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Larry Solum on Semantic Originalism:
Originalist theory has made great strides in recent years. Among the most insightful of these theorists is Larry Solum, whose Legal Theory Blog is a must read for law professors and academically inclined law students. Solum's important new paper, Semantic Originalism, is the most systematic and careful explication of originalist methodology ever presented. Anyone who is seriously interested in constitutional interpretation in general and originalism in particular must read this paper. But for those who have more of a passing interest in this subject--or to get a sense of why the paper is worth reading in its entirety--you should check out Solum's blog posts responding to a series of thoughtful questions posed by Steve Griffin on Balkanization. Two installments are now posted. At the beginning of the first (located here), Solum summarizes semantic originalism:
First, the central aim of semantic originalism is to disentangle the different kinds of claims that play a role in contemporary theoretical debates over originalism. Some claims are nonnormative claims about "meaning." But once we say "meaning," there is potential for misunderstanding, becuase "meaning" is an ambiguous term: I am using "meaning" in the sense of "linguistic meaning" or "semantic content." Other claims in the originalism debate are about the relationship between the semantic content of the constitutional text and the content of consittutional law--these claims are legal claims. In theoretical terms, they are claims about the rule of recognition and the role that it assigns to the constitutional text. And a final set of claims are normative (or claims of political morality): these are claims about what how whether we should respect constitutional law, and whether we shoudl affirm or reject our current legal practices.

Second, Semantic Originalism deploys a technical distinction between "construction" and "interpretation." The basic idea of the distinction is that there are two distinction activities involved in the movement from constitutional text to application. The first activity, "constitutional interpretation," is the determination or discovery of the semantic content or linguistic meaning of the constitutional text. The second activity, "constitutional construction," involves the translation of the semantic content into rules of constitutional law. When the meaning is plain (neither vague nor ambiguous), then the interpretation and construction happen without our even noticing: the constitutional text gives each state two senators, that means two senators, and the legal rule is two senators. But sometimes the text is ambiguous: in the strict sense, "ambiguity" occurs when a word, phrase, or expression has two or more possible meanings. Usually, we resolve ambiguity by interpretation: the context of utterance makes it possible to determine which sense provides the correct understanding of the meaning. Other times, the text is vague: in the strict sense, "vagueness" occurs when there are borderline cases. Usually, the resolution of vagueness requires a construction and cannot be resolved by interpretation. That's because it is usually the case that the semantic content is vague.

With those two distinctions in place, here is a summary of the four central claims of Semantic Originalism:

The fixation thesis claims that the semantic content of each constitutional provision is fixed at the time the provision is framed and ratified: subsequent changes in linguistic practice cannot change the semantic content of an utterance. Here is an example. The constitution refers to "domestic violence." The meaning of this phrase did not change when the contemporary sense of "domestic violence" as "spouse abuse" entered linguistic practice. Instead, the original sense of "domestic violence" as (roughly) "riot, rebellion, or insurrection within a state" is the fixed.

The clause meaning thesis claims that the semantic content of each clause of the Constitution is given by the conventional semantic meaning (or original public meaning) of the text with four modifications:
The first modification is provided by the publicly available context of constitutional utterance: words and phrases that might be ambiguous in isolation can become clear in light of those circumstances of framing and ratification that could be expected to known to interpreters of the Constitution across time.

The second modification is provided by the idea of the division of linguistic labor: some constitutional provisions, such as the natural born citizen clause may be terms of art, the meaning of which are fixed by the usages of experts.

The third modification is provided by the idea of constitutional implicature: the constitution may mean things it does not explicitly say.

The fourth modification is provided by the idea of constitutional stipulations: the constitution brings into being new terms such as House of Representatives and the meaning of these terms is stipulated by the Constitution itself.
The contribution thesis asserts that the semantic content of the Constitution contributes to the law: the most plausible version of the contribution thesis is modest, claiming that the semantic content of the Constitution provides rules of constitutional law, subject to various qualifications. Our constitutional practice provides strong evidence for the modest version of the contribution thesis.

The fidelity thesis asserts that we have good reasons to affirm fidelity to constitutional law: virtuous citizens and officials are disposed to act in accord with the Constitution; right acting citizens and officials obey the constitution in normal circumstances; constitutional conformity produces good consequences. Our public political culture affirms the great value of the rule of law.
In the first of his posts, located here, Solum addresses the question:
Solum provides a theory of how the various clauses (provisions) in the Constitution acquire meaning. But why is meaning limited to clauses? Articles might also have meaning, especially in relationship to one another. So some might view the message of Articles I, II, III as saying there should be three co-equal branches of government. And some view the entire Constitution as communicating a meaning best summarized in the Preamble. Is there a reason to limit meaning to clauses?
In his second post, located here, he addresses this question:
The Constitution is not annotated. Amendments were placed separately (not, as Madison wanted, inside the 1787 document) and do not have clauses that explain how they relate to the 1787 document. How do we synthesize the meaning of later amendments with the original document if their semantic meaning does not tell us how to do this?
If you are interested in originalism (either as sympathizer or critic) and cannot read the paper, Semantic Originalism, you should certainly follow Solum's blog posts this week.
Tim Dowling (mail):
Dear Prof. Barnett:

Regarding your assertion that originalist theory has made great strides in recent years, I would agree that the current scholarship is far more nuanced than the early forays into originalism by Attorney General Meese, where he introduced and explored what he called a "Jurisprudence of Original Intent. " Those early speeches, which were sometimes drafted by non-lawyer speechwriters, were imprecise and ham-fisted.

But in what sense is modern originalism more sophisticated or nuanced than the originalism practiced by Chief Justice Marshall or Justice Story? I have yet to see a modern law review article on originalism that surpasses the analysis of constitutional interpretation set forth in Story's commentaries. By "great strides," do you mean great strides in cleaning up confusion caused by other modern scholars? Or do you think modern originalist theory is in some real sense more sophisticated than the original version?

I tend to think that if we see more clearly than our ancestors on this issue, it's because we stand on the shoulders of giants, but perhaps I'm missing something.

Regards,
Tim Dowling
5.1.2008 10:51am
ithaqua (mail):
tl;dr; but isn't this:

The third modification is provided by the idea of constitutional implicature: the constitution may mean things it does not explicitly say.

a terribly dangerous admission for any originalist theory? Permitting the Constitution to protect 'implied rights' and 'penumbras' and so on nerfs the idea of the Federal government as one of limited and enumerated powers - the courts invent a 'right', ie, a 'right to privacy', and thus authorize the Feds to enforce that right by wielding government power against state legislatures and citizen bodies. Basically, that part of the 'clause meaning thesis' gives activist judges and Federal authorities a blank check written on the Ninth Amendment; since this is a politically significant theory, not a merely academic one, the political consequences should be taken into account.
5.1.2008 10:51am
BruceM (mail) (www):
This might go to the "second modification" somewhat, but I firmly believe the framers intended for some words and phrases to change over time. While I don't believe in a "living Constitution" I do believe in some "living clauses" of the Constitution. The best example, I think, is "cruel and unusual punishment" (which is supposed to be a single concept, not a two-part test (e.g. is it cruel? if so, is it unusual? - that's wrong). The framers fully intended that phrase to have a definition that changed with the times. Otherwise they would have just listed punishments they opposed (no rack, no drawing and quartering, no boiling, no flogging, etc).

Which constitutional phrases/clauses/words are "alive" and which ones are not is, of course, the big question. I don't propose to have an answer for that, though I certainly have opinions.
5.1.2008 11:09am
ithaqua (mail):
"The best example, I think, is "cruel and unusual punishment" (which is supposed to be a single concept, not a two-part test (e.g. is it cruel? if so, is it unusual? - that's wrong). The framers fully intended that phrase to have a definition that changed with the times."

Well, I don't think that that the Founders were willing to see the definition of 'cruel and unusual' change over time; in 1787, judging from history, it would have seemed far more likely that any change would have been in the direction of greater and more loathsome brutality than otherwise. Rather, they didn't make a list of banned punishments for the same reason many of them didn't want a list of 'enumerated rights' in the first place: so that no one could argue that some barbarous form of punishment or violation of natural human rights is Constitutional simply because the Constitution does not explicitly forbid it. (Of course, the ban on 'cruel and unusual punishment' didn't apply to the states, just to the federal government, which had only limited ability to try cases in the first place; but that's another issue.)
5.1.2008 12:47pm
some dude:

Bruce M: The best example, I think, is "cruel and unusual punishment" (which is supposed to be a single concept, not a two-part test (e.g. is it cruel? if so, is it unusual? - that's wrong)


Interesting. How do you know that? I recently read the opposite somewhere. If the founders wanted, they could have said "cruel or unusual." If a punishment is unusual but not cruel it is allowed. If a punishment is cruel but usual (everybody does it) then it is also allowed.
5.1.2008 2:32pm
John (mail):
Good heavens! This seems to be a VERY long way to say we should honor the deal as made and understood by those who made it.
5.1.2008 3:19pm
Bama 1L:
academically inclined law students

I know what is meant, but it's amusing to consider that most law students are therefore academically disinclined. For my grades' sake, I sure hope they're in my section!
5.1.2008 3:47pm
33yearprof:
Permitting the Constitution to protect 'implied rights' and 'penumbras' and so on nerfs the idea of the Federal government as one of limited and enumerated powers - the courts invent a 'right', ie, a 'right to privacy', and thus authorize the Feds to enforce that right by wielding government power against state legislatures and citizen bodies.


This can't be "originalism." It's the heart of the "whatever we nine say TODAY" approach.
5.1.2008 5:08pm
Dilan Esper (mail) (www):
Well, I don't think that that the Founders were willing to see the definition of 'cruel and unusual' change over time

So your contention is that the framers expected that there could be no situation where a punishment that was considered tolerable in 1791 would, upon later reflection and social consensus, be determined to be cruel?

Look, this is the achilles heel of a lot of originalism, so I am not surprised to see some pushback on this. But everyone writing an executory legal provision such as a statute or constitutional provision knows that if you use slippery, amorphous words like "reasonable" or "cruel" or "liberty", that these concepts can change over time, just as they have changed over time in the past. The believers in the "dead Constitution" that Scalia and his cohorts espouse would need to establish some evidence that this was not the framers' understanding of these types of provisions.
5.1.2008 5:36pm
almost done with 1L (www):
Bama 1L:

academically inclined law students

I know what is meant, but it's amusing to consider that most law students are therefore academically disinclined. For my grades' sake, I sure hope they're in my section!


A few months ago I would have agreed with you, but I've discovered that people come to law school for many different reasons-- many of them non-academic. For some, law school is just a means to an end, something to be endured before the "student" is certified for the real job s/he wanted (a job for which a law degree was a mere prerequisite).
5.1.2008 5:46pm