Academic

Griffin on Semantic Originalism & the AALS Mid-Year Constitutional Law Conference

By Lawrence Solum

Stephen Griffin has a post entitled Impressions from the AALS Conlaw Conference. The post touches on Semantic Originalism and the question whether it says something new about constitutional theory.

Solum?s article in effect argues that using two different theories of meaning to interpret the Constitution, one for the clauses that are ?clear? or ?hard-wired? and another for the vague clauses everyone is concerned with is incoherent. The Constitution may be unique in various ways but it is probable that if one theory of meaning is helpful in understanding how the clear provisions mean, then that theory will be applicable to the entire Constitution. Therefore we cannot ignore how the clear provisions mean in explaining how the vague provisions mean.

It would, of course, be inappropriate for me to comment on Griffin's conclusion that Semantic Originalism is "important," other than to thank him for his generosity.  Let me add just a few words of clarification about the point that Griffin makes in the quoted passage.

Semantic Originalism adopts the interpretation-construction distinction (for a short explication see Legal Theory Lexicon 063: Interpretation and Construction).  Interpretation is the determination of the linguistic meaning (or semantic content) of the constitution.  Sometimes that content is vague; in the strict philosophiical sense "vague" means "having borderline cases" (see Legal Theory Lexicon 051: Vagueness and Ambiguity).

When the constitution is neither vague nor ambiguous, then the the linguistic meaning discovered by interpretation can be directly translated into a rule of constitutional law and that rule can be applied to the constitutional at issue at hand.  Many of the most important structural provisions of the Constitution are neither vague nor ambiguous.  Each state gets two Senators.  The word "two" is not vague as applied to Senators, since there are no partial Senators and hence no need for rounding rules.

When the constitution is vague and when the constitutional issue at hand requires that constitutional actors (judges, officials, or citizens) draw a line, then interpretation alone cannot resolve the constitutional issue.  (That is because interpretation--in the sense that is contrasted with construction--runs out when we determine that the content is vague.)  When interpretation exits the stage, then construction makes its entrance.  Constitutional construction translates the vague semantic content into rules of constitutional law.  For example, the constitution creates three kinds of power: "legislative power," "executive power," and "judicial power."  Each of these three phrases is vague.  That is, they have core content, but the line to be drawn between the three forms of power is not specifified by the linguistic meaning of the phrases.  This entails that drawing the line in vague cases (those in the penumbra in H.L.A. Hart's sense) involves constitutional construction.

One of the central claims of New Originalists (such as Balkin, Barnett, and Whittington) is that constitutional construction cannot be determined by original public meaning (the conventioanl semantic meaning of constitutions provisions at the time they were framed and ratified).  Constitutional construction must proceed on the basis of some other theory.  Balkin argues that construction should be guided by "constitutional principles."  Barnett argues that construction should be guided by a theory of constitutional legitimacy (and his theory is that legitimacy is contingent on justice specified in a particular way).  Whittington argues that construction is a political process.

So is it the case that Semantic Originalism argues that there are "two different theories of meaning to interpret the Constitution, one for the clauses that are ?clear? or ?hard-wired? and another for the vague clauses everyone is concerned with is incoherent," as Griffin states in his post.  That depends on what Griffin means by "meaning."  If Griffin is using meaning in its semantic sense (which refers to "linguistic meaning" or "semantic content," then Griffin's statement is in error, and it is directly contrary to the multiple statements in the text of Semantic Originalism.  There is one theory of constitutional meaning--that theory is expressed by two theses--the fixation thesis and the clause meaning thesis.  The linguistic meaning of the constitution is always determined by the same method--we find the conventional semantic meaning of the provision at the time of utterance (subject to four qualifications which I will discuss in a moment).

But if by "meaning," Griffin means "meaning in the applicative sense"--the meaning that the Constitution has for a particular case, then his statement, although misleading, does capture the spirit of Semantic Originalism.  Semantic Originalism maintains that application of the constitutional text does require two different modes of constitutional practice--one for vague provisions and one for provisions that are not vague.  Provisions that are not vague can usually be resolved by simply applying the original public meaning of the constitutional provision.  (We could say "construction is not required" or we could more precisely say that "construction of the rule of constitutional law is almost fully determined by the constitutional text.")  But when the provision is vague, then determining the content of the rule of constitutional law requires that we go beyond that original public meaning of the text.

What is the theory of meaning that Semantic Originalism expresses in the form of the fixation thesis and the clause-meaning thesis?  That theory is that the linguistic meaning or semantic content of the constitutional text is the conventional semantic meaning of the words and phrases as composed by the rules of syntax into clauses (all of this at the time of framing and ratification) with four modification.  The four modifications are (1) conventional semantic meaning can be modified by the publicly available context of constitutional utterance, (2) particular phrases may be "terms of arts" as determined by the division of linguistic labor, (3) there may be cases of constitutional implicature, in which the meaning of the constituiton goes beyond the text, and (4) there are cases of constitutional stipulation, in which the constitution itself creates new terms of art (such as "House of Representatives").

Finally, I want to express appreciate gratitude for Griffin's very sage advice for readers who are daunted by the length of Semantic Originalism.  Let me supplement his advice with some of my own:

• You can get the gist of Semantic Originalism by reading Part I.A, pages 3-11 of the Draft of May 28, 2008 which is currently posted on SSRN.
• The heart of the argument for the clause meaning thesis with the four modifications is in Part II.C, pages 37-57 of the current draft.

If you read these 28 pages, you will have the core of the argument.  What you won't have is the detailed consideration of various objections and the foundation justification for the general approach.  The most important foundational claim is that theories of constitutional interpretation are not theories of political morality--they are not "normative" in that sense.  To get the argument for that claim, you would need to read the following additional sections:

• Part III.A and Part II.B, pages 27-37 oif the current draft.

There is a detail table of contents, which provides a good sense of the rest of the content of Semantic Originalism.  And finally, if you download the article before May 28, the current version has many corrections, revisions, and additions.

Read Griffin!

Full post as published by Legal Theory Blog on June 09, 2008 (boomark / email).