More on Self-Pardons

"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.

Comments

[Pruitt Foundation and Center for Environmental Justice]

What does American Bible Law say about this? This is an exciting time for us.

[anon]

So, Sy Abelman, Carswell, Deep State, Athlete, Jeff Sessions, Pruitt FOundation ...

Does anyone else find a sort of juvenile compulsion to graffiti every post with this sort of "humor" disgusting ...?

Does a person doing this think himself clever and witty, or intend to destroy the commenting section on this blog?

[Pruitt Foundation and Center for Environmental Justice]

^^^This blog is not the Pittsburgh Post Gazette.

[Steven Lubet]

The whole point of a trust is that it is a distinct legal entity, created with powers that the grantor cannot exercise himself or herself. A grant to a trust is by definition not the same thing as a grant to oneself.

And in any case, it is not obvious that such transfers even existed in 1787 (although I would expect someone to note that on the Originalism Blog).

[[M][a][c][K]]

non mingit in femore meo et loquaris mihi est pluere

Interesting about clichés. That one dates from when most sports stands were standing room only (before say the Liverpool Hillsborough disaster) when it could be almost impossible to leave the grandstand to go to the toilet, which led spectators to do it where they stood (the were also known as p*** in the pocket stands.)

I recently ran into the same problem with the old expression - "like the dog that caught the truck." It made sense to me, having in my childhood been in cars that rural farmyard dogs would chase barking their heads off - but today, leash laws prevail nearly everywhere and associates are puzzled.

Similarly "toe the line" (not tow) or for a ship to be "under way" but to "weigh anchor" ("way" is sufficient movement in the water for the rudder to work, "weigh" means literally to hang/lift (hence weighing scales (they used to be balance scales on scaffolds)) - or my favourite annoyance "the exception that proves the rule" - when Shakespeare wrote that "prove" meant to test, and looking for an exception was a standard approach to postulated, usually mathematical rules (an exception proves it is not a rule.)

Maybe I'm being a old fogey