176 Pages Posted: 16 Apr 2008 Last revised: 25 Nov 2008
Date Written: November 22, 2008
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 thesis.
Part I introduces the four theses. Part II is entitled An Opinionated History of Constitutional Originalism, and it provides the context for all that follows. Part III is entitled Semantic Originalism: A Theory of Constitutional Meaning, and it lays out the case for original public meaning as the best nonnormative theory of constitutional content. Part IV is entitled The Normative Implications of Semantic Originalism, and it articulates a variety of normative arguments for originalism. Part V is entitled Conclusion: Semantic Originalism and Living Constitutionalism, and it explores the broad implications of semantic originalism for living constitutionalism and the future of constitutional theory.
This draft was uploaded on November 22, 2008 and it replaces all prior versions. Two companion essays, "A Reader's Guide to Semantic Originalism and a Reply to Professor Griffin" and "District of Columbia v. Heller and Originalism" are also available on SSRN.
Keywords: consitution, Supreme Court, constitutional law, originalism, living constitutionalism, semantics, pragmatics, Grice, Magic Eight Ball, Silly Putty, Godzilla
Suggested Citation: Suggested Citation
Solum, Lawrence B., Semantic Originalism (November 22, 2008). Illinois Public Law Research Paper No. 07-24. Available at SSRN: https://ssrn.com/abstract=1120244 or http://dx.doi.org/10.2139/ssrn.1120244
By Orin Kerr
By Brian Leiter