Academic

Alexander on Originalism

By Lawrence Solum

Larry Alexander has posted Simple-Minded Originalism on SSRN.  Here is the abstract:

In this essay I defend the unfashionable, maligned, and ridiculed view that interpretation of the Constitution is a search for its authorially-intended meaning, and that constitutional interpretation is no different in this respect from the interpretation of shopping lists, toy assembly instructions, and ordinary conversations.

Highly recommended--Alexander is one of the most interesting thinkers in the legal academy.

I do have some thoughts.  Consider this passage from the text:

I don?t deny one can intelligibly speak of utterance meanings in a given language or of original public meanings. But no, in that in doing so, one has not so much departed from original authorially intended meaning as merely substituted hypothetical authors for the real ones.

Take, for example, the so-called textualist, who eschews seeking authorially intended meanings in favor of looking to standard utterance meanings. The textualist is hypothesizing authors who speak in a given language (as of a particular date and perhaps a particular place4)?how would we know what standard meanings to look to if we did not know the language our authors were using??and who speak it perfectly. (We would also have to hypothesize that when there is more than one definition of a word, the hypothesized authors always choose, say, the first definition given?which might also entail that we hypothesize their dictionary of choice when there are warring dictionaries.) Moreover, a really pure textualist would never look to the circumstances and purposes of the actual authors in resolving ambiguities, for that would be deferring to authorially intended meanings and thus raise the question, why not defer to them entirely?

Alexander goes on to discuss "original public meaning" which he distinguishes from textualism as follows:

The proponent of original public meaning?hereinafter OPM?hypothesizes authors who intend a meaning that some construct of a member of the public who is a contemporary of the actual authors would have believed was the intended meaning of the actual authors. So if the choice is between what we now believe is the intended meaning of the actual authors and what this hypothetical member of the public would have (erroneously) believed was their intended meaning, the OPM proponent says choose the latter.

Of course, there may be some "original public meaning originalists" whose theory is as Alexander describes, but this need not be the case.  As Alexander knows, there is an alternative view--based on Paul Grice's notion of "sentence meaning" or "expression meaning"--the conventional semantic meaning of an utterance based usage.  Conventional semantic meaning is neither the intended meaning of a hypothetical author nor the understanding of a hypothetical reader--it is conventional meaning of an actual community of language users--that is, it is "actual" meaning and not "hypothetical" meaning.

Of course, the conventional semantic meaning of an utterance could be the product of intended meanings by many authors--because such intended meanings may constitute the patterns of usage that establish conventional semantic meanings.  But from the fact that intenteded meanings may (or do) produce conventional semantic meanings, it does not follow that the latter can be reduced to the former.

As always, Alexander does a masterful job dealing with objections, but to my mind there are several key difficulties with the intentionalist position.  For this position to get off the ground we need to identify the mental states that constitute the relevant intentions--are they the mental states of an individual or a group, are they occurrent or dispositional, and so forth.  Things will get tricky once the mental states are specified.  In addition, it is not clear whehter intentionalists have offered a viable account of the success conditions for communication of constitutional meaning: how can the relevant mental states be communicated successfully given that the circumstances of constitutional utterance do not satisfy the conditions for "common knowledge" (in the technical sense) of the content of this content?

My take on these issues is elaborated at length in Semantic Originalism, a new version of which was uploaded on August 20, 2008.

Full post as published by Legal Theory Blog on August 25, 2008 (boomark / email).