Off-campus access
Using PhilPapers from home?
Click here to configure this browser for off-campus access.
- Lawrence B. Solum, Semantic Originalism.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 tIn my reading list | Discuss this article | Edit | Categorize |My bibliography
| Export citation | Other links: papers.ssrn.com | Scholar
Discussion of Lawrence B. Solum, Semantic Originalism
Nothing in this forum yet.
Similar books and articles
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 (...)
No categories
The dominant strain of constitutional interpretation in Canada holds both that originalist theories of constitutional interpretation are not a part of Canadian constitutional doctrine, and that this is a very good thing. The Canadian courts (and academy) fully subscribe to a theory of living constitutional interpretation. While living constitutional interpretation in Canada is most often defined in terms of its incompatibility with originalist interpretation, there has not been a meaningful engagement in Canada with contemporary schools of originalist interpretation. The originalism (...)
No categories
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 (...)
No categories
The purpose of this essay is two-fold. The first aim is to introduce the reader to Semantic Originalism - a version of the New Originalism that is fully articulated in a long article of that name. The reader's guide in Part II provides a very short summary and accessible guide to the argument of Semantic Originalism. The second aim is to provide access to an exchange between Stephen Griffin and myself in the Blogosphere. Griffin's eight questions and comments about Semantic (...)
No categories
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 (...)
No categories
The view (most prominently advocated by Justice Scalia) that original meaning entails the constitutionality of original practices has strong intuitive appeal and has been broadly assumed by originalists and nonoriginalists alike. But the position is mistaken. We suggest that a failure to distinguish between two different notions of meaning accounts for the position's wide currency. According to the first notion, the meaning of a term is roughly what a dictionary definition attempts to convey--the semantic or linguistic understanding necessary to use (...)
Despite their considerable ideological differences, "conservative originalists" such as Robert Bork and "progressive originalists" such as Michael Perry both divide the process of understanding into cognitive (or "objective") and normative (or "subjective") aspects. The determination of the original meaning of the Constitution is methodologically separated from the question how this predetermined meaning should be applied in a particular case. This places both conservative and progressive originalists squarely in the tradition of Romantic hermeneutics, which sought to overcome the uncertainty and imprecision (...)
No categories
The resurgence of the new "originalism" among conservative American law professors is an intellectual movement that fundamentally misunderstands philosophy of language and law. The central problem is that most constitutional words are what Wittgenstein called "family resemblance ideas." This means that they consist only of a cluster of ideas that can be carried forth or implemented in numerous ways and formats. For example, what "cruel punishment" means linguistically are those choices, X, selected from an array of options, any combination of (...)
No categories
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 (...)
No categories
What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structural provisions of the Constitution of 1789. Such proposals are conventionally understood as placing constitutional options on the table as real options for constitutional change. Normative constitutional theory asks the question whether (...)
No categories
