an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
No, this is not an anti-government manifesto. Article One, Section Eight, Clause Seventeen of the Constitution provides that Congress shall have the power:
"To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States . . . ."
The current size of the District of Columbia, though, is about sixty-eight miles square. How, then, are the boundaries of the District constitutional? Couldn't any resident of the so-called "District" bring a suit alleging that every Act of Congress governing them as residents of Washington DC is invalid?
"Ten miles square" doesn't mean "ten square miles," it means "a square area 10 miles on each side," or one hundred square miles. Which, incidentally, was the size of DC before the retrocession of what is now Arlington County to Virginia.
Given that the original boundaries of the district were drawn while a massive majority of the Constitution writers and citizen-ratifiers were still alive, I'd say the 100 sq. mi. interpretation is not only not ambiguous, but also that any other interpretation is ridiculous.
Perhaps one could argue that the "seat of government" is within the area not-to-exceed 10 miles square. That is, say Capitol Hill and the White House are within the original ground ceded. In that case, all laws made within that area are fine.
The remainder of the District of Columbia, outside that area, may be some kind of nebulous zone, but it is not the seat of government. Any administrative agencies outside that are are unconstitutional. Without a doubt :)
it is worthwhile to look at property cases from the period. See example, Symsbury's case, 1 Kirby 444, 1785 WL 63 (Conn.Super. 1785), which describes a parcel of land with ten mile sides as being "ten miles square." the court described the land as follows:.-“On Farmington bounds, on the south, and to run east and west ten miles; and from the south bounds, north ten miles; and abuts on the wilderness on the north and on the west, and on Windsor bounds on the east; the whole tract being ten miles square.”
That unquestionable source of contemporary ordinary meaning, Wikipedia, says: The square mile ... should not be confused with miles square, which refers to the number of miles on each side squared. For instance, 20 miles square (20 × 20 miles) is equal to 400 square miles.
In all seriousness, I am pretty sure that if you actually look at contemporary usage, you would discover that "miles square" was not in fact an Eighteenth-Century way of saying "square miles."
Hmm . . . my comments must be ambiguous. I'm not saying that "ten miles square" is unclear once you do the research. I'm just saying that the meaning isn't self-evident. If you took a poll, for instance, and asked people what ten miles square meant, you get a variety of answers.
It's a serious audience today (except for the guy who must watch "The Colbert Report" on a regular basis).
I'd bet the same would happen if you polled the public on the meaning of, say, "quorum." Any word or phrase can be made ambiguous by arguing that usage might have changed -- maybe "ten" used to be the word for the quantity we now call "eleven." But the linguistic difference between "ten miles square" and "ten square miles" reflects the underlying order of operations, and "ten miles square" will be 100 square miles until the New York Times has its way and no one knows algebra anymore anyway.
If you asked people to say what "ten miles square" means and gave them no options, some would surely mess up. But if you asked whether "ten miles square" means one square with ten-mile sides or ten squares with one-mile sides, I venture to say almost no one would answer the latter.
It is only not self-evident because it needs to be parsed carefully, not for lack of a well-known, contemporary, and unequivocal meaning.
At most, there is ambiguity only because you have to ask if the author made a mistake and you need to apply a corrective canon. (e.g., it is obvious that the second reference to "miles square" in the above post is meant to be "square miles")
1 mille square = 1 square mile 2 miles square = 4 square miles 3 miles square = 9 square miles 4 miles square = 16 square miles 5 miles square = 25 square miles 6 miles square = 36 square miles 7 miles square = 49 square miles 8 miles square = 64 square miles 9 miles square = 81 square miles 10 miles square = 100 square miles
Keep in mind that George Washington was a trained land surveyor.
There is no ambiguity in '10 miles square'. There may well be misunderstanding due to ignorance, but that is nothing new regarding math questions. Ambiguity requires two possible correct interpretations, and the interpretation that 10 miles square means the same thing as 10 square miles is not correct.
The number of "possibly" correct interpretations of a text is infinite, even if there is only one correct interpretation. When the last person who could read Linear A died, the number of possibly correct interpretations grew with the ignorance of subsequent viewers of the inscriptions. Entropy rules!