Online research in philosophy

I deploy the sense-reference distinction and its kin from the philosophy of language to answer the question what in constitutional interpretation should, and should not, be able to change after founders adopt a constitutional provision. I suggest that a constitutional expression's reference, but not its sense, can change. Interpreters should thus give founders' assessments of reference only Skidmore-level deference. From this position, I criticize the theories of constitutional interpretation offered by Raoul Berger, Jed Rubenfeld, and Richard Fallon, and apply the theory to whether the Fourteenth Amendment forbids racial segregation in public schools.

The new originalism is the latest de riguer theory of constitutional interpretation. No longer concerned with the majoritarianism or judicial restraint that were the hallmarks of Borkian/Bergerian originalism, the new originalists blithely dismiss precedent as having little, if any, constraining force and contend that the countermajoritarian difficulty is of little concern (though they are not alone in this regard). Parallel to this, there is little concern in the new originalist camp with judicial activism. Suffice it to say, it is not a modest theory. The thesis of this short paper is that perhaps that the new originalists suffer from a form of cognitive dissonance. That is to say, one wonders if the new originalists are not dealing in constitutional reality and are instead rationalizing a constitutional vision that does not square with history or the empirical evidence. It is well-documented that originalists on the bench are far from consistent in their application of originalism. Worse yet, when the justices (both liberal and conservative) utilize originalists arguments, ideological cherry-picking inevitably follows. More than that, the new originalists seem uniformly resistant to recognizing that constitutional law does not happen - and cannot happen - in the original public meaning vacuum they advocate. It is more profitable to understand decisions as the result of the historical and cultural zeitgeist the justices find themselves in. In fact, it is ironic that originalism itself is rather plainly a product of the (partial) triumph of the New Right political movement! If I am right about this, I think it is time for the new originalists to explain how their constitutional vision fits into our historical and empirical reality. If they cannot reconcile their theory with this, perhaps it is time that the new originalists admitted their dissonance and developed some intellectual modesty.

Semantic originalism is a theory of constitutional meaning that aims to disentangle the semantic, legal, and normative strands of debates in constitutional theory about the role of original meaning in constitutional interpretation and construction. This theory affirms four theses: (1) the fixation thesis, (2) the clause meaning thesis, (3) the contribution thesis, and (4) the fidelity thesis.

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.

The clause meaning thesis claims that the semantic content 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.

We can summarize semantic originalism as a slogan: The original public meaning of the constitution is the law and for that reason it should be respected and obeyed. The slogan recapitulates each of the claims made by semantic originalism, but it is potentially misleading because it does not clearly distinguish between the semantic claims made by the fixation and clause meaning theses, the legal claim made by the contribution thesis, and the normative claim made by the fidelity t

Constitutional interpretation is problematic because it can be difficult to distinguish legitimate interpretation from illegitimate change. The distinction depends largely on what a constitution is. A constitution, like any other law, necessarily has a meaning, which pre-exists judicial interpretation: it is not a set of meaningless marks on paper. Any plausible constitutional theory must offer an account of the nature of that meaning. In doing so, it must address two main questions. The first is whether the meaning of the constitution is given solely by its words, or also by additional evidence of underlying intentions, purposes or values. The second question is whether, in either case, its meaning is determined by the original meanings, intentions, purposes or values of the founding generation, or by contemporary meanings, intentions, purposes or values. This question divides so-called 'originalists' from 'non-originalists'. This article discusses all these alternatives, and the main arguments for and against them. It is subtitled 'Originalism' because it defends a moderate version of that position; however, it is argued that this is equivalent to a moderate version of non-originalism.

The essays in this volume, which includes contributions from the flag bearers of several competing schools of constitutional interpretation, provides an ...

Much has been written about originalism - the idea that the Constitution should be interpreted according to its original meaning. This essay goes beyond previous works by asserting that originalism may be nearing its demise. Ironically, the beginning of the end of originalism may have been prompted by the Supreme Court's decision in District of Columbia v. Heller, marking the first time that a majority of the Court signed onto an opinion emphatically taking an originalist slant. Heller may represent the apogee of originalism and, because it exposes the fundamental flaws of originalism, may also mark the beginning of its decline. This essay further differs from previous works concerning originalism. First, the essay shows that originalism is a radical departure from the Supreme Court's well-established jurisprudence of a living Constitution. From its very inception, constitutional law has been a dynamic process of creativity and the vast majority of Supreme Court decisions interpreting the Constitution have been non-originalist in their methodology. Originalism cannot explain the large body of constitutional doctrine that has developed over the years since the Constitution was adopted. The essay also focuses on fundamental flaws of originalism neglected in other works. At the most fundamental level, originalism misperceives the nature of history by presuming that it has an objective meaning that can be discovered through assiduous study of ancient material. However, the belief in a hard core of historical facts existing objectively is an illusion. The meaning of the Constitution does not reside in the past, and any attempt to ascertain the original meaning of the Constitution necessarily entails reconstructing the past in one's mind. Originalism, therefore, cannot eliminate the necessity of making value judgments to interpret the Constitution. Rather, it obscures the policy-making function of constitutional interpretation by pretending that the meaning of constitutional provisions can be recovered from historical annals. There is also a serious question of whether past understanding of the Constitution can be meaningfully transposed from one generation to another. Whatever the original meaning of the Constitution may once have been, it was formed in the context of a past reality and in accordance with past attitudes, both of which have changed considerably since the Constitution was drafted. Blindly following the presumed original meaning of constitutional provisions formulated in reaction to past conditions and attitudes that have long since changed is dysfunctional, an instance of cultural lag whereby the meaning of the Constitution is left dormant while the world around it changes. Heller displays all of the flaws of originalism. It succumbs to the illusion that the original meaning of the Second Amendment has an objective existence that can be recovered by studying the past. In falling prey to this illusion, Heller perpetrates a pretense of ob

Most of the constitutionalized language rights in Canada have received a large and liberal interpretation. In contrast, the constitutional right to use either official language in the courts has been categorized as a "political compromise right" and interpreted narrowly to the point of being ineffective. Recently, a majority of the Supreme Court rejected the political compromise doctrine in R. v. Beaulac. It is hoped that this decision will result in a broader interpretation of the right to use English or French before the courts. A restrictive interpretation of the right, however, is also dictated by its having been characterized as a negative liberty, and this aspect of the past case law was not overruled by Beaulac. In part, the negative liberty interpretation of the right to use either official language in the courts stems from the fear that to adopt a positive right approach would result in an irresolvable conflict between interacting holders of the same right. A positive interpretation of the right is possible, however, if corresponding duties are imposed not on individuals, but on the state. In order to support a broad and positive interpretation of language use rights in the courts, as well as in the provision of government services, what is needed is an understanding of their purpose that goes beyond effective communication, that is, not one based on a natural justice rationale. To counter the tendency to construe the purpose of language rights in wholly instrumental terms, we need an account of such rights that recognizes the intrinsic value to a minority official language community of the use of its language. While Beaulac moves us significantly in the right direction, the Supreme Court failed to articulate fully why the use of a particular language is important to a community.