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Solum on Leiter (and Me) on Originalism:
Larry Solum has an important new post on the New Originalism responding to Brian Leiter and my recent posts on the subject. Semantic and Normative Originalism: Comments on Brian Leiter's "Justifying Originalism" It is far too long and complex to summarize here, and I cannot even find a single excerpt that captures its entire analysis. Still, here is an excerpt that might get you to read it as anyone interested in originalism should do:
[snip]

The Case for Semantic Originalism

[snip] The meaning of an utterance is simply a fact about the natural world. For this reason, semantic theories might be called "descriptive" or "positive." Simplifying greatly, we might say that there are two leading theories of legal meaning in general, which we might call "textualism" and "intentionalism." These theories of natural meaning correspond, more or less, to the distinction made by philosopher Paul Grice between "sentence meaning" and "speakers meaning." In the context of constitutional theory, textualism is the view that the natural meaning of the constitutional text is its conventional semantic meaning—the meaning that the words and phrases would have conveyed to the public at the time the relevant portion of constitutional text was drafted, proposed, and adopted. Borrowing from Grice, we can call this sort of meaning "clause meaning." Similarly, the constitutional version of intentionalism is the view that the natural meaning of the constitutional text is meaning intended by the authors (framers and/or ratifiers) of the relevant constitutional provision. Following Grice we might refer to this kind of meaning as "framers meaning."

From what I have said so far, one might infer that we can choose between framers meaning and clause meaning, and that this choice would have to be justified on normative grounds. But this is not, in fact, the case. That is because the meaning of legal texts in general (and the Constitution in particular) cannot be understood as speakers meaning (or framers meaning). For speakers meaning to be possible, the audience of an utterance must have knowledge of the speaker's intentions and the speaker must know that the audience has this knowledge—call this the "reflexivity condition." But in the case of legal texts like judicial opinions, statues, and constitutions, the reflexivity condition is not met. This is most obviously true in the case of the United States Constitution, where the framers believed the evidence of their intentions (the proceedings of the Philadelphia Convention) would be kept secret. Recognizing that there are conditions under which speakers meaning is impossible, Grice recognized the existence of sentence meaning—the meaning that would be conveyed by the conventional semantic meaning of the expressions that constitute an utterance. In the context, of the Constitution, this is the "clause meaning" or the conventional semantic meaning of the constitutional text. In other words, "clause meaning" is the "original public meaning" of the New Originalism.

Of course, there might be other semantic theories of constitutional meaning. For example, someone might argue that the semantic meaning of the clauses is the conventional semantic meaning they have at the time of application—call this "contemporary public meaning." For example, the phrase "domestic violence" might have referred to "rebellion or insurrection" at the time the Constitution of 1789 was adopted, but it could refer to "spousal, child, and elder abuse" today. Or it might be argued that the meaning of the Constitution is whatever meaning a judge wishes to assign to it—on this theory, the Constitution is an empty vessel into which judges can pour any semantic content they wish. Or one might be a semantic skeptic, and deny that there is any semantic meaning at all. Although I won't make the arguments on this occasion, even a moment's reflection reveals that there are serious problems with contemporary public meaning or judge's meaning as semantic theories. Semantic skepticism faces even more serious problems, including the obvious one that it is self-effacing because it implies that it is not even meaningfully assertable.

How might one argue against semantic originalism? There are at least three strategies. First, one could argue for some particular alternative semantic theory. Second, one could argue for semantic pluralism—the view that the constitutional text has a "meta-ambiguity" between the meanings assigned to it by alternative semantic theories. Third, one might argue that the constitutional text lacks semantic content at all—that despite the superficial resemblance of the text to a meaningful utterance, the Constitution simply does not mean anything at all. Perhaps there are other strategies. But any argument that clashes with semantic originalism must assume a stance either about or from within a semantic theory. What won't work is to make a normative argument against semantic originalism. Normative arguments address a different question, and the attempt to argue against semantic originalism on the basis of a normative claim involves a category mistake.

Reframing the Normative Debate

The truth of semantic originalism, by itself, has no normative implications. Even if the semantic content of the constitution is the original public meaning, it could be the case that constitutional practice should deviate from that meaning. For example, one might argue that precedent should trump the original public meaning. Or one might argue that the difficulty of constitutional amendment so undermines the democratic legitimacy of the Constitution that the political branches are justified in "amending constructions" that give the text new and different semantic content. Or one might believe that the constitution is so undesirable or unjust that judges are justified in ignoring the semantic content of the constitution and deciding cases on the basis of their own beliefs about what the Constitution should have provided.

[snip] In a wide variety of legal contexts, the notion that officials are obligated by the semantic content of legal texts is simply not controversial. Quite the contrary, our usual assumption is that in a reasonably just society, the semantic content of valid legal texts creates obligations for judges, other officials, and citizens. The corresponding obligations of fidelity to the law attach to the semantic content and not the mere syntactic form of the texts.

Again, I should be very clear. I am not claiming that I have produced a normative argument for originalism. The aim of this discussion of the normative case for originalism has been very modest. My goal is to put the normative question in a new frame. Leiter is right to observe that many originalists—but not Balkin, Barnett, or Whittington—seem to beg the normative question. If I might be allowed to restate Leiter's observation in my own terminology. Many originalists seem to believe that by producing arguments for semantic originalism, they have provided a prima facie normative case. By reframing the debate, I think we can see how they made this mistake. These originalists believed that it was obvious that the correct theory of constitutional meaning entailed normative conclusions. I believe that was a mistake. "Obviousness" is in the eyes of the beholder. Once the normative claims of originalism are questioned, an argument must be produced.

But what is good for the goose is good for the gander. Nonoriginalists have their own burdens of persuasion and production. If nonoriginalists want to admit the truth of semantic originalism, but deny its normative force, they should do so explicitly. If they want to contest the truth of semantic originalism, they should lay their arguments on the table and make them explicit. If they want to deny the normative significance of the semantic content of the Constitution, but claim that the semantic content of other constitutional texts has normative authority and creates obligations of fidelity, they should produce the arguments that justify this distinction. And if they want to argue that some nonoriginalist theory of constitutional interpretation is justified on normative grounds, they need to produce the arguments.
Read the whole thing.

Related Posts (on one page):

  1. Solum on Leiter (and Me) on Originalism:
  2. Leiter on Originalism:
CJColucci:
This debate gets altogether too abstract for me, so how about a concrete example of what, if anything, original public meaning originalism actually does?
McCulloch v. Maryland. Everyone on all sides of that case had far more insight into the original public meaning of the Constitution than any cloistered 21st-century academic could possibly have now. Who was right and, on original public meaning principles, why?
10.30.2007 1:24pm
Sebastian Holsclaw (mail):
A key theoretical problem with many non-originalist arguments (which I have never seen addressed anywhere) is that they want to hang their hat on the importance of judicial decisions while maintaining some level of semantic skepticism about the Constitution.

You mention the problem, but probably not very clearly for a lay audience.

The key is problem is that non-orignalists can't logically undercut limited interpretations of the Constitution without also causing problems with interpreting the judicial decisions that they want to hang on to. Any objection they raise to the 'difficulty' of interpreting the Constitution applies with equal force to the words written down in judicial opinions.

Trouble understanding the 1st amendment? Try the Lemon test! Trouble understanding "cruel and unusual punishment"? Try any opinion by O'Connor.
10.30.2007 1:34pm
frankcross (mail):
Well, I think very few people depart from textualism, or semantic originalism, as a default rule. Simply for reasons of stability, if nothing else. The normative case for departures, though, would simply be the "live hand" as opposed to the "dead hand." Although this is often associated with the left, the "Constitution is not a suicide pact" claim is the conservative version of this approach.
10.30.2007 1:54pm
HappyConservative:
I find Larry Solum singularly unpersuasive.

His first problem is his insistence that meaning can be clearly and cleanly separated from our normative views. But this is false, since we all inevitably see only some portion of reality and this portion of reality that we see is inextricably intertwined to our motivations, desires, fears, etc as well as our particular genetic makeup.

This is especially so with something as abstract as "meaning." Unlike a cat, car, or a rock, meaning is not something that is just objectively "out there." It is instead socially constructed. And the "meaning" of a thing varies across individuals and across communities.

My second problem is that he is asking the question of what the meaning of something "is" instead of asking what the meanings (plural) of something "are." I think the burden is on Solum to demonstrate that there is only one "true" semantic meaning, since this view is absurd on its face. As Solum mentions there are phrases which seem to have only one sensible semantic meaning for most of us (you have to be 35 years old before you are eligible to be President). But these are not the subject of controversy and are not really central to the debate.

Mr. Solum seems to only perceive a few possible moves that can be made against his conception of semantic meaning. But here is one. Take this problem that everyone, including Solum, must acknowledge to exist -- the problem of "vagueness" which is really the problem of multiple semantic meanings. The real issue is that much of the Constitution is vague, or consists of a sequence of words that are susceptible to the attachment of multiple semantic meanings in various contexts. The portions of the Constitution that are not vague simply are not the subject of much dispute. That Mr. Solum can establish an "is" for the semantic meaning of the phrase "neither shall any person be eligible to that office who shall not have attained to the age of thirty five years" (referring to the minimum age for someone to be President) does not really answer any non-trivial questions that are in dispute.

I agree that there "is" a single overwhelmingly dominant semantic meaning for many phrases in the Constitution. But the thing these phrases have in common is that we don't tend to have much litigation over their meaning. The burden is on Mr. Solum to show that there "is" a single overwhelmingly dominant semantic meaning so that we discard the idea that there "are" many plausible semantic meanings in controversial cases.

To the extent that Mr. Solum is obsessing over the fact that most of us tend to agree that there is an overwhelming dominant semantic meaning for many phrases, he is missing the point of the debate entirely.

To the extent that Mr. Solum focuses on what matters -- areas where multiple semantic meanings can reasonably be attached to a sequence of words in the Constitution -- there is no escaping the fact that normative considerations come into play in picking which of the many plausible semantic meanings is going to be "the" semantic meaning that rules.

There is no objective way of selecting semantic meanings. Say that semantic meaning X is best supported by evidence A and B. That it is somewhat supported by C. That it is not supported by D. Say that semantic meaning Y, in contrast, is best supported by C and D. Is somewhat supported by B. And not supported by A. And imagine that you have 5 other possible meanings, all of which are similarly supported, to differing degrees, by different pieces of evidence. The problem is that there is often and usually no objective way to say that evidence A deserves more weight than D. And even if you can say A deserves more weight than D, there is no objective way to quantify it. Because when C deserves more weight than B, the problem of magnitude of weights becomes critical.

The inescapable fact is, that there is no objective way to assign a quantitative weight to pieces of evidence that point in different directions. And for evidence that might points in multiple directions, there is no objective way to assign quantitative weight to the different directions that that piece of evidence points to.

So, as a descriptive matter, it plain that the "meaning" that rules, that is, the meaning that a person selects out of all possible meanings, tends to be deeply tied to their normative views. It is the normative, not anything objective, that leads one to assign a particular weight to certain evidence in cases where there is not an overwhelmingly dominant semantic meaning. That is, there is no escaping the normative when it comes to saying what the semantic meaning "is." Because, proceeding that "is" there was a selection process that was not in any way objective.

Mr. Solum's problem is that he is focusing on cases where the selection process is essentially non-existent (and where one can fairly say that the "is" can be objectively determined, such as the requirement that the President be thirty five years of age) and assuming that because there "is" a semantic meaning in those situations, there "is" a semantic meaning elsewhere. In many cases, and these are the cases where there is controversy, the semantic meaning that rules can only be derived with reference to normative values that allow one to assign weight to evidence.
10.30.2007 2:54pm
Jackson Benson (mail) (www):
The following sentence sums up all that is wrong with Leiter's weird take on originalism:
Normative arguments address a different question, and the attempt to argue against semantic originalism on the basis of a normative claim involves a category mistake.
10.30.2007 3:02pm
HappyConservative:
Jackson Benson


I disagree with this. Determining semantic meaning is a normative process, when there is not an overwhelmingly dominant candidate. The process of determining "is" is preceded by a process of assessing evidence supporting different candidate meanings; and this process is not and cannot be done objectively (unless one were will to select a random meaning).


I, of course, speak for myself, and not Leiter. (Who is a very disagreeable fellow, I must say.)
10.30.2007 3:08pm
HappyConservative:
[This is the correct post. The one above blockquoted myself instead of Mr. Benson.]

Jackson Benson


The following sentence sums up all that is wrong with Leiter's weird take on originalism.


I disagree with this. Determining semantic meaning is a normative process, when there is not an overwhelmingly dominant candidate. The process of determining "is" is preceded by a process of assessing evidence supporting different candidate meanings; and this process is not and cannot be done objectively (unless one were will to select a random meaning).

I, of course, speak for myself, and not Leiter. (Who is a very disagreeable fellow, I must say.)
10.30.2007 3:11pm
Sebastian Holsclaw (mail):
Happy conservative, the problem is that your critique works with equal force against all constitutional theories of jurisprudence that do anything other than "let judges do what they want in each case". For example, you cannot rely on common law or past legal opinions because they all have exactly the same problem. You can't really determine what they 'mean' any more than you can with the Constitution.

So you've proved too much, unless your aim is to attack Constitutional jurisprudence entirely.
10.30.2007 3:14pm
Raghav (mail) (www):
Jackson Benson: The following sentence sums up all that is wrong with Leiter's weird take on originalism

You mean Professor Solum, I take it?

Would this mean that the sentence meaning of the 27th amendment is its meaning in the 18th century, not in 1992, when it was ratified? Most "normative originalists" think that the original public meaning refers to the meaning at the time that bit was ratified. (Not that it makes much of a difference for the 27th amendment.)
10.30.2007 3:24pm
Jackson Benson (mail) (www):
You mean Professor Solum, I take it?

Um, no. I mean Leiter. He's the one who keeps attacking originalism solely on the ground that (he thinks) it lacks normative support, even though the question "does this document have normative support" is clearly very different from the question "Hmm, how are we to tell what this document means?" Obviously, you have to know what the document means before you can even ask whether it's normatively desirable to follow that document. And so you have to have a theory for telling what the document means first.

It puts the cart miles ahead of the horse to say, as Leiter apparently does, "I'm first going to figure out what I think has normative support, and then I'm going to assume that THAT's what the document means, and then I'm going to come up with a theory for construing the document so as to mean what I want it to mean."
10.30.2007 3:39pm
HappyConservative:
Sebastian Holsclaw,

You haven't really said anything that goes to whether the points I make are true or not. That you do not like the results does not make those observations any less true.

I certainly would not say that, taken as true, my points would constitute anything as dramatic as an "attack on Constitutional jurisprudence entirely." My observation is simply an important point and limitation to keep in mind while one is engaged in that enterprise.

I should also point out that the points I make are not an attack on any particular theory (except to the extent that a theory relies on a distinction in conflict with those points), and they certainly do not constitute a theory alone. Instead, I am merely pointing to objectively existent limitations that every theory will have to grapple with.

If you actually want to address any concerns you have about whether the points I made are aligned with reality, I would be very interested in hearing them.
10.30.2007 3:42pm
Jon Rowe (mail) (www):
I admire Solum's intense thinking, but I couldn't get through his post; it's too long.
10.30.2007 4:22pm
Jon Rowe (mail) (www):
I admire Solum's intense thinking, but I couldn't get through his post; it's too long.
10.30.2007 4:22pm
HappyConservative:

I admire Solum's intense thinking, but I couldn't get through his post; it's too long.


Alas, it is sad to see that America's chronic inability to pay attention affects even VC readers. What can we do to combat short attention spans?
10.30.2007 4:41pm
Jon Rowe (mail) (www):
As Eugene Volokh once put it, there are no lazy readers, only busy readers.
10.30.2007 4:47pm
HappyConservative:
Jon Rowe,

Well, if you have the attention span, but not the time, that is perfectly understandable.

But to say that there are "no lazy readers" is completely false. There are lazy readers; this country is filled with people with inadequate attention spans who can not focus for a prolonged period of time. You may not be a lazy reader. But lazy readers do exist.
10.30.2007 4:53pm
GV_:
Jackson Benson: not to speak for Leiter, but he has never said he opposes Originalism solely because there is no normative argument in favor of it. But that's a side issue.

You write: "Obviously, you have to know what the document means before you can even ask whether it's normatively desirable to follow that document." You don't have to know precisely what a document means to know whether it's a binding legal document. If I scribble on a piece of paper, "Bah, doh, dah," you don't need to know what that means to know whether that piece of paper creates a binding legal obligation on you. It doesn't.

And if I tell you it does, I could offer defenses of it without ever referencing what it means. I could say, for example, that you are obligated to follow what I wrote because you consented to that. For example, you might have said, "GV, whatever you write down on that piece of paper, I will do." Or I might say that the process by which I came about writing that paper was such a morally upright process that you're obligated to follow what it means, whatever that might be. Assuming I was right that a special moral process could generate legal obligations on you and that such a process was followed, we might then discuss what was meant by what I wrote.

In short, the question of whether the constitution generates legal obligations is separate from what the constitution means. Of course, if the constitution was so incoherent that you couldn't understand it, that would seem to make it difficult to argue that you are obligated to follow it. (But see my consent example above.)
10.30.2007 5:36pm
GV_:
I should have said, the question of whether the constitution generates legal obligations can be conceptually separated from what the constitution means. Of course, perhaps there is an argument that you only have obligations to follow a document that would place on you morally right obligations. I think that's a bad, confused argument for reasons I won't get into here. But you need to argue to get to that position. It's not some sort of default position that is conceptually required, as Benson seems to assume.
10.30.2007 7:04pm
Brett Bellmore:
One can certainly, as did Lysander Spooner, dispute whether the Constitution generates any legal obligations upon the average citizen, who has not, after all, signed it, or meaningfully consented to it's jurisdiction.

However... The people actually running the government, and in particular the judiciary, are not average citizens in this respect. They have, every one of them, voluntarily undertaken an oath to be bound by the Constitution. And only by virtue of that oath are in any position to exercise the power they do.

For officers of the government, there is no question that the Constitution is binding. If they decide otherwise, and yet presume to retain their offices, they prove themselves to be morally depraved.
10.30.2007 7:24pm
Larry Fafarman (mail) (www):
Originalism is an abomination. The Founders would not have been happy living under all of our principles, so why should we be happy living under all of theirs? In many cases we cannot even guess the beliefs and intentions of the Founders because we are often faced with situations that they never even imagined. Originalism has led to the gross distortion of history, as different factions have sought to claim the Founders thoughts as their own -- for example, in interpreting the First Amendment's provisions for the so-called "separation of church and state" (I even hesitate to use that term because it has been misinterpreted), originalists have stereotyped the Founders as everything from a bunch of bible-pounding, holy-rolling fundies to a bunch of godless, blasphemous, satan-worshiping atheists. One of the worst examples of originalism was where Judge John E. Jones III said in a Dickinson College commencement speech that his decision in the Kitzmiller v. Dover intelligent design case was based on his notion that the Founders believed that organized religions are not "true" religions.
10.31.2007 7:28pm
Brett Bellmore:
Oh, come off it. "Originalism" is just how you normally interpret text, if you haven't got some overwhelming reason for torturing it until it yields up a 'meaning' you like. The only reason it's the least bit controversial with respect to the Constitution is that a fair number of people in the legal community DO have reason to put the Constitution on the rack, and crank until it 'means' what they want.
10.31.2007 9:46pm