This is the Ninth and final post in my series replying to Stephen Griffin's thoughtful and illuminating comments about Semantic Originalism on Balkinization. In this post, I will summarize the series and make some remarks about what I have tried to accomplish in "Semantic Originalism."
"Semantic Originalism" is organized around four claims or theses:
(1) the fixation thesis--the claim tha the semantic meaning of the constitution is fixed at the moment of constitutional utterance: the phrase "domestic violence" continues to mean something like "riot, rebellion, or insurrection" even though it has now acquired a new meaning, "spouse abuse."
(2) the clause-meaning thesis--the claim that the semantic content of the constitution is determined by the original public meaning of the words and phrases and the rules of syntax at the time the constitution was framed and ratified. Clause meaning is modified in four ways: (a) by the publicly available context of utterance, (b) by "terms of art" as specified by the division of linguistic labor, (c) constitutional implicature, the necessary implications of the text, and (d) constitutional stipulations, the newly created phrases such as "House of Representatives," the meaning of which is stipulated by the Constitution itself.
(3) the contribution thesis--the claim that the semantic content of the text contributes rules of constitutional law. The moderate version of this thesis does not claim that all constitutional rules are found in the text, some are identified by the construction of vague constitutional provisions.
(4) the fidelity thesis--the claim that citizens, officials, and judges owe fidelity to the law in general and the constitution in particular.
Griffin asked eight questions about "Semantic Originalism." The prior posts in this series addressed each of Griffin's points:
Reply to Griffin, Part One: Background, Context, and Constitutional Holism--the clause meaning thesis is not "clause bound interpretivism," the meaning of each clause is determined by the publicly available context, including the meaning of the whole Constitution.
Reply to Griffin, Part Two: Constitutional Amendments--Determination of the relationship of constitutional amendments to the main text and to each other may involve constitutional implicature or harmonizing constructions.
Reply to Griffin, Part Three: Going Beyond the Text--Likewise, general constitutional principles like "separation of powers" may be intermediate steps in the construction of vague provisions, such as "executive power," "legislative power," and so forth.
Reply to Griffin, Part Four: Constitutional Disagreement--There can be disagreement about the semantic content of the Constitution, including the question whether a particular provision is vague, but such disagreements can usually be resolved by the linguistic facts.
Reply to Griffin, Part Five: Concepts and Kinds--This post addresses the concept-conception distinction invoked by Ronald Dworkin, and the notion of a natural kind associated with Saul Kripke.
Reply to Griffin, Part Six: Interpretive Pluralism --This post distinguishes several different ideas that might be called "interpretive pluralism" and demonstrates the plausible versions are consistent with the claims of "Semantic Originalism."
Reply to Griffin, Part Seven: The Relationship of the Constituitonal Text and Constitutional Law--The contribution thesis claims that conventional practice establishes that the semantic content of the Constitution provides rules of constitutional law. This post establishes criteria by which this claim can be assessed and shows that these criteria are met.
Reply to Griffin, Part Eight: The New Deal and Living Constitutionalism--The idea of living constitutionalism emerged during the Warren Court era. The most plausible version of living constitutionalism (which does not deny that the Constitution has hard core of fixed semantic content) is compatible with semantic originalism.
In this final post, I would like to add a few words about the point of "Semantic Originalism." If you have read the article or this series of posts, you will now understand that my point is not to advance some particular constitutional agenda. Quite the contrary, one of the major ideas embraced by New Originalists, like Jack Balkin, Randy Barnett, Keith Whittington, and myself is that much of the important work of constitutional practice must be done by construction, the crafting of specific rules or practices that allow for the application of constitutional provisions which are vague.
The main point of "Semantic Originalism" is to reconfigure the conceptual space of constitutional theory. For thirty years, the originalism debate has been conducted as a debate about "constitutional interpretation" and "meaning," but those ideas were used in a way that conflated three distinct dimensions of disagreement:
The First Dimension is semantic. What is the linguistic meaning of the constitutional text?
The Second Dimension is legal. What legal status does the semantic content of the constitutional text have? Does the semantic content contribute the legal content of rules of constitutional law?
The Third Dimension is moral. If the semantic content of the constitutional text does provide the legal content of rules of constitutional law, then do we owe an obligation of fidelity to those rule?
If these three dimensions are collapsed, the inevitable result is conceptual confusion. We will find ourselves making moral arguments about linguistic meaning--when linguistic meanig is a factual question. We will make linguistic arguments about the rules that determine legal content--when these rules are fixed by legal conventions and not conventional semantic meaning.
The most pernicious form of confusion is reflected in the often repeated assertion that the originalism debate is normative all the way down, and that theories of constitutional interpretation must be justified on the basis of arguments of political morality. This idea is powerfully embedded in discourse about constitutional theory. (I cite several examples in "Semantic Originalism.") But this widely held belief is, in fact, the product of the collapse of the three-dimensional theoretical space into a single, normative dimension.
The linguistic meaning of a constitutional utterance is not the conclusion of a normative argument--it is a fact determined by conventional semantic meaning and the rules of syntax at the time of utterance. It is precisely at this point that some readers are likely to say something like, "That can't be right. It cannot be the case that linguistic facts can tell us what to do." The second sentence, "it cannot be the case that linguistic facts can tell us what to do," is correct. I am not arguing that they do. If I were arguing that the linguistic facts were normatively decisive then I would be guilty of collapsing the three-dimension theoretical space into one dimension--the linguistic dimension.
The linguistic meaning of the constitution is a fact, but more than linguistic meaning is required to generate laws and more than law is required to establish the existence of obligations of political morality. That is why "Semantic Originalism" does not end with the fixation thesis and the clause meaning thesis. The contribution thesis extends the argument into the second dimension of law, and the fidelity thesis moves the argument into the third dimension of political morality. A fully explicit argument for action based on the Constitution must be three dimensional: it must explain what the constitution means, what legal rules follow from that meaning, and what normative obligations follow from the legal rules.
When the semantic content of the Constitution is neither vague nor ambiguous, the three steps are rarely fully explicit. The rule that provides that each state is entitled to two senators is an example of a constitutional provision with semantic content that is neither vague nor ambiguous. The translation of this semantic content into a rule of law is so effortless that we hardly notice that it has occurred. And the notion of fidelity to constitutional law is rarely problematized, even by someone like Sandy Levinson who believes this provision is deeply undemocratic: Levinson does not argue that it should be ignored or erased by an amending construction.
Likewise, when the constitutional provision is so vague that its outer limits are not relevant to the case at hand, our practice may be to ignore the text and move directly to constitutional construction. Many "separation of powers" cases fail to note that this idea is being invoked because the phrases "judicial power," "executive power," and "legislative power" are vague and potentially overlapping. We might say that "interpretation" exits the scene before the play even begins. When the curtain opens, "construction" is already on stage.
But constitutional theory cannot afford the luxury of collapsing the three dimensions--linguistic, legal, and moral--into one. Once we are talking about the big picture, our theories must account for all three dimensions on pain of conceptual incoherence. Even constitutional practice would benefit from more explicit attention to the interpretation-construction distinction: collapsing this distinction can create practical confusion that is every bit as pernicious as the theoretical confusion that infects arguments over originalism.
Frequent readers of Legal Theory Blog will not be surprised to learn that the main point of "Semantic Originalism" is to reconfigure the conceptual space of constitutional theory so that the true nature of our disagreements can become clear.
And once again, I owe a great debt of gratidue to Stephen Griffin for his illuminating and deeply engaging questions. Thank you!
