First, the choice of Gricean sentence meaning or “clause meaning” versus intentionalist “speaker's meaning” is a false dichotomy. Indeed, Solum's shift from “sentence meaning” into “clause meaning” is an example of just how wide the range of possibilities is. Second, Solum's argument for original clause meaning (versus contemporary public meaning) is unpersuasive; as it happens, contemporary public meaning makes a great deal more sense. This is so because of what constitutions norms are, at least on a positivist line: the criteria of legality for the system as a whole. They must therefore supervene on actual practices—whether of officials, on the standard positivist line, or of We the People, on popular constitutionalist views—in an institutionalized way. But originalist modalities of argument, while clearly embedded within American practice, are not the only ones so embedded. Originalists, not living constitutionalists, thus bear the burden of proof in showing why what seem to be foundational practices of constitutional argument are in fact parasitic on originalist ones. Leiter suggests that moral argument is the only thing that could bridge this gap; I'm less certain, especially if one takes a more inferentialist approach to norm validity. But regardless, the typical arguments adduced—about the nature of law or of constitutions—actually cut in the other direction, towards living constitutionalism.
Whew. Let's take this one step at a time, now.
1.
Solum claims that we can usefully divide theories of meaning into textualist and intentionalist camps, with textualists looking to Gricean “sentence meaning” and intentionalists looking to Gricean “speaker's meaning.” While he acknowledges that this is an oversimplification, I insist that it is a dangerously misleading one. To get a sense of just how broad the space of options is, we can look to Paul Horwich's helpful discussion (Reflections on Meaning, p. 23, 27), where he distinguishes the “literal semantic meaning of a word,” which he uses to refer to
'the sense of meaning in which “I” has a single meaning in English, the same one that “Ich” has in German; in which “and” and “but” possess a common meaning, whilst diverging in pragmatic import; in which “everyone” covers all people, although a speaker may use it to ‘mean’, in a different sense, “everyone present”, or “everyone in Boston”, etc.; in which “She's a genius” does not mean either “She's incompetent” or “Let's give her the job”'from the following other sorts:
(a)Now, we're clearly somewhere in the range of (b) – (e) when we talk about legal norms. Troy Booher's paper “Putting Meaning it its Place” (Law and Philosophy 25, 2006, esp. 398-408) does an excellent job of showing why constitutional meaning can't be a matter of pure semantics: we're interpreting particular utterances, not sentence types. So it's an open and fascinating question just how much pragmatic content should be included in the “meaning” we're looking for. And as I said, Solum seems to acknowledge this: his actual argument for “clause meaning,” in his “Constitutional Texting” article (p. 27), is exactly the right sort of context-sensitive investigation into the constitutional “conversational situation”:
What the speaker means on a given occasion by some word—where this is some temporary modification of its meaning in the language as a whole. The notion of meaning in which “The President” may be used, in virtue of the speaker's local intentions, to mean “The current President of France”.
(b)
What is said, in a given context, by the utterance of some sentence, the proposition expressed by a sentence-token. The notion of meaning in which “I am hungry” means different things depending, not on the speaker's intentions, but on who is speaking, and on when the utterance is performed.
(c)
The conventional pragmatic content of a term, its illocutionary force (going beyond the de dicto propositional constituent that is expressed by it). The respect of meaning in which “but” differs from “and”, and in which “I promise to go” engenders a specific obligation.
(d)
The full information conveyed by the making of a given utterance, i.e. its ‘conversational implicature’, that which the hearer may infer from the speaker's deciding, in the circumstances, to say what he does. The respect of meaning in which “There's no milk left” can mean “Would you buy some?”.
(e)
The non-literal meanings of an expression, including metaphorical and ironic meanings.
“Clause meaning is the meaning that would be assigned to a clause, on the assumption that the clause was written with the knowledge that it would be ratified and interpreted by readers who would have very limited access to information about the framing and who would be under normative pressure to disregard any information that was not universally accessible.”Note what's going on here: Solum is giving us a particular conception of meaning that is to be preferred to alternate ones because it makes the most sense of the Framers' attempt to legislate for the future, and our attempt to discover what they did (but not necessarily intended to do) in that attempt. These are normative considerations insofar as they are about how one should attribute meaning if one is to succeed at communication.
2. But while Solum's argument is the right sort, it is still quite wrong. His originalism, like most, fails to take seriously enough the positivist insight that the fundamental criteria of legal validity are practice-based. Our rule of recognition, if we wish to take a Hartian tack, simply cannot be, as Jack Balkin put it, “a continuing legal command addressed to us in the present.” Such a claim is vulnerable to the withering criticisms Hart leveled so long ago at Austin's “command theory” of law. Not the command but the rule that invests it with authority is fundamental, and whether or not the rule points to original rather than present public meaning is precisely the question and hence cannot be assumed. Moreover, it is a question that can only be answered by reference to present practice. Any other sort of inquiry is simply not an inquiry into our constitution, but rather a different constitution that might have crystallized around the same textual artifact.
Now, we needn't endorse what seems to be the standard gloss of Hart—that the Rule of Recognition is a duty-imposing rule on officials—for this to generate problems for originalism. Even if we take constitutional rules to be more purely constitutive (like the rules of chess, which cannot be said to impose obligations; I take this to be Marmor's view, though this may be a misreading) then the lack of convergence at this level—in particular, the lack of convergence on originalist argumentation—means originalists, not living constitutionalists, have the burden of proof. As Bruce Boyden notes in his response to Solum, non-originalist arguments do not sound “odd” at all; precedent, not original understanding, is the touchstone of American constitutionalism.
Solum might reply that the bar is higher than this, that living constitutionalists need to show “a well-established judicial practice of reading the Constitution in ways that are self-consciously inconsistent with the original public meaning.” But this is an entirely unwarranted shifting of goalposts: scholars have been demonstrating since at least Bobbitt's Constitutional Fate that, in fact, we do have interpretive pluralism (I recently came across a reference to a law review article that attempted to study this empirically, with predictable results, but I can't seem to find it right now—if anyone knows the one I'm thinking of, please let me know). As for the demand for “self-conscious inconsistency,” a practice of Xing may obtain even without its practitioners self-consciously repudiating Y, even if Ying may sometimes be inconsistent with Xing. The Canadian constitutional metaphor of the “living tree,” for example, is quite obviously non-originalist, despite the tree's continuity with its roots.
Solum claims that "even a moment’s reflection reveals that there are serious problems with contemporary public meaning" as a semantic theory; I believe this is precisely backwards. Nothing in "contemporary public meaning" requires we treat the phrase "domestic violence" as encapsulated in the Constitution as meaning "spousal, child, and elder abuse,” as Solum and even Balkin seem to suppose. The contemporary meaning of “domestic violence” is simply different in constitutional versus non-constitutional contexts; this is absolutely normal, reflecting the fact that terms of art will often resist broader linguistic shifts. This example should remind us to take with a grain of salt any warnings that abandoning originalism means being left adrift on a sea of meaning, with nothing to hold onto—robust institutional factors that work to conserve meaning are plentiful, precedent being only the most obvious and formal among them. Every difficulty that plagues attempts to discern some unique contemporary meaning within a contested legal practice is equally present in attempts to do the same for a time period in the past, with all of the familiar historical/epistemic hurdles tacked on for good measure. Looking to contemporary meaning is no more viciously circular than looking to contemporary meaning for the definition of words; something can be "objective" by virtue of interpersonal standardization and convergence.
Now, contemporary public meaning does require that, if constitutional practice came to redefine "domestic violence" to have its modern sense within constitutional discourse, then that would be that--but this is a feature, not a bug. "Contemporary public meaning" takes seriously HLA Hart's recognition that, when it comes to constitutional change, "nothing succeeds like success"; the fact of a change cannot be disputed by questioning its legitimacy. (Though one can attempt to reverse it by drawing on still-extant constitutional resources that remain in tension with the shift.) "Original public meaning," by contrast, refuses to accept the possibility of illegitimate change. And this is why I keep insisting that it is the originalist, not the living constitutionalist, who is confusing ought for is.
Semantic originalism, then, is doubly false: false because constitutional meaning is surely more than literal semantic meaning, and false because we needn't restrict ourselves to the original version of whichever sort of meaning that turns out to be. But where does this leave us? Is there answer simply that, where we lack convergent practice, the constitution runs out—and that this covers both specific constitutional norms, and norms of interpretation? And that therefore the only interesting questions that arise once we enter this realm of constitutional dissonance are purely moral ones—about which norms ought to be promoted (with the hopes of eventually embedding them so deeply in constitutional practice that they become hegemonic), etc.?
Quite possibly. This seems to be Leiter's view, and there's a lot to be said for it; Liam Murphy seems to lean this way as well. It's often hard to tell where particular philosophers stand, because few are explicit about whether the practices that constitute the rule of recognition / criteria of validity / what-have-you are in fact interpretive modalities or more concrete norms (e.g., some particular formulation of the First Amendment's freedom of association). And if you agree with this view, moral considerations will probably push against originalism (I won't bother rehearsing the critiques here). The more a theorist thinks of the criteria of validity as being concrete norms, the less constitutional meaning we'll have; but focusing on constitutional inference, as Bobbitt and Dennis Patterson seem to do, just means we have contradiction where before we had gaps. But note that nothing in what I'm saying requires that originalists stop being originalists; it just requires them to admit that originalism is not the whole truth of American constitutionalism. If they wish to keep making originalist arguments, they can; they merely can't pretend that logical necessity compels it, and hence must acknowledge the moral considerations that bear on their choice.
Moreover, those originalists who focus on the nature of law as binding constraint (I'm thinking of Prakash in particular, and perhaps Lawson and Paulsen) must recognize that these considerations actually push against their position. These might or might not be considered moral considerations; one could consider them, as Fuller did and Waldron (at least sometimes) and Dyzenhaus seem to do, part of constitutionalism / legality itself. After all, if what you care about is certainty, predictability, and the like—if what you care about is having a known and stable framework within which people can live their lives—it's truly bizarre to suggest that the criteria of legal validity ought to be what they were taken to be 140 or 220 years ago, regardless of what they were yesterday. The simple truth is that for a constitution to in fact structure and constrain a government, it must not be seen as a command from the past; by refusing to allow up-front recognition of change, you merely force change to happen sub silentio, in unprincipled and unpredictable ways. (Of course, this applies to supermajoritarianism generally!)
To conclude, Solum insists that if living constitutionalists
"want to contest the truth of semantic originalism, they should lay their arguments on the table and make them explicit. If they want to deny the normative significance of the semantic content of the Constitution, but claim that the semantic content of other constitutional texts has normative authority and creates obligations of fidelity, they should produce the arguments that justify this distinction. And if they want to argue that some nonoriginalist theory of constitutional interpretation is justified on normative grounds, they need to produce the arguments."I have focused here mostly on the first of these tasks, but living constitutionalists have been doing all three for decades. For example: the best arguments for statutory textualism—those of democratic authority and rule-of-law transparency—simply don't apply to supermajoritarian constitutions; the first is subject to dead-hand objections, and the second to incentive-incompatibility. And normative arguments for living constitutionalism are positively legion; that label fits at least half the books published by Americans on constitutional theory. In short: philosophy of language does not compel semantic originalism. Legal positivist considerations push against it, except as one modality among others. And moral and political philosophy can provide all the distinctions needed between statutory and constitutional originalism, in addition to moral considerations for living constitutionalism. The New Originalism is no more attractive than the old.
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