, the judge’s task is mostly analytical: he must attempt to analyze the concepts to ascertain their defining criteria and develop applicational criteria from that analysis.

Through a focused study of the interpretive methods of William Cushing, James Madison, and lawmakers in the Virginia House of Delegates, this article demonstrates that this debate has existed since at least the founding era, and that the above-named founding-era authorities held a conceptual view of the Constitution’s language, as evidenced by the logic-driven, as opposed to historical, research-driven, mode of construction they employed to apply the Constitution’s provisions to particular cases. Specifically, they analyzed the Constitution’s text, structure, and moral authority to develop an American conception of the concept at issue—a conception wholly unconcerned with the subjective beliefs of any particular person or polity as to how the concept should apply. Finally, this article sets forth a preliminary sketch of the conceptual approach’s normative claim. It concludes that the conceptual approach taken by these authorities better respects the constitutional text, the Rule of Law, and the ideal of objectivity in law than those that seek to derive legal content from the conceptions of past actors.

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* Law Clerk to the Honorable Anthony J. Trenga, United States District Court for the Eastern District of Virginia, 2018–2019; Law Clerk to the Honorable Gerald Bard Tjoflat, United States Court of Appeals for the Eleventh Circuit, 2017–2018. J.D., 2017, Duke University School of Law; B.A., 2011, Saint Leo University. The views expressed in this article are my own and do not necessarily reflect those of my employers. I owe special gratitude to Ryan Pitts for his generous contributions to this article, which include hours of proofreading, editing, and challenging discussion, and to Judge Tjoflat for his mentorship and encouragement. I would also like to thank Cory Fleming, Spencer Hughes, and Alexander Flynn Kasnetz for their helpful suggestions and edits, and my family for their unending patience and support. Finally, I would like to thank the editors of the University of Richmond Law Review for their superb, indispensable work in preparing this article for publication.

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