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Prakash on Originalism & Popular Sovereignty

By Lawrence Solum

Semantic OriginalismSaikrishna Prakash (University of Virginia - School of Law) has posted The Misunderstood Relationship between Originalism and Popular Sovereignty on SSRN. Here is the abstract:

This short essay contests the interpretational claim that fans of popular sovereignty often make, the assertion that originalism is a legitimate means of making sense of the Constitution merely or primarily because of the manner in which the Constitution was ratified and amended. This unduly narrows the strength and appeal of originalism, which properly understood, has nothing to do with how the legal document in question came into being. Legal documents generally ought to be understood through the originalist lens, whether those documents are the products of petty dictators or the united voice of the people. Indeed, any text or utterance, legal or not, should be understood through the originalist lens.

And from the text:

Indeed, originalism, properly understood as an interpretational methodology, can never hope to provide an argument for a document?s authority or legitimacy. Originalism can no more provide such an argument than a key used to decipher a coded message can command the decoder to follow the coded message?s instructions. Meaning tells us what somebody was trying to convey. The meaning of some communication, by itself, provides no compelling reason to do anything. The claims made here against the use of popular sovereignty as a justification for originalism can be generalized. Any theory that supposes that originalism is uniquely qualified or fit to determine the meaning of the Constitution has the same sets of problems as the prevalent popular sovereignty justification. Suppose that one thinks that the Constitution should be understood in light of its original meaning because of the super-majoritarian ratification process, the excellence of the Constitution?s provisions, or the supposed legitimacy conferred from the many acts of informed and extraordinary higher law making that generated the Constitution, to take but three other theories. Adherents of these theories must explain how we ought to understand the documents that help us discern the original meanings, almost all of which will not enjoy the features that supposedly favor of originalism as applied to the Constitution. Adherents also should contemplate how to make sense of other documents part of our legal tradition that do not have any of these fine features. Once one posits some unique justification for originalist methodology as applied to the Constitution, one has to explain how one derives meaning from all other manner of documents relevant to unearthing the Constitution?s original meaning.

Highly recommended.

Prakash's point can be reframed in terms of the interpretation-construction distinction. If we stipulate that "interpretation" is the activity that discerns linguistic meaning, whereas "construction" determines the legal effect of a text, then Prakash's point might be put as follows: The distinctive claim made by originalism as a theory of interpretation is that the linguistic meaning of a text (including legal texts like the Constitution) is fixed by linguistic facts at the time the text was authored (in the case of the Constitution, the time the text was framed and ratified). We can call this claim by originalists, "the fixation thesis."

The correctness vel non of popular sovereignty theory (a view about political morality) does not bear on the linguistic meaning of the constitutional text, and hence it would be a category mistake to argue for the fixation thesis (or any theory of interpretation) on the basis of its democratic legitimacy.

What then is the relevance of popular sovereignty theory to originalism? Prakash has this exactly right: popular sovereignty theory can only bear on the legal effect to be given to the linguistic meaning (or semantic content) of the constitutional text. In other words, popular sovereignty theory is relevant to a theory of constitutional construction. Many originalists do not limit their views about constitutional theory to interpretation and the fixation thesis; they also affirm the view that the linguistic meaning of the constitution should make a substantial contribution constitutional doctrine. In other words, they have a theory of constitutional construction. Typically, originalists claim that courts should give legal effect to the constitutional text in a manner that is constrained by the linguistic meaning of that text, although they may allow for exceptions (e.g., for the effect of precedent or longstanding historical practice).

In sum, Prakash's point is the core of originalism is the fixation thesis--a view about constitutional interpretation.  Popular sovereignty is not even relevant to interpretation, but is instead a view about constitutional construction.

My views on these matters are outline in Semantic Originalism. Read Prakash!

Full post as published by Legal Theory Blog on February 23, 2010 (boomark / email).

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