[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.
