A major target of Larry Solum’s much-discussed “semantic originalism” is the confused claim (which he attributes to many nonoriginalists) that normative considerations can transform the original meaning of the constitutional text. This claim is indeed confused, but Solum is mistaken in attributing it to sophisticated nonoriginalist theories, which for the most part are best understood as normative accounts of how judges and other interpreters should attribute legal (rather than linguistic) meaning to the constitutional text.
To be sure, most nonoriginalists would be unwilling to concede that their theories permit legal meaning to deviate from or override linguistic meaning. To this extent, they might be thought to contest, at least implicitly, Solum’s descriptive claim that original public meaning is the Constitution’s one true linguistic meaning (and to do so on normative, rather than positive, grounds). But this is essentially a terminological disagreement. Nonoriginalists are happy to acknowledge that their approach permits interpreters to depart from—indeed to contravene—original meaning. That, after all, is what makes them nonoriginalists. Their claim to honor the text’s linguistic meaning is a claim to honor other meanings, such as the plausible range of meanings present-day Americans would understand its words to bear.
Whether or not these represent linguistic meanings in the technical philosophical sense Solum is concerned with, they are plainly an intelligible object of inquiry. The important question is thus a normative one: whether these meanings, or original meaning, ought to be of overriding interest to constitutional interpreters. Of course, that is the same question originalists and nonoriginalists have always understood themselves to be debating. Solum’s heroic efforts to identify originalism with interpretation (carefully, openly defined as searching for the linguistic—which is to say original public—meaning of the text) change nothing.
Posted by Andrew Coan on February 8, 2010 at 09:00 AM
Comments
I’m not sure what the relevant measuring stick is for “change,” but I would disagree that Solum’s article “changes nothing.” It is probably correct to say it won’t change many minds, because not much does. But in any debate such as this one, where vague terms like “meaning” and “interpretation” are being bandied around, it is enormously useful to clarify exactly what the premises are of each argument and thus determine where precisely the points of disagreement occur. For example, it’s my impression that most nonoriginalists actually buy what Solum calls “the fixation thesis,” even though, as you note, most would be unwilling to concede that. In fact, I think most might not even *realize* that. Clarifying this point of agreement would show precisely where the differences are–whether the semantic meaning of the text of the Constitution binds us, and if not, what supplies the meaning of the rules that *do* bind us. If the answer to the latter question is some sort of grab-bag, it’s incumbent upon the theorist to develop a story explaining how a judge’s ability to determine the meaning of those rules (which is not supplied by the semantic meaning of the text) is constrained somehow, or why it’s OK that it’s not constrained. My general impression is that those theories are usually explained at somewhat too high of a level of generality, and Solum’s article is attempting to bring some precision to the exercise. That strikes me as a useful change, even if it turns out no one else accepts the invitation.
As a side note, I think the “fixation thesis” can actually be challenged — I took a stab at it here: http://www.concurringopinions.com/archives/2008/03/the_constitutio_2.html — and one thing that Solum’s article (book?) does is make clear that this is an early fork in the road on the way to nonoriginalism, at which a choice must be made.
Posted by: Bruce Boyden | Feb 8, 2010 1:48:05 PM
Solum gives an Article-VI-based defense of the normative legal relevance of original meaning, though, in his Contribution Thesis.
Posted by: Chris | Feb 8, 2010 1:41:41 PM
This post reminds me of a paper that Ethan Leib wrote a little while back with the title “The Perpetual Anxiety of Living Constitutionalism,” in which, if I remember rightly, Leib argued that what (still — even in the “new” originalist era) separates living constitutionalists from originalists is that originalists *privilege* original public meaning. Leib’s claim I think was that while living constitutionalists consider original meaning, they do not give it any greater weight (and may give it less weight) than other factors that (ought to) impact legal meaning. That move ends up preserving the living constitutionalist/new originalist divide to an extent that sometimes can get lost.
Posted by: Marc DeGirolami | Feb 8, 2010 12:00:02 PM