Mary Sarah Bilder on Originalism; Larry Solum Responds with Five Questions
In the Boston Globe, Mary Sarah Bilder (Boston College): The Constitution Doesn't Mean What You Think It Means (criticizing originalism).
At Legal Theory Blog, Larry Solum responds: Professor Bilder, Please Answer These Questions! Here's the fourth (of five):
Question Four: You wrote the following:
In 1787, the framers were struggling to save the United States from division, potential invasion, and collapse. No one had the luxury of even imagining that each and every word possessed an invariable, sacred meaning.
This passage suggests that originalists believe that the framers believed that each word of the constitutional text "possessed an invariable, sacred meaning." On what do you base this assertion? It is possible that you are referring to two distinct claims made by originalists: One claim is the Fixation Thesis, which claims that the communicative content of the constitutional text is fixed at the time each provision was framed and ratified? When you say "invariable" do you mean to refer to the Fixation Thesis? If so, do you deny that the framers would have expected that the words they used would have been interpreted according to the conventional semantic meanings of the relevant units of meaning (words or phrases) at time they were authored? Or do you believe that linguistic drift (or semantic shift) was anticipated by the framers and hence that they thought that the meaning of the document would change given accidental changes in meaning? If you are not referring to the Fixation Thesis, perhaps you mean the Constraint Principle: the idea that the original meaning of the text should constraint constitutional practice. Is that what you meant? I assume that your use of the word "sacred" is for rhetorical effect? If not, what did you mean by "sacred"?
And question five:
Originalism requires that the Constitution be a type of document literally beyond the capacity and purpose of the framers.
What do you mean by "literally beyond the capacity and purpose of the framers"? What precisely do you believe it is that originalism requires that is literally beyond the capacity of the framers? One possibility is that you believe that originalists require that the Constitution is fully determinate, answering all constitutional questions. Is that what you mean? If it is, then how do you square that assertion with the originalist theorizing since the late 1990s? In particular, how did your statement take into account the work of Keith Whittington, Randy Barnett, myself, and many others that marks the distinction between "interpretation" and "construction" and recognizes the existence of the underdeterminacy of particular provisions? Perhaps, you believe that all of the constitutional text has radically indeterminate communicative content? Please be specific about the sources upon which you relied for the "originalism requires" part of this assertion.
RELATED: Also at Legal Theory Blog, Professor Solum has an updated Legal Theory Lexicon entry for "The New Originalism". From the introduction:
Most law students will encounter “originalism” in their first course in constitutional law. Depending on the instructor, this encounter could be quite short or very extensive. Most law students will know that originalist constitutional theory is concerned with “original meaning,” but they may not know about the differences between versions of originalism that focus on “the original public meaning” versus “the original intentions of the framers,” much less “the original understandings of the ratifiers” or “the original methods of constitutional interpretation.” Most students are likely to encounter what is sometimes called “the Old Originalism”—the version of originalism that existed in embryonic form in the 1970s and early 1980s. The old originalism is associated with the idea that the constitution should be interpreted to conform to the original intentions of the framers—the group that drafted each provision. For the bulk of the constitutional text, drafting occurred in the Philadelphia Convention, but each of the amendments has its own drafting history. But in the 1980s and 1990s originalism began to change in significant ways, and in the late 1990s and early 2000s, scholars began to refer to “the New Originalism.”
This entry in the Legal Theory Lexicon focuses on what is called “the New Originalism.” Of course, labels like this are just names that carve up the theoretical landscape. For our purposes, “the New Originalism” refers to a cluster of originalist theories that embrace two ideas: (1) the claim that the original meaning of the constitution is its public meaning, and (2) the distinction between interpretation and construction. As always, the Lexicon is aimed at law students, especially first-years, with an interest in legal theory.