Originalism on the cheap

The perennial debate over constitutional interpretation spills over into the blogosphere fairly frequently; here and here we see Larry Solum defending, on Gricean grounds, original-meaning originalism. I'm a bit puzzled by this approach. Now, I don't dispute Solum's contention that philosophy of language is relevant to legal theory; any conception of constitutional meaning has to be consistent with at least some respectable theory about what constitutes meaning more generally. Where I find myself puzzled is in the idea that Grice or any other philosopher of language gets you originalism, without the help of any detailed argument about what constitutes the correct version of a genuinely contested social practice. In other words, I have a hard time understanding what we might call "originalism on the cheap", the idea that the constitution just means what it originally did and that this is transparently true.

Solum says that 'laws are different [than one-to-one utterances], and are better understood on the Gricean model of "sentence meaning," analogous to what is called original public meaning in constitutional theory.' Well and good, but I just don't see how the analogy gets you original, rather than current, public meaning. Grice shows us that we needn't view the Constitution as the direct utterance of a certain number of people, the meaning of which must be constituted by actual intentions; we can instead see it as a generic text whose meaning is established by how a certain audience would standardly react to it--but why does the audience need to be the original one?

What makes the Constitution of the United States, rather than the Constitution of the Confederacy, our constitution is that it is ours: our practice of constitutional government is thoroughly and undeniably one that refers to the Philadelphia document (and its amendments) as setting out the rules of legitimate political activity. This conceptual claim has nothing to do with any causal/historical argument about how in fact a given textual document came to have such totemic legitimacy; it is merely an assertion about what it is to have a constitution, whether it be written or, like New Zealand's, essentially customary. (The truth of this claim is, however, more obvious in the latter cases, which is one reason I think more people ought to study them!)

The originalism-just-is argument relies on the claim that any reference to a given text must of necessity be a reference to the sentence meaning at the adoption of that text. But this, as it stands, is simply begging the question. It is true that most knowledgeable practitioners make reference to the text's history and early reception when making arguments about its meaning--especially in areas where current practice is largely unsettled--but they also advance (to channel Philip Bobbitt) doctrinal, structural, textual (in the current-meaning sense), ethical, and prudential arguments.

Now, obviously, originalists claim that most of these other types of argument are invalid, or if valid, only so for epistemic or adjudicative, rather than constitutive, reasons. But this kind of argument can't come from linguistic philosophy--we'll have one sentence-meaning if we look to the Now, and another if we look to the Then--and it doesn't seem to emerge as a conceptual truth about our constitutional practice, Michael Perry's triumphalism on that score notwithstanding.

What the originalists need, I repeat, is a theory of why, given the plural and contested natures of our interpretive methodologies, their particular one is true and all the rest are false. And precisely because of this plural and contested nature, mere appeals to "writtenness" and "sentence meaning" don't hold up. This is why, I think, there is a constant recourse to the sort of normative argument Solum deplores--arguments that give us reasons to prefer the originalist reading over a living constitutionalist one. Randy Barnett, whom Solum often cites approvingly, is clearly engaged in this when he uses an analogy to the parol evidence rule in contract law:

However, given that the meanings of words can change or evolve, in searching for the "generally accepted" or reasonable meaning within a particular community of discourse, at what point in time do we look for the meaning? Here is where textualism meets and melds with originalism. With a constitution, as with a contract, we look to the meaning established at time of formation and for the same reason: if either a constitution or contract is reduced to writing and executed, where it speaks it establishes a rule of law from that moment forward. Adopting any meaning contrary to the original meaning would be to contradict or change the meaning of the text in violation of the parol evidence rule and thereby to undermine the value of writtenness. Put another way, writtenness ceases to perform its function if meaning can be changed in the absence of an equally written modification or amendment.

I think Barnett's argument is an entirely reasonable one: given that multiple meanings are available, we should stick with the original one, because only then can constitutions bind in the very rigid way we want them to. I also think it mistaken: originalism plus high barriers to formal amendment just isn't incentive-compatible, leading to "Constitutional dissonance", and would be morally illegitimate even if feasible. But all of that takes us into the realm of substantive, normative political theory. And that's precisely where Larry Solum (and others, like Michael Stokes Paulsen and Gary Lawson) don't want to go and claim we don't need to go.

If not moral argument, though, what are we to use? Julie Dickson's wonderful article "Methodology in Jurisprudence" surveys various positions far better than I could; read it, if you haven't already. It's quite possible that one could mount what Dickson calls an 'indirectly evaluative' argument claiming that practitioners' most central commitments are to legal authority and legitimate constitutional change, entail originalism, and cannot be abandoned (as non-originalist modalities could be) without destroying our practice entirely. I'd be interested in seeing such a claim. My own is not that originalism is wrong, but that those of its proponents who disclaim any recourse to moral theorizing need to stake a position in the debate over how, without it, one is to determine the true version of a contested practice.