This is the third 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 second of Griffin's comments. Quotes from Griffin are in ordinary roman type, indented, and black. My discussion is in blue. This time I am going to forgo the longer introduction from Part One and the shorter introduction from Part Two, and just say this, Semantic Originalism is a theory of the linguistic meaning of the Constitution and the relationship of that meaning to the legal content of Constitutional law and the notion of fidelity to law drawn from political morality. Here is Griffin's third question:
3. Solum believes it follows from his theory (the four theses above) that the Supreme Court should link every decision to a constitutional clause. What are we to make of decisions based on general principles of federalism and separation of powers (principles such as respect for state sovereignty and non-aggrandizement)? Are we not able to decide cases invoking such principles simply because the word “federalism” and the phrase “separation of powers” do not literally appear in the Constitution?
I'm sure that Griffin's misunderstanding is due to my lack of clarity, but this is not actually my view. It is true that in cases in which the constitutional text is salient, I believe that fidelity to law would be served by opinions that discuss the text--the alternative (simply ignoring the text) creates a risk of infidelity. But not all cases are directly governed by a particular clause.
One way in which the constitutional meaning (as reflected in constitutional doctrine) goes beyond the semantic content of the text is constitutonal implicature. Here is how I introduce that idea in Semantic Originalism:
The third modification of the two approximations is found in the idea of constitutional implicature. Recall Grice’s notion of conversational implicature—we can mean things we do not say. Or to put the same point a bit differently, we can mean things implicitly that we do not say explicitly. The possibility of implicit meanings is open to constitutions. It is possible that the publicly accessible meaning of the constitution would include illocutionary uptake that is not contained in the semantic content of the constitutional text. For example, in McCulloch v. Maryland, Justice Marshall argues that the power to transport and deliver the mail can be implied from the power to establish post offices and postal roads:
Take, for example, the power "to establish post-offices and post-roads." This power is executed by the single act of making the establishment. But from this has been inferred the power and duty of carrying the mail along the post road from one post office to another. And from this implied power has again been inferred the right to punish those who steal letters from the post office, or rob the mail.
This is a clear example of constitutional implicature—inference from what is said in the text to what is meant but not stated. Another example of possible constitutional implicature is provided by the Ninth Amendment to the Constitution. The Ninth Amendment reads as follows:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The semantic content of the Ninth Amendment is quite limited. It states a prohibition, “shall not,” the scope of which is limited by the syntax of the clause to forbidden constructions, that is, those constructions which deny or disparage rights retained by the people on the basis of the enumeration of certain rights in the Constitution. It does not directly state that the there are “rights retained by the people” it does not forbid the infringement by the federal government of rights retained by the people. But the existence of rights retained by the people and a prohibition on their infringement could be a necessary implication of the Ninth Amendment.
On this occasion, I do not wish to claim that particular instances of constitutional implicature exist, or indeed, that there is even one such instance. The claim that I do wish to make is that if there are instances of necessary constitutional implicature, then those instances are part of the meaning of the Constitution and they should be understood as within the “theory of clause meaning” as that theory is advanced in this article. I use the locution “within the ‘theory of clause meaning’” deliberately—as distinct from “within the clause meaning”—to emphasize that constitutional implicature is a distinct phenomenon which is conceptually independent of clause meaning itself.
In addition to constitutional implicature, there is another way in which notions like "separation of powers" and "federalism" can play a proper role in constitutional practice--in construction of vague constitutional provisions.
One of the central ideas of the New Originalism is the distinction between interpretation and construction. Let us stipulate that constitutional interpretation is the determination of the linguistic meaning or semantic content of the constitutional text. Construction translates semantic content into rules of constitutional law, adding content when the semantic content is vague.
A term or phrase is vague (in the strict philosophical sense) if and only if it admits of borderline (or uncertain) applications. The constitution contains a variety of vague terms and phrases. For example, the constitution uses the phrases “executive power,” “legislative power,” and “judicial power.” The relationship between these vague phrases is not given by their semantic content--so construction is required. The notion of separation of powers plays a legitimate role in constructing the relationships between and among the three powers.
Griffin's fourth question is about disagreement and constitutional disagreement will be the subject of the next post.
