'This Constitution': Constitutional Indexicals as a Basis for Textualist Semi-Originalism
68 Pages Posted: 19 Aug 2008 Last revised: 26 Aug 2009
Date Written: August 14, 2008
Debate over proper methods of constitutional interpretation is interminable, in part because the Constitution seems not to tell us how it should be interpreted. I argue here that this appearance is misleading. The Constitution repeatedly refers to itself with the phrase "this Constitution," and claims to make itself supreme law of the land. Debates over what should be supreme for constitutional interpretation can be resolved if, but only if, we have a sufficiently detailed understanding of what the Constitution is. I consider seven possibilities for what might be the interpretively-supreme "Constitution": (1) the original expected applications; (2) the original ultimate purposes; (3) the original textually-expressed meaning or Fregean sense (the alternative I favor); (4) a collection of evolving common-law concepts; (5) a text expressing meaning by today's linguistic conventions; (6) a collection of moral concepts refined through an evolving tradition of moral philosophy; and (7) a collection of non-binding recommendations. Resolving between these alternatives is possible if, but only if, we know that "this Constitution" means. Functional or normative arguments about methods of constitutional interpretation are therefore relevant only insofar as they are probative of the meaning of the actual Article VI.
The phrase "this Constitution" on its own is not perfectly perspicuous; the "this Union" clause in Article IV shows that "this" can refer to entities that are neither composed of text nor fixed and unchanging. It is not immediately clear what event - what "constituting" - the word "Constitution" refers to. Canvassing in detail the indexical language of the federal and state Constitutions, I argue that the Constitution is composed of language whose meaning is fixed at the time of the Founding. The close textual relationship of "this Constitution" to forms of "here" and to "enumerate" and explicit references in state constitutions to "this Constitution" appearing on parchment, including bits of language, and doing things "expressly" all point toward a Constitution that is composed of language, and so to textualism. The use of "now," the distinction in the Preamble between "ourselves" and "our posterity," the specification in the Preamble and Article VII of ratifying conventions as the constitutional author, and the reference to "the time of the Adoption of this Constitution" all point toward a non-intergenerationally-authored constitution that speaks at the time of the Founding and is historically fixed.
Keywords: Supremacy Clause, Constitutional Ontology, Textualist Semi-Originalism, Textualism, Originalism, Constitutional Theory, Constitutional Interpretation, Theory of Original Sinn
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