"The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged."
-- Martin v. Hunter's Lessee, 14 U.S. 304, 326 (1816)
Not long ago I put up a post here noting the extreme rarity of the reflexive use of the verb "to grant," both in the 18th century and now. (This in the context of whether the president can "grant" a pardon to himself.) I contrasted the verb "to grant" with the verb "to give," which does have a common reflexive usage. I believe we'd all agree, for example, that President Trump can "give himself" credit. (In fact, I think I've even seen him do it!) The verb "to grant," as I understand its meaning, operates differently.
Michael McConnell makes short work of my argument, observing that a person can "grant" property to himself as a trustee to hold in trust for certain purposes.
I'm not sure that the example does the work for him that he believes it does. My point is that the verb "to grant" connotes a transfer from an entity to another that has no claim of right to the thing granted. Note that McConnell's example involves a a grantor's grant of something to himself "as a trustee." That's significant, isn't it? There are two different legally recognized entities here that play distinct roles -- a grantor and a trustee. There remains here the one-entity-to-a-different-entity sense. The grantor isn't really giving the thing to himself, the grantor. He's giving something to a different entity, a trustee, who in this case happens also to be the same person who's playing the role of grantor.
But this obscures the larger and more important point that is captured in the Hunter's Lessee quote atop this post. The inquiry into original meaning is not an inquiry into original rare-and-odd-but-still-conceivable meaning. It's an inquiry into original natural and obvious meaning. So even if it's true that one can locate rare scenarios in which a grant can go from the grantor to the grantor, all this means is that if we could sit down with the ordinary person in 1789, we would have to go on at some length about a unique and unusual sense of a word, and the 1789 person would listen, cock his head, look skeptical, and then maybe finally come around to saying, "ohhhhhhh, I see what you mean -- you're using "grant" in that specific and rare sense, aren't you? OK then."
Surely that can't be how the work of original meaning gets done, can it?
Let's take an example. Suppose that, upon a vote of condemnation by a 2/3 vote in the House of Representatives, the Speaker were to take a member to a third-story window and throw him out of it to the ground below, breaking his leg. Suppose that the injured member sued the Speaker in tort. And suppose that as a defense the Speaker were to raise this language of Article I, Section 5: "Each House may ... with the Concurrence of two thirds, expel a Member."
"That's just what I did," the Speaker argues. "I expelled him. I can't have liability in tort for doing what the Constitution, in terms, allows me to do."
Here we would expect a judge to invoke the ancient doctrine of "oportet te quasi ludens loqui" ("you've got to be kidding").
Yes, there is a sense of the verb "to expel" that captures the sense of physically ejecting something (or someone) from a place. But is there any reasonable argument that the ordinary meaning of the word "expel" in the context of Article I, Section 5 includes that sense?
"The words are to be taken in their natural and obvious sense," says Justice Story. I agree.