[by David Schwartz, guest blogger]
The prevailing version of originalism—known as “original public meaning” (OPM) originalism—purports to be an historical semantic inquiry. The legally controlling meaning of a particular word, phrase, or clause in the Constitution is what it would have meant to a hypothetical reasonable person during the ratification debates. As of ratification, these meanings became “fixed.” (A small point: June 1788 when the ninth state ratified and the Constitution was deemed to be effect, or later?) While originalism in all its flavors, including OPM originalism, has been subject to various damning criticisms, I would like to suggest a further critique of the concept of original public meaning that has not to my knowledge been advanced.
My claim is this: where the ratification debates reveal a dispute over multiple meanings that are semantically plausible, semantics cannot provide a basis to choose one over another. If this is right, then the range of disputed constitutional meanings that can arguably be addressed by OPM originalism is even narrower than its critics have suggested.
When pieces of text have just one plausible meaning, that meaning requires no discussion or explanation. The meaning goes without saying. When I used the word “Constitution” in the opening paragraph, I did not need to explain that I was referring to the United States Constitution proposed by the Philadelphia Convention of 1787 and ratified by eleven states in 1787-88. The original public meaning of “the Constitution” in the previous paragraph is plainly that particular constitution.
But suppose I were to say, “There was widespread belief that the original charter of government of the United States was deeply flawed.” Note here that my authorial intention is irrelevant under the theory of original public meaning: again, the determining factor is the “objective” meaning to a hypothetical reasonable reader.
Some actual reasonable readers could take me to be referring, again, to the Constitution. But others would suppose I meant the Articles of Confederation. (A few others might even wonder whether I was referring to the Declaration of Independence, which has been viewed with some plausibility as the first United States governmental charter.) Context might, of course, make all but one meanings of my phrase “charter of government” implausible, with the result that its meaning is as plain as my use of “the Constitution” in these paragraphs. But such context might itself be absent or disputed, as is the case with many constitutional provisions.
OPM originalism presupposes that historical inquiry into semantic meaning can produce, at least in some substantial number of contested cases, a uniquely correct meaning. But the very fact of a plausible difference of opinion about the meaning of “charter of government” precludes an original public meaning of that term. The problem is that the choice among possible meanings cannot be resolved by any criteria that can reasonably be called “semantic.”
This problem is an unexplored subset of the problem of ambiguity or indeterminacy that OPM originalists have acknowledged. They concede the existence of a “construction zone” in which constitutional meaning must be produced by non-originalist modes of argument (which they label “construction”), rather than by semantic analysis (which they label “interpretation”). One of the damning critiques of originalism observes that virtually all (or perhaps all) significant constitutional disputes wind up in this so-called “construction zone,” where original public meaning cannot supply a definitive answer. Originalists respond that some significant number of disputed meanings can be resolved in the “interpretation zone”—that is, by resolving disputes about semantic meaning.
But this is where my point may have bite. OPM originalists insist that their interpretive enterprise can resolve a significant number of questions of constitutional meaning that were debated during ratification. They choose a meaning that they deem the most plausible based on … what?
And here is the problem. Semantics cannot tell us about the relative plausibility of two or more linguistically plausible usages, when ultimate plausibility is a function of non-semantic criteria. Consider the meaning of the phrase “provide for” in the General Welfare Clause in Article I, section 8, clause 1 (“to provide for the common defense and general welfare”). Elsewhere in the constitution, “provide for” means “to legislate” (“to stipulate previously” in Webster’s 1828 dictionary): for instance, “to provide for the punishment of counterfeiting,” or “to provide for calling forth the militia” (Art. I., sec. 8., cls. 6, 15). Originalists maintain that “provide for” in the General Welfare Clause means “spend” (indeed, so does conventional doctrine), but commonality of usage in the language generally, or the ranked order of dictionary definitions, do not supply a satisfactory justification for this choice. Rather, those who debate the meaning of “provide for” consider the legal and political effects of their choice. An interpreter preferring a narrow grant of power would prefer “spend” over “legislate” as the meaning of “provide for.”
Once it is acknowledged that the preference for one meaning versus another is a function of legal and political, rather than semantic factors, semantics – assuming arguendo that commonality of usage “in the language” generally is a question of semantics – cannot resolve the debate. Even if it could be shown that “spend” was the meaning preferred by a majority of the “ratifying public,” such a majority rule is a political, not a semantic one.
In sum, there is no original public meaning – in the semantic sense argued by OPM originalists – for any constitutional text whose meaning was debated during ratification. This does not mean that the converse is true. Terms whose meaning becomes contested in later, unforeseen applications are not necessarily subject to semantic resolution merely because their semantic meaning was not debated in ratification. The disputed meaning of “citizen” in the Privileges and Immunities Clause in the Dred Scott case is an example. But the only candidates for resolution by OPM originalism are terms whose meanings were not debated during ratification.To pick one among two or more plausible candidate meanings that had support during the ratification debates is to move the question from semantic meaning to something else.