Why Constitutional Lawyers Need to Know Latin

Note from the Editor:

This article discusses the role of the Latin language and other classical studies in the thought and work of the Founders, and it argues that sound constitutional interpretation requires an understanding of Latin.

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In thinking in eighteenth-century English . . . a rudimentary knowledge of Latin is highly useful; after all, every educated Englishman and American knew Latin, English words were generally closer in meaning to their Latin originals than they are today, and sometimes . . . it is apparent that an author is accustomed to formulating his thoughts in Latin.

—Forrest McDonald[1]

Forrest McDonald was arguably the twentieth century’s greatest constitutional historian. But his case for Latin competency among those seeking to understand the Constitution is, if anything, understated.

A popular half-truth is that the framers wrote the Constitution in straightforward language that everyone can understand. If by “everyone” we mean the framers’ immediate audience—the politically-involved public of their own day—the claim is largely true. If by “everyone” we mean today’s public, or even today’s law professors and judges, the statement is entirely untrue.

The reason the Constitution’s language was so readily understandable to the founding generation but is obscure to the modern American public is that we lack much of the knowledge they possessed. Involved members of the founding generation knew, or could readily learn about, then-prevailing political practices.[2] They were broadly aware of recent developments in America and Europe, and of the historical background of those events. They were one of the most legally sophisticated generations ever, as Edmund Burke observed in a famous parliamentary speech.[3] Moreover, every boy (and some girls[4]) with educational aspirations studied the Greco-Roman classics from an early age.[5] They were imbued with classical literature, poetry, history, philosophy, fable, and myth.[6] Central to the curriculum was the Latin language, and Latin competency also opened the doors to the scholarship of the Medieval and early-modern worlds. During the founding era, Latin was, in a very real sense, America’s second language. Despite its importance for understanding our nation’s founding and Constitution, none of this knowledge—of eighteenth century practices and law or of Latin and classical studies—is prevalent among the voting public now. It is also rare among the lawyers, law professors, and judges who interpret the Constitution for the rest of us.

Later essays in this series will discuss eighteenth century law and political practice as tools of constitutional interpretation. This essay focuses on why the Latin language and, to some extent, its associated classical studies are indispensable tools for understanding the Constitution. I do not argue that everyone should study Latin, but I do contend that one should acquire a reasonable competency in the language before purporting to offer learned commentary on the Constitution. Note that this essay focuses on the value of the language to constitutional interpretation; it does not enter the long-standing debate over the extent of Latin’s pedagogical benefits.[7]

I. Latin and the Founders’ Modes of Thought

Knowledge of Latin is indispensable to a full understanding of the Founders’ literary references and modes of thought. Consider, by way of illustration, Gouverneur Morris, a particularly influential framer and the Constitution’s final draftsman. Morris may have been less dedicated to the classics than Founders such as John Dickinson, Thomas Jefferson, and James Madison,[8] but his early education revolved around the usual classical foci. When attending King’s College (now Columbia University), his two favorite subjects were mathematics and Latin.[9]

Morris’ writings reflect his classical training. For example, a favorite phrase of his was Medio tutissimus ibis.[10] It means, approximately, “You will be safest if you go down the middle.” It was the admonition of the sun god Apollo to his natural son, as reported in the Roman poet Ovid’s delightful mock-epic, the Metamorphoses.[11] Morris’ repetition of it communicates something of his belief that moderation is a virtue. By knowing Morris’ commitment to moderation—a commitment held in common with many other Founders[12]—we more readily see that he and his Constitutional Convention colleagues balanced competing values rather than (as some modern commentators have suggested[13]) affording primacy to any single value.

Morris’ most famous written production seems also to have been affected by his classical training. When drafting the final Constitution for the convention’s Committee of Style and Arrangement, Morris composed the Preamble in a special way.[14] Rather than adopt the pedestrian prose typical of prior constitutional documents,[15] he selected a tightly organized metric style that, while it was adapted to the English language, carried emotional effects reminiscent of classical oratory and of classical heroic (epic) meter.[16] Morris’ composition, and his colleagues’ decision to accept it, communicated their feelings about the new Constitution’s grandeur and potential durability.[17] Morris was far from the only contemporaneous author to craft prose in that way.[18]

Any reader of The Federalist and other ratification-era literature will note the use of classical pseudonyms in pamphlets and articles about the Constitution: the names employed included Publius, Cato, Caesar, Agrippa, Crassus, Brutus, Fabius, and many more[19]—each chosen with the intent to communicate information about the author, and his or her values, to the participating public.

II. Latin and the Law of the Founders

The Constitution is a legal document, designed to operate and be construed in the context of eighteenth century jurisprudence. Latin competency is an absolute requirement for full access to that jurisprudence. This is obviously true of the Roman civil law, which was influential in eighteenth century chancery courts and written almost entirely in Latin.[20] It was also true of native Anglo-American jurisprudence. English law had been recorded originally in a mixture of Latin and Norman French. By the eighteenth century, French had been abandoned, but Latin remained prominent. Latin was prominent not merely in canons of construction and other maxims, most of which have since been translated.[21] Latin headings and excerpts adorned English case reporters, parliamentary journals, and other legal texts.[22] Long and frequent passages of unrendered Latin filled English case reporters, and many of those passages have never been translated.

For example, the Case of Mixed [or Mixt] Money,[23] decided in 1604 by the Privy Council, is a “must-read” for anyone who wishes to capture the meaning of Constitution’s Coinage Clause.[24] The case was originally reported in French, with extensive Latin insertions, by John Davies. In 1762, however, an English translation was published,[25] and it accordingly became available to the founding generation. But only the French was rendered into English, so a very large portion of this translation—approximately 1,200 of 8,200 words—remained in Latin. There was no need to translate the Latin for contemporaneous readers, so it wasn’t done.

Even today, you cannot read large portions of the Case of Mixed Money—or lengthy passages in many other precedents important to the Founders—unless you can read Latin. For that matter, you face the same problem if you venture into many of their secondary legal texts. The Institutes of Edward Coke, for example, is replete with untranslated Latin.[26]

III. Latin as a Key to Constitutional English

Perhaps the greatest handicap faced by modern constitutional interpreters who don’t know Latin is, as Professor McDonald suggested, the risk—or rather the certainty—of misunderstanding the Constitution’s English. One can easily look up translations of isolated phrases such as habeas corpus or ex post facto. But without knowing Latin, one may never detect unsuspected signals lurking in seemingly ordinary words.

This handicap can afflict even the great. Few legal historians have been more celebrated than Leonard W. Levy. Yet even Professor Levy fell into the trap of arguing that the framers intended the Senate to direct foreign policy because founding-era writings referred to the president as a foreign affairs “agent.”[27] Professor Levy apparently was unaware that “agent” then usually carried the Latinate meaning of “one who acts” (from agere, to do or drive), rather than denoting a representative or subordinate.[28] Even writers careful to check etymologies may make mistakes if they are unaware of the linguistic context.[29]

The Constitution and the records of its adoption are fairly loaded with English words that may be misconstrued in this way without a background understanding of Latin. Following are four examples from the constitutional text.[30]

A. Perfect

This word in the Preamble has caused some to wonder how a union could be made “more perfect,” since the modern definition of the word is “without flaw.” Nothing can be more perfect if it is already perfect. The answer is that during the founding era, “perfect” usually meant “complete” (from perficere, to finish). The Preamble thereby announced that new union was to be more complete than that created by the Articles of Confederation.

B. Privileges

The unamended Constitution employs variants of this word in two other locations,[31] but its meaning in the Privileges and Immunities Clause[32] is the one most thoroughly misunderstood. To a significant extent, the misunderstanding flows from unquestioning acceptance of Justice Bushrod Washington’s unfortunate dictum issued on circuit in the 1823 case of Corfield v. Coryell.[33] That dictum placed within the scope of “Privileges and Immunities” rights the Founders thought derived from God and nature—life, liberty, property, the right to travel, and the like.

But that is not how eighteenth century legal documents used the word “privilege” or its mirror image “immunities.” In keeping with its Latin predecessor privilegium, a privilege was literally a “private law.” It was an exception to otherwise prevailing rules that government had carved out for the benefit of citizens generally or for some people and not others. In other words, a privilege was a government-granted entitlement; privileges did not encompass natural rights as Justice Washington mistakenly thought. It is unclear why Justice Washington made the error he did, but his dictum seems to have been off-the-cuff, and no other member of the Supreme Court subscribed to it. Whatever the reason for Justice Washington’s mistake, a researcher familiar with the Latin roots of “privilege” is likely to be sufficiently skeptical to consult the founding-era legal texts that defined the word correctly.[34]

C. Necessary

The most important appearance of this word in the unamended Constitution is in the Necessary and Proper Clause.[35] Modern readers struggle over it, and are apt to be confused by Thomas Jefferson’s untenable claim that “necessary” means absolutely requisite.[36] Admittedly, it requires more than Latin to know that, in eighteenth century legal documents, “necessary” was a common way of conveying incidence: To describe a power as “necessary” to a principal power was to say it was incidental to the principal, in the way that the power to “lay and collect taxes” implies the power to hire tax collectors.[37] It is easier to understand how “necessary” can have that meaning if you know that in Latin your necessarius (if male) or necessaria (if female) is your relative or close associate.

D. Application

This word appears in the Guarantee Clause of Article IV.[38] It also appears in Article V, where it describes a state legislature’s resolution to Congress for a convention for proposing amendments.[39] Today when we use “application” in the sense of communication, we usually mean that a person in a perceived inferior position is asking for something from a person in a perceived superior position. Thus, we speak of an “application” for a job or for admission to a law school. This usage has induced some writers to refer to an Article V application as a “petition.”[40]

In the Founders’ Latinate English, though, “application” usually did not have the inferior-to-superior connotation. It still carried connotations from the Latin applicatio (which in turn came from the verb applicere, to join, fasten, attach to), which usually denoted the process of connecting one thing to another—much as we now employ the phrase “apply a bandage.” In eighteenth century English, an application could be a communication from an inferior to a superior, but it might just as well run between equals or from a superior to an inferior. So when the Constitution uses the word “application,” it is not referring to a request for a favor. On the contrary, Article V’s use of the future imperative (“Congress . . . shall call”) tells us that a legislative application for an amendments convention is better understood as a conditional command.[41]

IV. Conclusion

Among the many misguided public policies that sever us from our cultural roots, perhaps none has been as perniciously effective as the decision of so many schools to deny Latin study to students who want or need it. As a result, even lawyers with the best of professional credentials commonly embark on careers as constitutional commentators without the requisite tools. For one not fortunate enough to study Latin while young, rectifying the deficiency is not easily accomplished. Acquiring Latin competency requires thousands of hours of hard work, rendered harder the older one becomes.[42] For those who wish to be accurate constitutional analysts, I see no remedy over the short term other than laboring at the task for as long as it takes. One long-term solution should be obvious: Institutions of higher learning, including law schools, should insist on at least modest Latin competency among faculty teaching constitutional subjects or offering constitutional commentary. Trying to do a job without the proper tools can be ineffective, and may promulgate or perpetuate mistakes as to what the Constitution really means.