Solom, Constitutional Texting, on Smith, Law's Quandary

Lawrence B. Solom, University of Illinois, has posted a new article, Constitutional Texting. It is forthcoming in the San Diego Law Review. Here's the abstract:

“Constitutional Texting” introduces an account of constitutional meaning that draws on Paul Grice's distinction between “speaker's meaning” and “sentence meaning.” The constitutional equivalent of speaker's meaning is “framer's meaning,” the meaning that the author of the constitutional text intended to convey in light of the author's beliefs about the reader's beliefs about the author's intentions. The constitutional equivalent of sentence meaning is “clause meaning,” the meaning that an ordinary reader would attribute to the text at the time of utterance without any beliefs about particular intentions on the part of the author. Clause meaning is possible because the words and phrases used in the Constitution have conventional semantic meanings - ordinary meanings in a natural language, English, as it was used at the various times when constitutional text was created and promulgated. The meaning of the Constitution should be understood as clause meaning. This Gricean view provides foundations for the theory that is sometimes called “original meaning originalism” or “the new originalism.”

This theory of constitutional meaning is developed in the context of commentary on Steven D. Smith's recent book, “Law's Quandary.” Smith argues that the meaning of legal texts must ultimately be cashed out in terms of the intentions of some author or authors. This essay examines that claim in depth and argues that Smith's view is mistaken. The meaning of the Constitution is not determined by the semantic intentions of the drafters or ratifiers; rather, the best theory of the meaning of the Constitution is based on the ordinary or technical meaning of its words and phrases as they would have been understood by the relevant audiences, citizens and lawyers, at the times particular constitutional provisions were adopted and promulgated.

Part I is entitled “Introduction: Talking and Texting,” and it introduces the Gricean themes of the essay in the context of “text messages” or “texting.” Part II is called “Constitutional Texting” and it situates the essay in contemporary constitutional theory. Part III is “Smith,” and relates the themes of the essay to Smith's book, “Law's Quandary,” in the context of Paul Grice's theory of meaning. Part IV is called “Framer's Meaning and Clause Meaning” and it develops a Gricean and anti-Smithian account of constitutional meaning. Part V is “Conclusion: How to Do Things with Clauses,” and it argues that successful constitutional texting requires that framers and interpreters attend to clause meaning as the meaning of the Constitution.