MIchael Dorf has a remarkable post entitled "The Stakes of the Originalism/Textualism Debate." Although there are many things in the post that I would say differently and some things with which I would disagree, Dorf's thoughts are illuminating and generally charitable to those with whom he disagrees. I may have some additional things to say about the post in the next few days, but at this point I want to highlight this paragraph:
As Smith and Segall and others have argued, if a judge believes that the original meaning of a constitutional term is best understood at a high level of generality, then the constraint principle does little constraining. "Equal protection" is a good example. Most of the framers and ratifiers almost certainly thought that most forms of de jure sex discrimination were consistent with equal protection of the laws, but, as nearly all contemporary originalists would say, the framers' and ratifiers' concrete intentions and expectations do not define the meaning of the term equal protection. To the extent that we care about intentions and expectations as evidence of meaning, we care about semantic intentions and expectations. If, say, as some originalists argue, the original meaning of the Fourteenth Amendment was a prohibition on state laws redolent of caste distinctions, then sex discrimination is presumptively invalid today, because we now recognize, as our nineteenth century forebears did not, that sex-based distinctions generally are caste-like distinctions.
With due respect to Calabresi and Rickert (the "some originalists" in Dorf's post, I am far from sure about this interpretation of the Equal Protection Clause from an originalist perspective. More importantly, public meaning originalism does not have a "levels of generality" problem for reasons that are explored in a post that I put up earlier today:
The Case for Originalism, Part Seven: Underdeterminacy and the Construction Zone
One final point, Dorf frequently refers to "public meaning originalism" as "semantic originalism." I am flattered that he uses the title of an unpublished working paper from several years ago, but I want to be clear that it has never been my position that the communicative content of the constitutional text is determined by semantics alone. Communicative content is a function of both the conventional semantic meaning of the text and the public context of constitutional communication. The context includes both intertextualist considerations (e.g., the meaning of particular clauses may be affected by the other clauses) and the publicly known circumstances in which the original constitution and the amendments were adopted. Context contributes to the full communicative content in two ways. Contextual disambiguation allows us to identify which sense or meaning of an ambiguous constitutional word or phrase is the public meaning, and contextual enrichment adds content via implicature, impliciture, presupposition, and modulation. The full communicative content of the text is "thicker" than the bare semantic meaning.
