The Constitution in Superposition: Interpreting the Federal Constitution's Elegant Specificities Through Farsighted Originalism

Abstract

Professor Semeraro's essay contends that the traditional debate between originalism and living constitutionalism is a charade because American constitutionalism commits all interpreters to both methods.

Originalism comports with American society's commitment to the written rule of law, not men. Living constitutionalism resonates with the tradition of self-government embodied in the ideal of "We the People." The on-going debate over the Constitution's majestic generalities in fundamental-rights-defining cases thus amounts to the search for the proper accommodation between originalism and living constitutionalism rather than a choice between them.

Professor Semeraro proposes a new method of constitutional interpretation – farsighted originalism – for cases dealing with specific constitutional clauses regulating intra-governmental conflicts. Scholars and judges have long assumed that these specific clauses would prove easier to interpret. But in the last two terms, bitterly divided Courts have struggled with them. Using an analogy to quantum mechanics, Professor Semeraro shows that the Constitution's specific clauses should be interpreted through the problem-solving rubric embodied in the clause. This rubric creates a superposition of potential original meanings, all of which the founding generation – in a meaningful sense – held, even though they may not have considered all of the circumstances to which the rubric might apply. In this way, the meaning of the Constitution remains fixed, as originalism requires, while simultaneously living to resolve new problems.

Keywords: Constitution, originalism, semantic originalism, living constitutionalism, Recess Appointments Clause, Elections Clause, original public meaning

JEL Classification: K19