Now it’s time to start looking at the sentences and claims in Dobbs. I’m going to take each sentence, identify the claim or claims made in that sentence, and sort them into three categories: true, false, or undetermined.

Paragraph 1 of 5

Sentence 1 of 2

Constitutional analysis must begin with “the language of the instrument,” Gibbons v. Ogden, 9 Wheat. 1, 186–189 (1824), which offers a “fixed standard” for ascertaining what our founding document means, 1 J. Story, Commentaries on the Constitution of the United States §399, p. 383 (1833).

This sentence contains two claims:

1. “Constitutional analysis must begin with ‘the language of the instrument’.”
2. “’The language of the instrument’ . . . offers a ‘fixed standard’ for ascertaining what our founding document means.”

First, the claim that “Constitutional analysis must begin with ‘the language of the instrument,’ just means that reading the Constitution is the first step in understanding the Constitution. There’s nothing controversial in that and I’d be interested to hear if anyone argues otherwise. I’m always open to being corrected, but but this claim seems to be true.

Here is the relevant passage, which begins on what is labeled Page 22 U. S. 187 in Gibbons:

As preliminary to the very able discussions of the Constitution which we have heard from the bar, and as having some influence on its construction, reference has been made to the political situation of these States anterior to its formation. It has been said that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. But, when these allied sovereigns converted their league into a government, when they converted their Congress of Ambassadors, deputed to deliberate on their common concerns and to recommend measures of general utility, into a Legislature, empowered to enact laws on the most interesting subjects, the whole character in which the States appear underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected.

This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized “to make all laws which shall be necessary and proper” for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred, nor is there one sentence in the Constitution which has been pointed out by the gentlemen of the bar or which we have been able to discern that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do gentlemen mean by a “strict construction?” If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support or some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction which would cripple the government and render it unequal to the object for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded. As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. We know of no reason for excluding this rule from the present case. The grant does not convey power which might be beneficial to the grantor if retained by himself, or which can enure solely to the benefit of the grantee, but is an investment of power for the general advantage, in the hands of agents selected for that purpose, which power can never be exercised by the people themselves, but must be placed in the hands of agents or lie dormant. We know of no rule for construing the extent of such powers other than is given by the language of the instrument which confers them, taken in connexion with the purposes for which they were conferred.

Wordy, but yeah. That’s what it says.

The second claim is that “’the language of the instrument’ . . . offers a ‘fixed standard’ for ascertaining what our founding document means.” There is a complication in the phrase “fixed standard.” The words are fixed, but we argue about the meanings of the words in the Constitution all the time, and I don’t think anybody who’s thought about the Constitution for more than a couple seconds would disagree. The court system exists to interpret what the Constitution says. The words on the page don’t change, but somehow in 234 years the precise meanings of those words defy “fixed” definition.

Here’s the passage as it occurs in the Commentaries:

§ 399. Let us, then, endeavour to ascertain, what are the true rules of interpretation applicable to the constitution; so that we may have some fixed standard, by which to measure its powers, and limit its prohibitions, and guard its obligations, and enforce its securities of our rights and liberties.

It appears to me that the source doesn’t make or support the claim in Dobbs. This passage seems to suggest that the “fixed standard” would come from whatever “true rules of interpretation” are “ascertained.” In other words, the document itself isn’t the standard–the interpretation of the document is.

So that leads to a different possibility for what the second claim is. If, instead of “the language of the instrument,” the second clause of the sentence is intended to modify “analysis,” the claim in Dobbs lines up better with the claim in Story. That would be a gnarly sentence, though, and I feel like the Justices and their minions know better than that.

It also doesn’t really matter. Either Story makes a strong case to support that claim, in which case more exploration of his Commentaries is in order, or he doesn’t, in which case this is just an appeal to authority.

At any rate, I don’t have an extensive knowledge of the law, but maybe someone who does (a “lawist,” I think they’re called) can straighten me out on that.

The first claim is true.

“Constitutional analysis must begin with ‘the language of the instrument’.”

The second claim is undetermined.

“’The language of the instrument’ . . . offers a ‘fixed standard’ for ascertaining what our founding document means.”