Putting Meaning in its Place: Originalism and Philosophy of Language

Abstract

Originalism has become the prevailing approach to constitutional interpretation, having legal scholars as diverse as Justice Antonin Scalia and Ronald Dworkin among its advocates. Current originalists advocate fidelity to constitutional text, but disagree about what such fidelity requires. To settle these disagreements, it seems natural to expect originalists to employ (at least implicitly) conclusions and arguments from philosophy of language. Ronald Dworkin does just this to argue against other originalist interpretations and to advocate what he calls a moral reading of the Constitution.

I argue that Dworkin's arguments for his moral reading of the Constitution are inconclusive because (and to the extent that) they employ unwarranted philosophical assumptions about how to interpret texts. As a result of these deficiencies, the originalist position outlined by Dworkin unexpectedly collapses into the position of his most vociferous originalist rival, Justice Scalia. My aim is to show not only that Dworkin's argument leaves Scalia's method of constitutional interpretation unscathed, but also that Scalia's method should be the starting point for anyone concerned with fidelity to the Constitution.

Keywords: constitutional interpretation, law, philosophy of language, Dworkin, Scalia, meaning, originalism, death penalty, eighth amendment, cruel and unusual punishment