This post is slightly unusual, covering as it does a slightly recondite issue in legal philosophy rather than something in ethics/religion which is the norm for this blog. Nevertheless, it has great personal significance for me since I teach legal philosophy and work in a law school. Also, I think it is an interesting topic irrespective of its recondite nature.
So what is this topic that I speak of? Many living in the US will be aware of the ongoing, often-heated, debate over the correct interpretation of the constitution. Since roughly the late 1970s (although one can find precursors before that) there has been a movement calling for an originalist interpretation of the constitution. This movement is typically associated with the conservative side of the political debate, although more recently some liberals have endorsed a form of originalism (Jack Balkin being the exemplar of this).
The doctrine of originalism has gone through a number of transformations over the years. It started off being about interpreting the constitution in light of the intentions of the framers, before eventually settling on its most stable and popular form which calls for interpreting the constitution in light of its original public meaning. By far the most sophisticated and compelling defence of this brand of originalism can be found in the work of Lawrence Solum.
Solum defends something he calls “semantic originalism” which is a partly normative, partly semantic interpretive theory. In this post, I want to outline some of his basic arguments for this position. I must confess, however, that I will be relying on a slightly dumbed down version of those arguments, which can be found in Solum’s debate-book with Robert Bennett. The full version of Solum’s argument can be found in his paper/monograph “Semantic Originalism”. I doubt I’ll cover that on the blog though, since it is quite a dense piece of work (in the best possible sense of the word “dense”).
The post will be divided into three parts. The first will outline the four central theses of Solum’s semantic originalism and will present the basic argument for that position. As will become clear, the theory has a normative and a semantic component to it. The remainder of the post will focus on the semantic component. To this end, the second part will look at one of Solum’s arguments for this component, something I dub the constitutional communication-argument. While the third part will look at another argument, which I dub the absurdity argument.
1. Semantic Originalism
Solum’s unique brand of originalism centres on four interlocking, though distinct theses. They are:
The Fixity Thesis: The semantic content of the constitution is fixed at the time of ratification.
The Clause-Meaning Thesis: The semantic content of the constitution at the time of ratification was the original public meaning or original conventional meaning of the clauses contained within. (There are four qualifications of this thesis which I shall not discuss at length here, they cover things like the possibility that new terms were created by stipulation within the constitution, and that legal terms of art were adopted by the constitution.)
The Contribution Thesis: The semantic content of the constitution contributes to, but does not fully determine, the application of the law.
The Fidelity Thesis: We have good reasons to affirm, or be loyal to, the semantic content of the constitution.
Solum qualifies and develops each of these theses at considerable length. Of necessity, I will be much briefer. Broadly speaking, the first two theses constitute the “semantic” component of Solum’s theory because they both make claims about the meaning of the clauses contained within the constitution. By contrast, the latter two theses would appear to constitute the “normative” component of Solum’s theory because they make claims about the kind of legal order we ought to be committed to.
Admittedly, the contribution thesis is not obviously normative in nature. It seems more to be making a point about how the law works: legal rules have a semantic content which is important, but which does not fully determine the kinds of institutions or legal structures we should construct out of those rules. This is because meaning is ambiguous, open to multiple applications, depending on the circumstances. Despite this, I take it that the contribution thesis is still part of the normative case for originalism because it tries to reassure certain critics of that position. Critics will argue that originalism, if taken seriously, will turn the constitution into a straitjacket (or a “suicide pact”), something which cannot be sustained in the face of a ever-changing and evolving society. But the contribution thesis suggests that this need not be the case. Because there is a gap between the interpretation of the constitution (which depends on semantic content) and the application of the constitution (which depends on interpretation and more), there is some room for flexibility and responsiveness. This gap is something that Jack Balkin has run with in his book Living Originalism, which tries to square the circle between originalism and living constitutionalism.
Combining the semantic and normative components, we get a very simple argument in favour of semantic originalism:
- (1) We ought to interpret the constitution according to its semantic content.
- (2) The semantic content of the constitution is fixed by the original public meaning of its clauses.
- (3) Therefore, we ought to interpret the constitution according to the original public meaning of its clauses.
I shan’t discuss the defence of premise (1) in this post. The reader is free to speculate and comment as they see fit. I shall, however, discuss two of Solum’s arguments in favour of the second premise. The first of those arguments comes from considering the nature of constitutional communication. The second is effectively a reductio ad absurdum of the leading alternative theory, living constitutionalism. Both are taken from pgs. 13-17 of Constitutional Originalism.
2. The Constitutional Communication Argument
Laws can be viewed as speech acts, as attempts to do things with words. After all, a law is a written or otherwise symbolically-encoded rule that sets out demands, imperatives, commitments and so forth. Speech acts have conditions of success associated with them. Those conditions of success relate to both the semantic content of the act, as well as its purpose (or, to use a fancier term, its illocutionary point).
Consider an ordinary conversational communication between two people. The first, the Speaker, is trying to perform a speech act. In this instance, the speech act is a request. The Speaker asks the Listener to “Pass the chalk”. In order for the request to be successful, the Listener must understand both the point of the speech act and as well as its semantic content. How is this possible? The standard Gricean analysis holds that this is possible when the listener understands the speaker’s intentions. In other words, when the speaker refers to “chalk”, the listener knows which object in the world the speaker is referring to; and when the speaker says “pass me”, the listener knows which actions he or she is expected to perform. Furthermore, in order for the request to be fully successful, there must actually be chalk in the room that the listener can pass to the speaker. So the Gricean analysis of meaning effectively reduces meaning to knowledge of a speaker’s intentions.
This has an interesting consequence when applied to the ordinary conversational context. Obviously, words like “chalk” and “pass” have conventional meanings — meanings that are understood and recognised by most people in society. The speaker in our hypothetical conversation relies upon those conventions in making his/her request. However, in that setting, the conventional meaning is not necessary for successful communication (though it may often be sufficient). Imagine, for instance, that the request for chalk took place in a room with a whiteboard and a marker, but no chalk. In that case, the listener would probably be able to guess that the speaker really intended for them to pass the marker (they could ask a clarifying question if needs be). So the mere fact that the conventional meaning of “chalk” didn’t apply to the actual situation in the room, would not imply that a successful communication could not take place. All that matters is knowledge of speaker’s intentions.
So much for the ordinary conversational context. What about the context in which legal speech acts are made? Solum argues that this context is so radically different from that of everyday conversation that the Gricean analysis cannot apply. Legal texts, such as constitutions, have multiple authors (multiple speakers) all of whom may have had different, perhaps inconsistent, intentions in mind when they performed the speech act (i.e. drafted and ratified the constitution). Furthermore, unless they make some public record of their intentions, speculation and inference will be the only way to figure out what they may have intended. Both of these features makes it very difficult for listeners to know what the speaker’s intention was in the case of legal texts. What’s more, the authors would have known that this was the case, so they couldn’t have honestly expected people to interpret those texts in light of their intentions. They would have expected them to focus on original public meaning.
Another analogy, proposed by Solum, can be used to underscore this point and to endorse the originalist approach to interpretation:
Suppose you wanted to send a message in a bottle and thereby successfully communicate with an unknown reader, perhaps in a distant land generations from now. You couldn’t rely on the reader’s knowing anything about you, your intentions, or the context in which you wrote the message. You would have to rely on the plain [i.e. public/conventional] meaning of the words you used and the rules of English syntax and grammar. Of course, those meanings and rules might change over time, so it would be a good idea for you to date your message: if the reader were interested enough, he or she could check his or her assumptions about the plain meaning of your text against historical evidence of linguistic practices (pg. 14-15).
The point is that legal texts, like constitutions, are akin to messages in a bottle. They are speech acts, but when they are made, their speakers cannot rely on knowledge of speaker’s intention when trying to make a successful communication. Instead, they must rely entirely on the conventional public meaning of the language used, at the time of the speech act. All of which suggests the following argument in favour of premise (1):
- (4) In order for a speech act to be successful (i.e. in order for its listeners to understand its content and its point) it must either: (a) rely on the conventional meaning of its contents at the time it was spoken; or (b) rely on the listener having epistemic access to the speaker’s intentions.
- (5) Legal speech acts (such as constitutions) have multiple authors (speakers) and an unknown and oftentimes temporally distant set of interpreters (listeners).
- (6) If a speech act has multiple speakers and an unknown and temporally distant set of listeners, it cannot depend on the listeners having epistemic access to the speakers’ intentions.
- (7) Therefore, in order for a legal speech act to be successful, it must rely on the conventional public meaning of its contents at the time it was spoken.
This gets us to premise (2), with some relatively minor, and easily reparable, slippage between (7) and (2). As you can see, the argument is normative in the sense that it assumes we want to have successful speech acts, but it is still primarily about what determines the semantic content of different kinds of speech act (in any event, the line between semanticity and normativity is a thin one and, somewhat ironically, how thin it is depends on what one understands by the term “normative”).
3. The Absurdity Argument
The preceding argument offers some reasonable grounds for thinking that the semantic content of a legal text depends on conventional meaning. This provides support for Solum’s clause-meaning thesis. But snuck into the argument at the last moment was support for fixity thesis too. While that support may be sufficient, additional support can be derived from a reductio ad absurdum of the opposing view, namely: that the meaning of a term in a text changes along with any changes in the conventional meaning of that term. Call this the “living meaning”-thesis.
Solum has a nice example he uses to motivate this reductio. It concerns the use of the word “deer”. Apparently, in the 12th C, the word “deer” was a general term used to refer to any four-legged mammal, not just the mammals that we would nowadays call “deers”. That is to say, the conventional meaning of the word “deer” has evolved over time. Now imagine that we have a text dating from the 12th C that uses the word “deer”. How are we, in the 21st C to interpret that text? If we adopted the living meaning-thesis, we would say that the text was referring to the kinds of four-legged mammal beloved by Santa Claus. But this would surely be absurd, or so the argument goes.
I should say: I have no idea whether this example correctly represents the linguistic conventions of the 12th C. I assume it does, but in some ways it doesn’t matter. Solum has another, purely hypothetical example, which also suggests that living meaning, at least when it comes to historical texts, is an absurdity. Consider the term “freedom of speech”. This has a broadly accepted connotation in politics and law right now. But suppose, in the future, linguistic practice shifts, and the term “freedom of speech” becomes street slang for a forced confession. One would hear criminals conversing with one another talking about how a police officer “freedom of speeched” them, and so forth. If we (in the future) have legal texts referring to “freedom of speech” that predate this shift in linguistic practice, should we interpret them to be referring to “forced confession”? Again, to suggest that we should seems absurd.
We can summarise these thoughts as a simple argument. The argument mentions only the deer-example but could easily be reformulated to include the freedom of speech one. It runs as follows:
- (8) In the 12th C the word “deer” was conventionally understood to refer to all four-legged mammals; over time the conventional meaning has shifted to a particular subset of four-legged mammals.
- (9) Suppose the living meaning thesis is correct.
- (10) Then we would have to assume that a 12th C text using the word “deer” was not referring to all four-legged mammals but only the particular subset that we nowadays apply that label to.
- (11) It is absurd to interpret a 12th C text in this manner.
- (12) Therefore, the living meaning thesis is false.
- (13) If the living meaning thesis is false, the fixity thesis must be true.
- (14) Therefore, the fixity thesis is true.
Although premise (13) looks slightly dodgy here — in that it assumes there are only two possible theories — I still find this argument mildly compelling. However, this may be due to the simplicity of the particular example. I doubt there is much reason to dispute this kind of interpretation of the word “deer” from a 12th C text, just as there isn’t much reason to dispute the interpretation of the phrase “domestic violence” in the US Constitution (hint: it doesn’t mean what you might think it means). The real controversy arises with the more general, evaluative and ambiguous phrases like “cruel and unusual punishment”. No doubt there were a limited number of things that the public to whom the Constitution was originally addressed deemed “cruel and unusual”, but how they might have applied that phrase isn’t quite the same thing as the meaning they attached to it. The meaning is quite abstract and general; the application might be narrow and context-specific.
In fairness, Solum is admirably aware of this point. Indeed, this is exactly what his contribution thesis is getting at: to say that the semantic content of the constitution was fixed at the time of its ratification, is not to say that the expected legal applications of that content, at the time of ratification, should fully determine the law. We can apply terms like “unreasonable search and seizure” to new technologies and circumstances, ones maybe not envisaged by the original public, because the semantic content of those terms is broader than the original expected application. That must be borne in mind at all times when evaluating the semantic originalism defended by the likes of Solum.
Okay, so that’s it for this post. Hopefully, this has been a decent enough overview of semantic originalism and the basic arguments in its favour. If you want to learn more, I would recommend the book Constitutional Originalism or Solum’s article “Semantic Originalism”.