Larry Solum has an important new post on the New Originalism responding to Brian Leiter and my recent posts on the subject. Semantic and Normative Originalism: Comments on Brian Leiter’s “Justifying Originalism” It is far too long and complex to summarize here, and I cannot even find a single excerpt that captures its entire analysis. Still, here is an excerpt that might get you to read it as anyone interested in originalism should do:
[snip]
The Case for Semantic Originalism
[snip] The meaning of an utterance is simply a fact about the natural world. For this reason, semantic theories might be called “descriptive” or “positive.” Simplifying greatly, we might say that there are two leading theories of legal meaning in general, which we might call “textualism” and “intentionalism.” These theories of natural meaning correspond, more or less, to the distinction made by philosopher Paul Grice between “sentence meaning” and “speakers meaning.” In the context of constitutional theory, textualism is the view that the natural meaning of the constitutional text is its conventional semantic meaning—the meaning that the words and phrases would have conveyed to the public at the time the relevant portion of constitutional text was drafted, proposed, and adopted. Borrowing from Grice, we can call this sort of meaning “clause meaning.” Similarly, the constitutional version of intentionalism is the view that the natural meaning of the constitutional text is meaning intended by the authors (framers and/or ratifiers) of the relevant constitutional provision. Following Grice we might refer to this kind of meaning as “framers meaning.”
From what I have said so far, one might infer that we can choose between framers meaning and clause meaning, and that this choice would have to be justified on normative grounds. But this is not, in fact, the case. That is because the meaning of legal texts in general (and the Constitution in particular) cannot be understood as speakers meaning (or framers meaning). For speakers meaning to be possible, the audience of an utterance must have knowledge of the speaker’s intentions and the speaker must know that the audience has this knowledge—call this the “reflexivity condition.” But in the case of legal texts like judicial opinions, statues, and constitutions, the reflexivity condition is not met. This is most obviously true in the case of the United States Constitution, where the framers believed the evidence of their intentions (the proceedings of the Philadelphia Convention) would be kept secret. Recognizing that there are conditions under which speakers meaning is impossible, Grice recognized the existence of sentence meaning—the meaning that would be conveyed by the conventional semantic meaning of the expressions that constitute an utterance. In the context, of the Constitution, this is the “clause meaning” or the conventional semantic meaning of the constitutional text. In other words, “clause meaning” is the “original public meaning” of the New Originalism.
Of course, there might be other semantic theories of constitutional meaning. For example, someone might argue that the semantic meaning of the clauses is the conventional semantic meaning they have at the time of application—call this “contemporary public meaning.” For example, the phrase “domestic violence” might have referred to “rebellion or insurrection” at the time the Constitution of 1789 was adopted, but it could refer to “spousal, child, and elder abuse” today. Or it might be argued that the meaning of the Constitution is whatever meaning a judge wishes to assign to it—on this theory, the Constitution is an empty vessel into which judges can pour any semantic content they wish. Or one might be a semantic skeptic, and deny that there is any semantic meaning at all. Although I won’t make the arguments on this occasion, even a moment’s reflection reveals that there are serious problems with contemporary public meaning or judge’s meaning as semantic theories. Semantic skepticism faces even more serious problems, including the obvious one that it is self-effacing because it implies that it is not even meaningfully assertable.
How might one argue against semantic originalism? There are at least three strategies. First, one could argue for some particular alternative semantic theory. Second, one could argue for semantic pluralism—the view that the constitutional text has a “meta-ambiguity” between the meanings assigned to it by alternative semantic theories. Third, one might argue that the constitutional text lacks semantic content at all—that despite the superficial resemblance of the text to a meaningful utterance, the Constitution simply does not mean anything at all. Perhaps there are other strategies. But any argument that clashes with semantic originalism must assume a stance either about or from within a semantic theory. What won’t work is to make a normative argument against semantic originalism. Normative arguments address a different question, and the attempt to argue against semantic originalism on the basis of a normative claim involves a category mistake.
Reframing the Normative Debate
The truth of semantic originalism, by itself, has no normative implications. Even if the semantic content of the constitution is the original public meaning, it could be the case that constitutional practice should deviate from that meaning. For example, one might argue that precedent should trump the original public meaning. Or one might argue that the difficulty of constitutional amendment so undermines the democratic legitimacy of the Constitution that the political branches are justified in “amending constructions” that give the text new and different semantic content. Or one might believe that the constitution is so undesirable or unjust that judges are justified in ignoring the semantic content of the constitution and deciding cases on the basis of their own beliefs about what the Constitution should have provided.
[snip] In a wide variety of legal contexts, the notion that officials are obligated by the semantic content of legal texts is simply not controversial. Quite the contrary, our usual assumption is that in a reasonably just society, the semantic content of valid legal texts creates obligations for judges, other officials, and citizens. The corresponding obligations of fidelity to the law attach to the semantic content and not the mere syntactic form of the texts.
Again, I should be very clear. I am not claiming that I have produced a normative argument for originalism. The aim of this discussion of the normative case for originalism has been very modest. My goal is to put the normative question in a new frame. Leiter is right to observe that many originalists—but not Balkin, Barnett, or Whittington—seem to beg the normative question. If I might be allowed to restate Leiter’s observation in my own terminology. Many originalists seem to believe that by producing arguments for semantic originalism, they have provided a prima facie normative case. By reframing the debate, I think we can see how they made this mistake. These originalists believed that it was obvious that the correct theory of constitutional meaning entailed normative conclusions. I believe that was a mistake. “Obviousness” is in the eyes of the beholder. Once the normative claims of originalism are questioned, an argument must be produced.
But what is good for the goose is good for the gander. Nonoriginalists have their own burdens of persuasion and production. If nonoriginalists want to admit the truth of semantic originalism, but deny its normative force, they should do so explicitly. If they want to contest the truth of semantic originalism, they should lay their arguments on the table and make them explicit. If they want to deny the normative significance of the semantic content of the Constitution, but claim that the semantic content of other constitutional texts has normative authority and creates obligations of fidelity, they should produce the arguments that justify this distinction. And if they want to argue that some nonoriginalist theory of constitutional interpretation is justified on normative grounds, they need to produce the arguments.
Read the whole thing.