Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

Solum on Semantic Originalism: Take Two

By Jack M. Balkin

I am deeply grateful to Larry Solum for responding at such comprehensive length to the eight questions I posted about his article advocating semantic originalism, a genuinely new approach to the tangled debates over constitutional interpretation (a word used here in a general sense!). He must have set some sort of record by writing what amounts to an additional short law review article. Solum?s responses, detailed on his Legal Theory blog, show that I misunderstood his theory in several respects. So by way of apology, it is clear I did not pay enough attention to his explanation of ?clause meaning? (by way of including concepts like federalism within it) and still have more to understand about the ?contribution thesis,? the idea that in current practice, semantic content provides rules of constitutional law. I also very much appreciate Solum's kind remarks concerning my book, American Constitutionalism.

After reading Solum?s responses and further mature deliberation (my favorite phrase from Pierson v. Post), I think it is appropriate to take stock at a more general level. In doing so, I sincerely hope I don?t test Solum?s patience because it is not my intention to deny that he has written a truly significant, non-trivial (see below) contribution to constitutional law and theory, one that ought to provide some much needed clarity to very old debates. Ordinarily I might not carry the discussion to such a length, but for me this has been a nice warm-up to the forthcoming AALS Conference on Constitutional Law next month in Cleveland where Solum and I will be on a panel on constitutional theory (with Michael Dorf, Kermit Roosevelt, and Reva Siegel). If you are a constitutional law professor at an AALS school, I hope to see you there!

And now, on with the show.

Solum has done a better job than I ever could summarizing his long article in his recent postings. That said, it is useful to make three preliminary points. First, let?s notice the central importance in Solum?s theory of the distinction between interpretation and construction. Interpretation determines the semantic content of constitutional clauses. When interpretation reveals that the text is vague, we need ?construction? to translate semantic content into rules of constitutional law. Many believe that relative to constitutional adjudication by the Supreme Court, vague constitutional provisions are where the action is. If the constitutional clauses typically adjudicated by the Court and argued over in scholarly discussion really are vague, then Solum holds that construction is appropriate. Now here is the key point. In his response, Solum acknowledges that this move ?relocates many of the most interesting and important questions to the construction zone ? the area in which constitutional vagueness is resolved.? This raises the issue of the relationship of Solum?s theory to traditional originalism (what Solum might call ?old? originalism). We can?t address this issue properly until we know what is going on in the construction zone.

My second preliminary point is about the ?fixation thesis.? Solum claims this thesis unites originalists and shows why his theory deserves to be called an originalist theory. So let?s mark it carefully. The idea is that all originalists agree that the meaning of a given constitutional clause was fixed at the time of framing and ratification. Because Solum holds that all (or nearly all) constitutional clauses have semantic content, this implies the content of all clauses, vague or clear, were fixed in this way. But, as just discussed, we can?t resolve all clauses into legal rules by using interpretation alone. Sometimes we need construction, a different process.

Finally, throughout his article Solum is concerned to show that his theory really is a form of originalism, that there is a meaningful connection between it and past originalist theories. He is also concerned to show that despite his apparent exclusive concern with semantically clear constitutional provisions, his theory is non-trivial. Let me get this out of the way at once: I have no doubt that Solum has produced a significant non-trivial theory that ought to be read by everyone conversant with constitutional theory. Having a theory that rigorously and comprehensively explains why ?clear? constitutional clauses are clear is quite important. Or, by way of imitation, read Solum!

These preliminaries aside, let?s distinguish triviality from relevance. Solum?s theory is non-trivial because it tells us something important about how the Constitution is and should be interpreted. But is it relevant in a strong sense to the ongoing debate over originalism? In what follows, keep in mind I?m not advancing an objection to the main elements of Solum?s theory. Instead, I?m arguing that his theory does not relate in a strong sense to traditional originalism and thus cannot help with its many difficulties. In the past, originalists (and others) did not usually make the distinction between interpretation and construction. So how would we map traditional or ?old? originalism onto these distinctions? It strikes me originalists were and are quite concerned to ensure that vague constitutional clauses like ?freedom of speech? and ?equal protection? comport with original meaning or intent. Of course, Solum has things to say here. Meaning for him is semantic meaning and that is of little help in the case of a vague clause. But let?s stick for a moment with how traditional originalists see things.

If nothing else, originalism is a theory of legitimate constitutional decisionmaking. The process of arriving at a legitimate constitutional decision must be originalist ?all the way down.? So mapping traditional originalism onto Solum?s theory involves saying that constitutional construction, the process of producing rules of constitutional law, must be consistent with originalist evidence. Normally, we would say ?consistent with original meaning (or intent).? But remember for Solum, meaning is determined only by interpretation and that is no help with respect to vague clauses. So construction does not determine meaning, it provides rules to decide cases. Still, it must be consistent with evidence from the past, from the time of original adoption. If it is not, the whole purpose of originalism would be frustrated. Let me be clear. Solum?s distinctions would stand as valid, but traditional originalists would have no assurance that the results of constitutional construction could be vetted by evidence drawn from the past. Traditional originalists are originalists through and through (although they may be willing to compromise their principles for practical reasons, see Justice Scalia). Is Solum an originalist in this sense? That is a harder question because his article is not centrally concerned with explaining constitutional construction.

What about the fixation thesis? At first glance, it looks absolutely consistent with traditional originalism. But a problem is introduced once you keep in mind Solum?s distinction between semantically clear provisions and those that are vague (although vague provisions do have a minimal or thin semantic content). Solum maintains meaning is determined through interpretation and that meaning can ?run out,? fail to be determinative in the case of a vague clause. My read is that traditional originalists think originalist evidence controls the meaning and application of every clause in the Constitution. It does not run out (or that is unlikely). Of course, they might concede Solum?s non-normative arguments on meaning. The point, again, is that originalists are originalist all the way down. Vague clauses pose challenges that originalist evidence can overcome. So traditional originalists would say that the purpose of construction must be to fix the meaning of vague clauses. As I understand the state of play, this is like an oxymoron for Solum, but conventional wisdom for originalists. This means the fixation thesis is inconsistent with traditional originalism. To make it consistent, we would need to know much more about the process of constitutional construction. That?s where the action is.

So let?s go there. What happens in constitutional construction? Here is where we get to the question of interpretive pluralism. I have consistently advocated pluralism both as the best positive, or descriptive-explanatory theory of constitutional practice and as a normative theory. While of course these are different dimensions of analysis, interpretive pluralism satisfies both. Can traditional originalists take pluralism on board? Well, actually, no. To the extent Solum and the ?new? originalists affirm pluralism in constitutional construction, they sever the cord with traditional originalism. And I think any proper understanding of Whittington and Barnett?s new originalist theories would show they do not and cannot affirm pluralism (I will also note in passing that I do not think Whittington, Barnett and Solum are all operating from the same page with respect to the meaning of construction?Whittington?s ideas are different from those of Barnett and Solum).

So it seems I have a major disagreement with Solum on this point. In his response, he says interpretive pluralism can be used in constitutional construction. Accepting Solum?s terms for a moment, I certainly agree the appropriate place for interpretive pluralism is constitutional construction. Pluralism was never advanced as a way to determine the semantic meaning of the Constitution. The problem is the acceptance of pluralism, at least in the sense advocated by myself and other scholars like Philip Bobbitt, is inconsistent with traditional originalism. You can have one or the other, but not both. Perish the thought!

How can I justify such dogmatism? As I explain in ?Rebooting Originalism,? an article forthcoming in the Univ. Ill. L. Rev., new (and old) originalism tends toward exclusivity, the claim that originalism is the only (or at least primary) legitimate method of constitutional interpretation. You might ask how that can be on the positive side. Doesn?t everyone acknowledge that the Court uses multiple methods of interpretation? The problem is that originalists tend to see the multiple methods as easily reducible to the one true method, original meaning or intent. Text? The text is not autonomous of original meaning. History? That?s originalism! Precedent? Ultimately depends for its authority on original meaning. Structural arguments? Better be consistent with original meaning! And so on. Perhaps there?s some overlap here between positive and normative arguments, although it doesn?t matter for my purposes. I?m reporting my sense of the typical originalist approach.

And what of the normative side? Here one of us must be wrong because I think Solum misses the mark. He refers to new originalists having differences among themselves as to the normative ground of constitutional construction: ?different normative views about constitutional construction.? First, if this is the case that shows there is no strong link between new and traditional originalism. Traditional originalists believe that originalism is indeed the primary method of interpretation (construction) that has been used (has always been used) to adjudicate the Constitution. Second, under the traditional view, originalism is the only legitimate theory and I do not understand Barnett and Whittington (in their books) to disagree. Thus, Barnett and Whittington advocate what I refer to as ?exclusive? originalism and what Mitch Berman calls ?strong? originalism. Further, if Solum were correct in these passages (page 27 of his Response), it would make the critique of non-originalism offered by theorists like Barnett and Whittington hard to fathom. Consistent with what I argue in ?Rebooting,? ?non-originalism? is best understood as interpretive pluralism. That?s what both new and old originalists must reject. Of course they must. To be an originalist means believing in just one legitimate method of interpretation or construction. Otherwise, the entire debate over originalism, non-originalism, etc. loses meaning. And there is indeed a debate.

I?ll close with a note on the modalities that is not aimed at anything Solum says. There is a widespread view that in his two books, Bobbitt offered a typology of methods of constitutional interpretation. A list, in other words, however elaborate. This is a mistake. The modalities are modes of understanding, ways of perceiving the constitutional universe (in the construction zone) inspired by the ways of understanding in the American legal system as a whole. This is shown by their persistence over time and the hold particular modalities have had over significant figures in American jurisprudence. Originalism is one such method. But only one.

Full post as published by Balkinization on May 14, 2008 (boomark / email).