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Should We Focus on Individual Words or Overall Context in the Constitution?

Professor Michael McConnell discusses how the historical context of phrases in the Constitution helps to determine their meaning. Individual words can be difficult to interpret in isolation so they need to be examined in conjunction with the full phrase that they comprise. The phrases themselves provide the most information when they are examined alongside historical documents that elucidate the original meaning as understood by the authors of the Constitution or its Amendments. https://youtube.com/watch?v=eUcG3JXfbNA


I think when trying to understand the Constitution as it was written, the most important reference point is the historical context. For example, the Privileges and Immunities clause of the 14th Amendment. You might look at that and say, well, what do they mean by privilege? What do they mean by an immunity? Why do they use the word “or” in between those two words? That's one thing you might do, but another thing you might do is ask how the phrase “privileges and immunities” fit into the political, and Constitutional, and legal discourse of the day. On the other hand, just a somewhat contrary example, I think that as simple a word as the word "the" can make a huge difference for Constitutional interpretation. The First Amendment reads that, you know, Congress shall make no law abridging THE freedom of speech. It doesn't say Congress shall make no law abridging freedom of speech. It says THE freedom of speech, which is to say, the legal understanding of freedom of speech which actually existed at the time of the adoption of the First Amendment. They believed that there were certain categories of laws about speech that were nonetheless permissible, such things as fighting words, obscenity, libel, crime-facilitating speech, and so forth, that as the Supreme Court said, have never been regarded as protected by the Amendment. So all of that, I think, is packed into that little word “the,” which so many people leave out when thinking about the First Amendment. So in a sense, what we're doing is looking very carefully at the words of the Constitution. But more importantly than that, I think we're looking at the phrases of the Constitution. The full sentences and clauses of the Constitution, it's very rare that individual words out of context tell us much about the meaning, that the best evidence is to see what was being said about the provision at the time it was adopted, and then to generalize from it.

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