This is the fourth post in a series (Part One, Part Two Part Three Part Four Part Five Part Six Part Seven Part Eight Part Nine) that replies to Stephen Griffin's perceptive and illuminating comments about Semantic Originalism at Balkinization. In this post, I reply to the fourth of Griffin's comments. Quotes from Griffin are in ordinary roman type, indented, and black. My discussion is in blue.
The primary aim of Semantic Originalism is the develop an account of the linguistic meaning (or semantic content) of the Constitution. One component of that account is the fixation thesis--the claim that the semantic content of particular provisions of the Constitution are fixed when they are framed and ratified. A second component is the theory of clause meaning--a theory that uses Paul Grice's notion of "sentence meaning" to provide foundations for the view that the linguistic meaning of the Constitution is the original public meaning--the ordinary meaning of the words and phrases.
Griffin's fourth question is a good one: can we disagree about the linguistic meaning of the Constitution. Here is the way Griffin put the question:
4. Can there be disagreement over semantic content? I presume Solum thinks so because he hard-wires a distinction between clear and vague constitutional clauses into his analysis. Some clauses have clear semantic content such as the one limiting each state to two senators (and that’s not the baseball team!). Others, including most of those involved in litigation, are vague. He draws a further distinction between interpretation and construction. Interpretation determines meaning for non-vague clauses and construction does the same for vague clauses (relying on adoption context to determine meaning). But can there be disagreement over whether a clause is vague or not? Some framers might have believed the enumerated powers and the necessary and proper clause were not vague. I understand that vagueness for Solum is a matter of stipulation. But I wonder how far this can take us in understanding the Constitution if we start stipulating clauses as vague that the framers thought were clear and vice-versa. Also, I understand that the meaning of “interpretation” and “construction” are stipulated, but I don’t think they match practice. Whether this is a problem is hard to say, how construction works remains to be worked out.
My answer will proceed in stages, but let me begin with the basics. Yes, we can disagree about the linguistic meaning or semantic content of the Constitution. But when we disagree about that we are disagreeing about linguistic facts. In principle, there is a fact of the matter about what the linguistic content is. In practice, it is possible that we lack epistemic access to the crucial facts, resulting in persistent disagreement. That's the general and abstract answer to Griffin's question, but put that way the answer is likely to be misleading. Let's get clear:
First, it is crucially important that we distinguish between two kinds of disagreement corresponding to the distinction between interpretation (discovery of the linguistic meaning of the text) and construction (translation of the semantic content into rules of constitutional law). There is a fact of the matter about semantic content, but when that semantic content is itself vague, interpretation makes its exit and contruction enters the scene. When we disagree about constitutional constructions, our disagreements are not about linguistic facts. Disagreements about construction are legal and normative.
Second, Griffin mentions ambiguity and vagueness. The distinction between these two concepts is fundamental, and they produce different kinds of disagreement. Vagueness attaches to words, phrases, and clauses that have borderline cases. The word "tall" is vague, because there is no bright line that separates persons (or other things) that are tall from those that are not. We've just discussed the kind of disagreement that resutls from vagueness, but what about disagreement that results from ambiguity. Ambiguity attaches to a words, phrases, or clauses that have more than one sense. The word "cool" is ambiguous: it can mean "hip," "low in temperature," or "of even temperment." Most constitutional ambiguities can be resolved by examing the publicly available context of the ambiguous language--that includes the whole text, the basic facts about framing and ratification, and so forth. But it is possible that some ambiguity will remain after all the facts about context have been examined. In that case, there may be persistent disagreement.
With the first and second points in mind, I just want to clear up a possible misunderstanding. Recall that Griffin wrote:
Interpretation determines meaning for non-vague clauses and construction does the same for vague clauses (relying on adoption context to determine meaning).
Griffin implies that we use context to resolve the meaning of vague clauses, but that implication is incorrect. The idea is that the meaning is vague. When you know the meaning of the term "tall," you know that tall is vague. The context of utterance doesn't turn "tall" into a bright-line concept. This point is fundamental to the interpretation-construction distinction. When the semantic content is vague, then meaning runs out and normative or legal rules of construction are required to apply the vague language to borderline cases.
Third, Griffin asks:
But can there be disagreement over whether a clause is vague or not? Some framers might have believed the enumerated powers and the necessary and proper clause were not vague.
The answer is yes, there can be disagreements about whether a word, phase, or clause is vague, and even if there is agreement about that, there can be disagreement about the extent of vagueness.
Fourth, what about Griffin's examples? What if there was disagreement about the question whether the "necessary and proper clause" was vague? This is a great example, but a complicated one--too complicated for a complete answer in this blog post. Let me quickly sketch two scenarios that may be helpful:
Scenario One: The framers deliberate chose an ambiguous formulation for the "necessary and proper" clause, and that ambiguity would have been recognized by contemporaneous audience (ratifiers, the general public, etc.). This is a special case of what might be called "compromise ambiguity." In this special case, interpretation yields semantic content that is itself ambiguous, and constitutional construction is required in order to resolve the ambiguity. One of the two senses of "necessary and proper" might be vague, and the other might not, but in the special case of compromise ambiguity, the choce between these two senses requires construction and not interpretation.
Scenario Two: Some framers intended the clause to be vague and other framers intended not to be vague, but the public meaning of the clause was one or the other, not both. If this is the case and if we have epistemic access to the facts that resolve the vagueness, then interpretation will resolve the question. There is a linguistic fact of the matter about the question whether the original public meaning is vague or not.
Fifth, Griffin writes:
I understand that vagueness for Solum is a matter of stipulation. But I wonder how far this can take us in understanding the Constitution if we start stipulating clauses as vague that the framers thought were clear and vice-versa.
My apologies to the readers of "Semantic Originalism" for the lack of clarity that gave rise to this confusion. The question whether the semantic content of a constitutional provision is vague is a question of linguistic fact. The word "tall" is vague because the patterns of usage of the natural language English make it vague. No stipulation can make a word vague. Of course, if we are discussing hypotheticals or making arguments, we can stipulate (for the sake of argument or of the hypothetical) that we will accept that a word is vague. And once we have determined that a word is vague as a matter of linguistic fact, then it follows as a matter of the stipulated definitions of "interpretation" and "construction" that the resolution of the vagueness will require construction.
Let me be very clear: if the linguistic practice at the time of constitutional utterance reveals that a particular clause was vague, then the original public meaning is vague. If the linguistic practice at the time of constiutional utterance reveals that a particular clause was not vague but instead created a "bright line," then the original public meaning is given by the bright line. Vagueness vel non is determined by linguistic facts.
Sixth, Griffin writes:
Also, I understand that the meaning of “interpretation” and “construction” are stipulated, but I don’t think they match practice.
Several points here:
First, Griffin is correct that the interpretation-construction distinction is stipulated. That is, the meaning of the term "ambiguous" and the meaning of the term "interpretation" is stipulated. Because these two words are ambiguous, clarity of discussion requires that their meanings be stipulated when they are used in theoretical discourse.
Second, the use of the interpretation-construction distinction is not an invention of the New Originalists. The distinction is rooted in the common law and traditional legal scholarship, most prominently in contract law. William Leiber employed the distinction in 1837. Corbin relied on the interpretation-construction distinction in his influential 1919 article, Conditions in the Law of Contract, and Williston adopted a similar distinction. Historically, the interpretation-construction distinction has played a role in the law of trusts and wills, patent law, choice-of-law, and other fields of law. Although these usages vary somewhat, they all focus on the distinction between "interpretation" as the discovery of meaning, and "construction" as the determination of legal effect.
Third, the position take by Semantic Originalism is that the interpretation-construction distinction is essential to clarity in constitutional theory. The distinction is not arbitrary: it reflects the real difference between determination of the linguistic meaning of the Constitutional text and the translation of that semantic content into the legal content of the rules of constitutional law.
Fourth, nonetheless the use of the terms “interpretation” and “construction” to denote the real distinction is a matter of the conventional use of language—in this case, the specialized conventions of legal practitioners and academics. Although the interpretation-construction distinction has deep roots in usage by courts and scholars in a variety of contexts and in contemporary debates about constitutional theory, the distinction could be expressed in other language. For example, we might talk about two stages of interpretation: stage one could be the determination of linguistic meaning and stage two could be the translation of linguistic meaning into legal rules. Or we might distinguish linguistic interpretation and legal interpretation. We can imagine a variety of similar terminological moves. So long as the distinction and terminology are articulated clearly, there is no substantive reason to insist on any particular terminology.
Fifth, given the long legal pedigree and current usage by New Originalists, however, clarity can only be achieved if those who wish to use alternative terminology acknowledge the interpretation-construction distinction when they discuss the work of New Originalists, and then explain their terminology in light of this distinction. Another possibility is to attempt to do without any distinction at all and use the unadorned word “interpretation” to refer to both the discovery of linguistic meaning and the development of legal rules that are based on that meaning, with marking the distinction in any systematic way. This terminological alternative requires the utmost care in order to avoid confusion. If the word “interpretation” is used this way in discussions of the New Originalism and the interpretation-construction distinction is not acknowledged and discussed, the result will be substantive misrepresentation of the content of New Originalist theories.
Sixth, failure to observe the substance of the distinction between semantic content and legal content is bound to produce conceptual confusion. Even more distressing would be the possibility that the distinction would be deliberately obscured so as to obviate the need to argue that legal content (constitutional law) is distinct from semantic content (the linguistic meaning of the Constitution). For these reasons, responsible scholarship regarding the New Originalism should, at a minimum, address the interpretation-construction distinction in some meaningful way: the role of the distinction in New Originalist work should be acknowledged and the term “interpretation” should be defined or explicated in relationship to the distinction between semantic content and legal content.
Once again, I am extraordinarily grateful to Griffin for his questions. His next question concerns the relationship between Semantic Originalism and Dworkin's use of the concept-conception distinction. Part Five of this series will address that topic.
