Words, meanings, and change

Have a look at this sentence from a letter James Madison wrote to George Washington, dated April 16, 1787:

"The great desideratum which has not yet been found for Republican Governments seems to be some disinterested & dispassionate umpire in disputes between different passions & interests in the State."

There are three words in that sentence that deserve comment. One is desideratum; how often do you run into that? I had to look it up; it means "something desired as essential." I don't think I've ever used it in a sentence.

The second word to discuss is disinterested. In The Radicalism of the American Revolution (1991), Professor Gordon S. Wood makes an important point:

"Republicanism... put an enormous burden on individuals. They were expected to suppress their private wants and interests and develop disinterestedness--the term the eighteenth century most often used as a synonym for civic virtue: it better conveyed the increasing threats from interests that virtue now faced. Dr. Johnson [in the first English dictionary] defined disinterest as being 'superior to regard of private advantage; not influenced by private profit.' We today have lost most of this older meaning. Even some educated people now use 'disinterested' as a synonym for 'uninterested,' meaning indifferent or unconcerned." (pp. 104-105).

If you didn't know the sense in which Madison used "disinterested," you might misunderstand his meaning.

Finally in the trio of words I call your attention to is "umpire." Talk about conveying a different meaning today. When you hear the word umpire--even if you're not a baseball fan--isn't the first thing that pops into your head a guy with a mask and a chest protector bellowing "STEEEERIKE THREE!" And you probably even know that there are three other umpires in a big league game, but somehow your first mental image isn't the man in blue at first, second, or third base, is it? It's the guy crouching behind home plate.

Merriam-Webster's online dictionary informs us that umpire originated in the fifteenth century. In other words, it was around for about four hundred years before it got the baseball oriented definition we regard as most familiar today. Webster lists the sports meaning second after "one having authority to decide finally a controversy or question between parties" which is obviously what Madison meant. We can deduce from this how easily the word came to be used in baseball, as the umpires there most certainly decide a question between parties.

But when you read the sentence Madison wrote, you have to remember that neither he nor Washington ever, even once in their lives, heard "umpire" and thought of some guy standing behind home plate at Wrigley Field, Turner Field, or Fenway Park. Baseball hadn't been invented yet. Nor can we in our heads truly recreate that experience--that is, hearing "umpire" and thinking of Webster's older, more general one instead of its newer, sports specific one.

And since Madison had a lot to do with the writing of the Constitution, it's important to acknowledge that even if you take the attitude that the Constitution should be interpreted literally, as it was written, there is always that little "umpire" problem. Some words just meant different things in 1787 than they did today.

Professor Randy Barnett made a very big deal of this in his 2004 book Restoring the Lost Constitution: The Presumption of Liberty. He took around a dozen pages (278-291) to discuss what the term commerce meant to the folks back in 1787. That's significant in the area of Constitutional interpretation because a whole lot of what Congress does they say they can do because of the power granted in Article I, section 8 "To regulate Commerce with Foreign Nations, and among the several States, and with the Indian tribes." Even things that seem as distantly related to commerce as the 1964 Civil Rights Act or the Animal Welfare Act are passed pursuant to a congressional finding of fact that somehow interstate commerce is involved. Here's how it's phrased in the opening salvo of the Animal Welfare Act:

"The Congress finds that animals and activities which are regulated under this chapter are either in interstate or foreign commerce or substantially affect such commerce or the free flow thereof, and that regulation of animals and activities as provided in this chapter is necessary to prevent and eliminate burdens upon such commerce and to effectively regulate such commerce..." (7 USC sec. 2131).

Probably the only thing less common than a sentence with the word "desideratum" is a sentence with the word "commerce" used three times.

Anyway, if President Obama is successful at pushing through a government health care plan, the final legislation will no doubt be proceeded with some mutterings about how this relates to commerce, because Congress has those powers and only those powers granted it by the Constitution, so they have to locate authority for universal health care somewhere, and you know it's going to be the good old Commerce Clause.

In Randy Barnett's book, he takes great issue with this, the notion that Congress can hop on the Commerce Clause and ride it anywhere. He shows--pretty convincingly, actually--that in the founding era commerce meant only "to trade or exchange" and that this is all Madison and his colleagues meant when they put the word into the Constitution. Using commerce to also embrace activities of manufacturing, agriculture--or health insurance--is a gross expansion of that original meaning. In that sense, what has happened with the word commerce is the opposite of what's become of umpire. While the most familiar meaning of commerce has expanded, today's most common definition of umpire represents a contraction of the potential meanings of the word.

But I'm not sure in the area of constitutional interpretation that we should look for fixed meanings of words in 1787. Or, for that matter, in 1868 when the Fourteenth Amendment was ratified. In ruling school segregation unconstitutional in Brown v. Board of Education, Chief Justice Earl Warren wrote:

"The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among "all persons born or naturalized in the United States." Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty."

True. But looking at it in a somewhat different vein, so what if even a majority of people in the nineteenth century looked at the phrase "No State... shall deprive any person within its jurisdiction the equal protection of the laws," and thought that sending black children to separate schools than white ones was not running afoul of that command? That doesn't mean that by 1954 the very same words "equal protection of the law" couldn't have come to mean a quite different thing, making school segregation unconstitutional.

I think whenever the debate centers around whether we have a "living" Constitution or not, it's all too easy to forget that we do, unquestionably, have a Constitution that is written. It's composed of words.

And words change. So the same text that existed in 1787 might conjure up different meanings in 2009.