On gaps, contradictions, and originalism

Just a brief clarification concerning the last post, as Larry Solum has emphasized in a response to another interlocutor that "One of the points of the New Originalism is that the semantic content of the Constitution sometimes underdetermines its application. That's a feature of the theory, not a bug." While I discussed the problem of gaps and contradictions in my post, I wasn't entirely clear about distinguishing two separate levels of indeterminacy that give originalists trouble in different ways. So let me try to restate this argument, which was merely implicit before.

While Solum acknowledges that semantic content underdetermines its application, he misses the force of the full critique. On the one hand, if we are genuinely restricting ourselves to literal semantic meaning or something very close to it, "underdetermination" is a huge understatement: literal semantic meaning gets us nothing but the really obvious provisions about 2 senators per state, etc. (Keep in mind, though, that deference even to literal semantic meaning requires smuggling in some assumptions, with which I take issue; I think it's quite possible for our criteria of constitutional validity to contradict and override even this thinnest, least controversial sort of meaning. This can be safely put aside, however.) But, as I argued, literal semantic meaning is just not the stuff constitutions are made of: if it were, the idea that they can effectively constrain and structure governments would be absurd. So we have to import some degree of pragmatic content--whether it's Solum's "clause meaning" or something else--to get anything workable at all.

Once we do this, however, we run smack into the interpretive pluralism--the deep disagreement about the criteria of constitutional validity--that Leiter so rightly brings up. (As I noted, it's actually an issue even with LSM, but less obviously so.) Whether we should view this pluralism as generating contradictions (a plurality of inconsistent but valid "constitutional moves") or gaps (when you have a plurality of inconsistent criteria covering some area of consitutional import, then this means you lack any criteria at all) is an interesting philosophical question, but the bottom line is the same. Semantic originalism is not just a theory that leaves certain applications underdetermined; whether or not one may or must use it is itself underdetermined (at least, I would say, from a mainstream positivist standpoint) on any realistic appraisal of American constitutional practice. It is because our highest strata of officialdom are populated by originalists and structuralists and legal process types and Dworkinians and on and on that gaps/contradictions exist in the norms of constitutional validity. And that can't be wished away--or at least, not at once; if every Con Law professor converts to semantic originalism tomorrow, then perhaps in 40 years ...

In short: there are at least two levels of indeterminacy related to constitutional meaning. One is the sort Solum highlights: the rule may not determine the application; semantic meaning won't get us very far (though, as highlighted above, this bites deeper than he acknowledges). The second is at the level of rule-identification itself--and it is this, I insist, that is fatal to the semantic originalist's claim of conceptual necessity.