M E M O R A N D U M. July 23, Georgetown Summer Workshop Participants. Lawrence B. Solum. Draft of The Fixation Thesis.

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1 M E M O R A N D U M July 23, 2015 To: From: Re: Georgetown Summer Workshop Participants Lawrence B. Solum Draft of The Fixation Thesis Dear Colleagues, Attached you will find a partial first draft of The Fixation Thesis. This partial draft includes what I consider to be the most important part of the article, which begins on page 31 and is entitled Three Arguments for the Constraint Principle. If you are pressed for time, I would suggest that you read only the Introduction and pages The entire draft is hot off the keyboard. I apologize in advance for the glitches there must be dozens of them. The argument is still at a very early stage of development. I do not anticipate submitting this to law reviews before February so please feel free to make suggestions that would require going back to the drafting board. This project will form the basis for two chapters of Originalism: In Theory the first volume of three that will develop the full statement of originalism. The second volume will be a guide to originalist methodology. The third volume will apply the theory and method to a set of illustrative substantive problems. Thank you for reading and attending the workshop! At the end of the draft you will find a handout that provides a guide to the terminology and key concepts.

2 D R A F T July 23, 2015 THE CONSTRAINT PRINCIPLE: ORIGINAL MEANING AND CONSTITUTIONAL PRACTICE * LAWRENCE B. SOLUM ** INTRODUCTION Originalism is a family of constitutional theories that agree that the original meaning of the constitutional text should constrain constitutional practice. We can express this idea as the Constraint Principle, 1 provisionally, the claim that (at a minimum) the content of constitutional doctrine and the decision of constitutional cases should be consistent with the original meaning of the constitutional text. The aim of this article is to explicate and justify the Constraint Principle. Originalists also agree on a second idea, that the linguistic meaning (or communicative content) of the constitutional text is fixed when each provision is framed and ratified. We can call this second idea the Fixation Thesis, and that thesis defended elsewhere. 2 Together, constraint and fixation form the core of contemporary originalist theory. Originalists agree on fixation and constraint, but they disagree about other things. The dominant strain of contemporary originalism emphasizes the public meaning of the constitutional text, but others focus on the original intentions of the framers or the original methods of constitutional interpretation and construction. The core of agreement and the differences lead to two distinct modes of originalist theorizing, which we can call ecumenical and sectarian. For the most part, this Article will elucidate and defend the Constraint Principle from an ecumenical perspective, emphasizing common ground and considering the implications of the variations among originalists for the articulation and justification of constraint. 3 This Article has two principal aims. The first aim is to explicate the Constraint Principle. That task has two parts. First, we will identify the range of possible views about * 2015 by the author. Permission is hereby granted to reproduce this work in whole or in part (including distribution via the Internet) for educational or scholarly purposes. The author requests that any reproduction provide a citation to the work that includes the author s name, the title, and the journal or website from which the article was obtained. ** Carmack Waterhouse Professor of Law, Georgetown University Law Center. 1 The Constraint Principle is capitalized to indicate that the phrase is used as a proper noun phrase that names the principle of constraint that is formulated in this Article. A similar convention will be used other elements of the theory on offer here and in related work. 2 Lawrence B. Solum, The Fixation Thesis: The Original Meaning of the Constitutional Text, 91 NOTRE DAME L. REV. 1 (forthcoming 2015). 3 My own sectarian view is a form of what we can call Public Meaning Originalism. I will defend the core component of this view in The Public Meaning Thesis, a work in progress.

3 Lawrence B. Solum the contribution that the constitutional text should make to constitutional practice. At one extreme is the view that the text should play no role at all except as a symbolic representation of national unity similar to the American. A second position, held by many living constitutionalists is that original meaning plays an important role in constitutional practice, but that role is not constraining: the second position is exemplified by the pluralist approaches to constitutional theory that conceive of constitutional law as a complex argumentative practice constituted by multiple modalities of justification. A third position is that constitutional practice must be consistent with the communicative content of the constitutional text but that constitutional doctrines can supplement the original meaning in various ways. And a fourth position is that all of the content of constitutional doctrine must be derived from the communicative content of the constitutional text. In this Article, I will focus on what I call Constraint as Consistency or the Minimalist Version of the Constraint Principle the form of constraint that can serve as the least common denominator among originalist views and mark the divide between originalist and nonoriginalist constitutional theories. The second aim of this article is to explore the normative justifications for the constraint principle. The core of that effort will be the presentation of three arguments for constraint. The first argument is that originalism is the best available alternative to judicial tyranny: if the Supreme Court is not constrained by the constitutional text and has the ultimate and unreviewable power to make constitutional law with binding force, the result is a juristocracy that satisfies the criteria for tyranny and is inconsistent with the ideal of the rule of law. Call this first justification for constraint, the Argument from Judicial Tyranny. 4 The second argument is that Constitution itself established a group agent the United States and that the Constitution provides constraining reasons for the group agent and individual persons when they voluntarily assume a role within the group agent. The argument from group agency is especially clear in the case of officials who swear an oath to support this Constitution 5 or to preserve, protect and defend the Constitution of the United States 6 Call the second justification for constraint the Argument from Group Agency. 7 The third argument is that justifications of constitutional decisions in compliance with the constraint principle is essential to constitutional legitimacy, because these justifications satisfy the requirements of public reason and transparency. The argument from legitimacy becomes clear and compelling when we consider the alternative the justification of constitutional decisions on the basis of the private constitutional preferences of the justices, reasons would undermine legitimacy if made transparent. Call the third justification the Argument from Transparency. 8 Here is the roadmap. Part I explores the role of the constraint principle in contemporary constitutional theory, answering the question what is originalism? and laying out the most important forms of nonoriginalism and living constitutionalism. Part II excavates the conceptual foundations of the idea of constraint and examines the various forms that 4 See infra Part IV.A. 5 U.S. CONST. Art. VI. 6 U.S. CONST. Art. II, Sec See infra Part IV.B, p See infra Part IV.C, p. 38.he 2

4 The Constraint Principle constraint could take. Part III frames the debate over the constraint principle by exploring the various forms that justification could take and considering the role of the burden of persuasion in the debate. Part IV sets forth three justifications for the constraint principle, the Arguments from Judicial Tyranny, Group Agency, and Transparency. Part V considers some alternative justifications for constraint. Part VI considers various objections to the constraint principle. Part VII reconsiders the rivals of originalism. The Article ends with a Conclusion. I.!THE ROLE OF THE CONSTRAINT PRINCIPLE IN CONSTITUTIONAL THEORY Perhaps the most important debates in contemporary constitutional theory cluster around the disputes between originalists and living constitutionalists. Although the disagreement sometimes seems to focus on the idea of fixation, the true and deep points of contention mostly focus on constraint. Sometimes these disagreements revolve around questions of determinacy, with some nonoriginalists taking the position that meaning of the constitutional text cannot constrain because it is indeterminate. Ultimately, questions about the degree to which the meaning underdetermines constitutional practice are empirical or theoretical. But there is an even more fundamental normative disagreement among contemporary constitutional theorists. To the extent that the constitutional text is clear, originalists believe that it is binding: to put it another way, we owe a duty of fidelity to the original meaning of the Constitution. Nonoriginalists think otherwise. Although they may believe that the constitutional text is worthy of respect and consideration, they reject the claim that the meaning of the text provides hard limits constitutional practice. Somewhat contentiously, we can say that nonoriginalists believe that judges have the power to override the meaning of the text. That is, nonoriginalists reject the Constraint Principle. The function of this Part of the Article is to investigate the role of the Constraint Principle in contemporary constitutional theory. That investigation can begin by elucidating the nature of originalism, starting with the observation that originalism is a family of constitutional theories. A.!Originalism as a Family of Constitutional Theories What is originalism? In prior work, I have argued that originalism is a family of constitutional theories organized around a core of shared ideas. Almost all originalists agree with fixation and constraint, which we can express in a preliminary way as follows:!! The Fixation Thesis: The meaning (or more precisely communicative content) of the constitutional text is fixed at the time each provision is framed and/or ratified. The Constraint Principle: Constitutional practice, including the elaboration of constitutional doctrine and the decision of constitutional cases, should be constrained by the original meaning of the constitutional text. At a minimum, constraint requires that constitutional practice be consistent with original meaning (as specified below). 3

5 Lawrence B. Solum Originalists agree on fixation and constraint, but they disagree on other questions. The most important area of disagreement concerns the nature of original meaning. Among the important variations are the following:! Public Meaning: The original meaning is the public meaning of the constitutional text.! Framers Intentions: The original meaning is provided by the framer s intentions. Intentionalism has further variants, including forms that focus on purposive intentions and communicative intentions.! Ratifiers Understandings: The original meaning is given by the understandings of the ratifiers of each provision.! Original Methods: The original meaning is the meaning that would be given to the text by the original methods of constitutional interpretation and construction. Any particular originalist theory will combine fixation and constraint with corresponding understanding of original meaning. For example, Public Meaning Originalism affirms the Fixation Thesis and Constraint Principle with the Public Meaning Thesis the claim that the original meaning of the constitutional text is a function of the conventional semantic meaning of the words and phrases in the public available context of constitutional communication. Originalists also disagree about the extent of constitutional underdeterminacy and the role of constitutional construction. Some originalists may believe that the original meaning is thick and hence that constitutional underdeterminacy is rare or nonexistent. Other originalists may believe that the answers to some constitutional questions are underdetermined by the constitutional text: underdetermination can result from language that is vague, open-textured, or irreducibly ambiguous, or from gaps or contradictions within the text: let us call the thesis that significant constitutional underdeterminacy exists the Fact of Constitutional Undeterdeterminacy. And yet another group of originalists may believe that specific provisions of the text are unclear but that the text as a whole is determinate because it implicitly contains default rules for example, a default rule of deference to elected officials where the text does not otherwise determine the outcome. Finally, some originalists embrace a distinction between interpretation and construction. The notion of a distinction between interpretation and construction goes back at least as far as 1839 when it was articulated (in a different from) by Franz Lieber in his Legal and Political Hermeneutics. 9 The modern version of the distinction appears in twentieth-century treatises on contract law by Corbin and Williston 10 and has been deployed in many judicial decisions FRANCIS LIEBER, LEGAL AND POLITICAL HERMENEUTICS 43 44, 111 n.2 (Roy M. Mersky & J. Myron Jacobstein eds., Wm. S. Hein & Co. 1970) (1839). Lieber s version of the distinction does not explicitly differentiate communicative content and legal content Williston, Contracts (3d ed.1961); 3 Corbin, Contracts (1960 & Supp.1980). 11 See Fausel v. JRJ Enters., Inc., 603 N.W.2d 612, 618 (Iowa 1999); In re XTI Xonix Technologies Inc., 156 B.R. 821, 829 n. 6 (D.Ore.1993); Berg v. Hudesman, 115 Wash.2d 657, 663, 801 P.2d 222, 226 (1990). More examples are collected in Lawrence B. Solum, Originalism and Constitutional Construction, 82 FORDHAM L. REV. 453, (2013). 4

6 The Constraint Principle For the purposes of this Article, I will use the words interpretation and construction in stipulated technical senses, as follows: Constitutional Interpretation: The phrase constitutional interpretation is stipulated to refer to the activity of that discerns the communicative content (linguistic meaning) of the constitutional text. Constitutional Construction: The phrase constitutional construction is stipulated to refer to the activity that determines the content of constitutional doctrine and the legal effect of the constitutional text (including the decision of constitutional cases by the courts). 12 The phrase Interpretation-Construction Distinction will be used to designate the distinction as articulated in this way. The term New Originalism 13 will be used in this Article to name a version of originalism that embraces the Fixation Thesis, the Constraint Principle, Public Meaning Originalism, the Interpretation-Construction Distinction, and the Fact of Constitutional Underdeterminacy. Given the Fact of Constitutional Underdeterminacy and the Interpretation-Construction Distinction, new originalists characteristically believe in the existence of what we can call construction zones the cases and issues with respect to which the communicative content of the constitutional text does not fully constrain constitutional practice. B.!The Constraint Principle and the Debate Over Originalism and Nonoriginalism What role does the Constraint Principle play in debates about originalism and living constitutionalism? Before we answer that question, we need to recognize that in this area of constitutional theory, the terminology itself is contested. We can begin 1.!Metalinguistic Negotiation: What Should Count as Originalism, Nonoriginalism, and Living Constitutionalism? Like the term originalism, the word nonoriginalism and the phrase living constitutionalism do not have precise and universally accepted definitions. Rather, debates about originalism are characteristic by disagreements over terminology and sometimes these disagreements are just as sharp and rancorous as the substantive disagreements with which they are associated. Borrowing from the philosophy of language, we can use the idea of metalinguistic negotiation 14 to refer to the process by which the meaning of words like originalism and 12 These definitions were presented in Solum, supra note 11, 457 (2013). 13 See Evan S. Nadel, The Amended Federal Rule of Civil Procedure 11 on Appeal: Reconsidering Cooter & Gell v. Hartmarx Corporation, 1996 ANN. SURV. AM. L. 665, 691 n. 191 ( An example of the textualism to which I refer is the new originalism theory often associated with Justice Scalia. ); Randy E. Barnett, An Originalism for Nonoriginalists, 5 Loy. L. Rev. 611, 620 (1999); Keith Whittington, The New Originalism, 2 GEO. J.L. & PUB. POL Y 599 (2004). 14 Plunkett, David, and Timothy Sundell, Disagreement and the Semantics of Normative and Evaluative Terms, 13 PHILOSOPHERS' IMPRINT 23 ( 2013); Plunkett, David, and Timothy Sundell, Dworkin's Interpretivism and the Pragmatics of Legal Disputes, 19 LEGAL THEORY 3 (2013); Plunkett, David, and 5

7 Lawrence B. Solum phrases like living constitutionalism are contested (adversarially) or negotiated (cooperatively). These words and phrases represent theoretical concepts that are shaped differently by different theorists. On the one hand, we want our theoretical vocabulary to be theoretically precise and conceptually clear. On the other hand, we would like our terms to reflect actual usage. When the usage itself is inconsistent and when even individual theorists do not formulate their concepts precise, the result can easily be a muddle of miscommunication. We can deal with this problem in a variety of ways. Constitutional theorists might cooperatively seek a common, conceptually clear, and precise vocabulary. Or they might engage in a contest, advancing reasons for and against various ways of cleaving conceptual space on the basis of premises drawn from conceptual ethics. But these strategies require engagement by the community of constitutional theorists over time. Given the current state of terminological disorder, we can proceed in a different way by stipulating definitions and explicitly recognizing that stipulations suspend but do not end the process of metalinguistic definition. Let us stipulate the following definitions for the purposes of this Article:! Originalism: Stipulate that a constitutional theory is a form of originalism if that theory affirms the Fixation Thesis and a version of the Constraint Principle that is at least as strong as the minimalist version and if the theory includes some plausible account of how original meaning is determined (e.g., original intentions, public meaning, ratifiers understandings, or original methods).! Nonoriginalism: Stipulate that a constitutional theory is a form of nonoriginalism if it denies either the Fixation Thesis or the Minimalist Version of the Constraint Principle or both.! Living Constitutionalism: Stipulate that a constitutional theory is a form of living constitutionalism if it affirms that the content of constitutional doctrine should change in response to changing circumstances and values. Given these definitions, it is possible that some forms of originalism are compatible with some forms of living constitutionalism. For example, a living constitutionalist might accept the Constraint Principle but affirm the Fact of Constitutional Underdeterminacy: an originalist of this sort would allow for changing constitutional doctrine within constructions zones whose outer limits were set by the communicative content of the constitutional text. But other living constitutionalists will reject the Constraint Principle and affirm that constitutional actors may act in ways that are inconsistent with the text: that is, some living constitutionalists are nonoriginalists. And there are some originalists who may reject all forms of living constitutionalism: originalists of this kind may believe that the communicative content of the constitutional text is sufficiently rich or thick so as to fully determine the content of constitutional doctrine. Other originalists may believe that the there are constitutional default rules (such as a default rule of Thayerian deference) that make the resolution of constitutional cases. Timothy Sundell, Antipositivist Arguments from Legal Thought and Talk: The Metalinguistic Response in PRAGMATISM, LAW, AND LANGUAGE (G. Hubb and D. Lind eds. 2014). 6

8 The Constraint Principle 2.!Forms of Nonoriginalism Given these definitions, we can now identify the contending views in contemporary constitutional theory that count as nonoriginalist because they reject the constraint principle. a)!multiple Modalities Consider first the view that constitutional law is the outcome of a complex argumentative practice constituted by multiple modalities of constitution argument, a view articulated by articulated by Phillip Bobbitt 15 and Stephen Griffin 16 and their views are closely related to Richard Fallon s influential approach, which he labels as constructivist. 17 The gist of Bobbitt and Griffin s version of this approach is that there are multiple modalities or a plurality of methods for establishing the truth or validity of a proposition of constitutional law. Bobbitt s list of the modalities includes the following: historical (relying on the intentions of the framers and ratifiers of the Constitution); textual (looking to the meaning of the words of the Constitution alone, as they would be interpreted by the average contemporary man on the street ); structural (inferring rules from the relationships that the Constitution mandates among the structures it sets up); doctrinal (applying rules generated by precedent); ethical (deriving rules from those moral commitments of the American ethos that are reflected in the Constitution); and prudential (seeking to balance the costs and benefits of a particular rule). 18 The multiple modalities approach qualifies as a form of nonoriginalism to the extent that it denies that the textualist modality operates as a constraint on the others. This understanding of the multiple modalities approach can be illustrated graphically as follows: 15 See PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION (1991). 16 See Stephen M. Griffin, Pluralism in Constitutional Interpretation, 72 Tex. L. Rev. 1753, 1753 (1994) ( Pluralistic theories of constitutional interpretation hold that there are multiple legitimate methods of interpreting the Constitution. ).. 17 Richard H. Fallon, A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV (1987). 18 Bobbitt, Constitutional Interpretation, supra note 15, at (emphasis added and paragraph structure altered for clarity). 7

9 Lawrence B. Solum Structural Doctrinal Textual Ethical Historical Constitutional* Interpretation* &* Construction Prudential Figure 1: Nonoriginalist Multiple Modalities This understanding of the multiple modalities approach is premised on the idea that the modalities are flat they lack hierarchical structure. This premise leads to the conclusion that the textualist modality (which we shall assume is equivalent to original meaning ) can be overridden by any of the other modalities on the basis of the process of constitutional argumentation. This consequence entails the further conclusion that the multiple modalities approach denies the Constraint Principle, and hence is a form of nonoriginalism. Thus, the multiple modalities approach is a version of Constructive Nonoriginalism. This understanding of the multiple modalities approach is not inevitable. One can imagine a variation in which the modalities are hierarchically structured with a lexical ordering that prioritizes the textualist modality (and hence original meaning). This variation would look something like the following diagram, which incorporates the interpretation construction distinction: Step*One:*Interpretation Textualist Step*Two:*Construction*(Constrained*by*Original*Meaning) Doctrinal Structural Ethical Prudential Figure 2: Originalist Variant of Multiple Modalities On this alternative understanding of the multiple modalities approach, we would have a form of originalism, because the constitutional doctrines that emerge from Step Two must be consistent with the original meaning that is identified in Step One. Bobbitt himself affirms the nonoriginalist version and hence rejects the Constraint Principle. 8

10 The Constraint Principle b)!constructive Interpretation Ronald Dworkin calls his general interpretive method (including his view of constitutional interpretation and construction) constructive interpretation. 19 Dworkin is sometimes hard to pin down, and his theory was elaborated in many texts over the course of five decades. One understanding of Dworkin might be that because constructive interpretation aims to make our practices the best that they can be in light of the institutional history, his theory implies that meanings can change over time. Our moral readings of the constitutional text are not fixed, but instead evolve in response to changing circumstances and our evolving constitutional values. 20 But is this correct? Or is Dworkin s theory actually consistent with the Fixation Thesis? There are some very good reasons to think that Dworkin actually accepts fixation. For example, in 1997, he introduced an example from Milton s Paradise Lost: Hamlet said to his sometime friends, I know a hawk from a handsaw. The question arises it arises for somebody playing the role, for example whether Hamlet was using the word hawk that designates a kind of a bird, or the different word that designates a Renaissance tool. Milton spoke, in Paradise Lost, of Satan s gay hordes. Was Milton reporting that Satan s disciples were gaily dressed or that they were homosexual? 21 His answer to these questions seems to endorse the Fixation Thesis in all but name. The italics mark emphasis that I have added: We must begin, in my view, by asking what on the best evidence available the authors of the text in question intended to say. That is an exercise in what I have called constructive interpretation. It does not mean peeking inside the skulls of people dead for centuries. It means trying to make the best sense we can of an historical event someone, or a social group with particular responsibilities, speaking or writing in a particular way on a particular occasion. If we apply that standard to Hamlet, it s plain that we must read his claim as referring not to a bird, which would make the claim an extremely silly one, but to a Renaissance tool. Hamlet assured his treacherous companions that he knew the difference between kinds of tools and knew which kind he was dealing with in them. In the case of poor Satan s gay hordes, there s a decisive reason for thinking that Milton meant to describe them as showy, not homosexual, which is that the use of gay to mean homosexual postdated Milton by centuries RONALD DWORKIN, LAW S EMPIRE (1986). 20 The phrase moral reading is Dworkin s. See RONALD DWORKIN, FREEDOM S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 2 3 (1996), but it is now strongly associated with James Fleming s Dworkinian theory of constitutional interpretation and construction. See James E. Fleming, Fidelity, Change, and the Good Constitution, 62 AM. J. COMP. L. 515, 515 (2014). 21 Dworkin, The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve, 83 Fordham L. Rev. 1249, (1997). 22 Id. at

11 Lawrence B. Solum In the italicized passage, Dworkin recognizes the phenomenon of linguistic drift and argues that the relevant mean[ing] of the word gay is a function of its conventional semantic meaning at the time Milton wrote. But that is not the end of the matter. Dworkin continues to discuss the role of the text in constitutional practice, juxtaposing his view with that of Laurence Tribe. Here is the passage, which includes an internal (double-indented) quotation from Tribe: Tribe endorses a very strong form of textual fidelity. Tribe states: I nonetheless share with Justice Scalia the belief that the Constitution s written text has primacy and must be deemed the ultimate point of departure, that nothing irreconcilable with the text can properly be considered part of the Constitution; and that some parts of the Constitution cannot plausibly be open to significantly different interpretations. 23 That is a stronger statement of textual fidelity than I [Dworkin] would myself endorse, because, as I said, precedent and practice over time can, in principle, supersede even so basic a piece of interpretive data as the Constitution s text when no way of reconciling them all in an overall constructive interpretation can be found. I agree with the Tribe of this statement, however, that the text must have a very important role: We must aim at a set of constitutional principles that we can defend as consistent with the most plausible interpretation we have of what the text itself says, and be very reluctant to settle for anything else. 24 Dworkin does not use the same conceptual vocabulary as we have been employing here, but his point can be translated. Dworkin recognizes that the communicative content of a text is fixed at the time the text is written. But in the case of the constitutional text, the legal content of constitutional doctrine can change, because the constructive interpretation of the law as a whole can override the communicative content. In other words, Dworkin accepts fixation as a thesis about interpretation (communicative content), but rejects the Constraint Principle. Using the typology developed above, we would classify Dworkin as a nonoriginalist. c)!common Law Constitutionalism In his book entitled, The Living Constitution, 25 David Strauss has argued for a view that we might call, Common Law Constitutionalism. Again, we can consider two versions of the theory. The nonoriginalist version of Common Law Constitutionalism would affirm that constitutional law is best conceived as the outcome of a common-law process that takes into account the original meaning of the constitutional text, but it not constrained by that meaning: this would be a form of Constructive Nonoriginalism, because it would explicitly reject that Constraint Principle. But we can also imagine an originalist version of Common Law Constitutionalism. The originalist version would affirm that constitutional law is best conceived as the outcome of 23 Laurence H. Tribe, Comment, in ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 23 (1997). 24 Dworkin, supra note 21, at DAVID A. STRAUSS, THE LIVING CONSTITUTION (2010). 10

12 The Constraint Principle a common-law process but include some version of the Constraint Principle. Assuming that Common Law Constitutionalism accepts the Fixation Thesis, the resulting theory would qualify as a member of the originalist family of constitutional theories. What is Strauss s actual position? Consider the following passage from The Living Constitution: We cannot make an argument for any constitutional principle without purporting to show, at some point, that the principle is consistent with the text of the Constitution. That is an essential element of our constitutional culture. And no provision of the Constitution can be overruled in the way a precedent can, or disregarded in the way original understandings often are. 26 Strauss s book is lucid and elegant, but very compact and so there are some ambiguities here. On the one hand, this passage might be read as an affirmation of the minimalist version of the Constraint Principle, that is Constraint as Consistency. Strauss seems to affirm both elements of Constraint as Consistency. The first element requires consistent of the content of constitutional doctrine with the communicative content of the constitutional text: Strauss explicitly says that constitutional principles must be consistent with the text and no provision of the Constitution can be overruled. The second element requires that every element of the text be reflected in constitutional doctrine: Strauss explicitly says that no provision can be disregarded. But Strauss also says that original understandings can be disregarded, but it is not clear what he means by understandings. To be fair to Strauss, we would need to undertake a painstaking examination of all his writings and precisely reconstruct his operative conceptions including meaning, understanding, and text. My impression is that such a reconstruction would reveal that Strauss employs the term meaning in multiple senses, that by understandings he means application beliefs, not communicative content (or linguistic meaning), and that his theoretical apparatus collapses the interpretation-construction distinction. Hence, Strauss s theoretical writings underdetermine the question whether his version of Common Law Constitutionalism is originalist or nonoriginalist. He simply does not have a theoretically precise answer to the question whether the legal content of constitutional doctrine must be consistent with the communicative content of the constitutional text. Whatever position Strauss would ultimately take on the Constraint Principle, we can formulate a nonoriginalist version of common-law constitutionalism. This version of common-law constitutionalism would allow judges to make decisions that are inconsistent with the constitutional text so long as the decisions were made in accord with common law methods. d)!multiple Meanings A fourth version of nonoriginalismis based on the idea that texts have multiple meanings rather than a single fixed meaning: call this the Multiple Meanings Theory of constitutional interpretation. 27 The gist of the argument would go something like this: texts 26 Id. 27 My reconstruction of the argument has been influenced by a work-in-progress by Cass Sunstein, see Cass R. Sunstein, There Is Nothing that Interpretation Just Is, 11

13 Lawrence B. Solum do not have a single meaning (in the linguistic sense); instead, they have multiple meanings. Because there are multiple meanings, we must select between them, and this process of selection must be guided by normative considerations. Originalism is false, because it privileges one of the multiple meanings (such as original intent or original public meaning) and therefore begs the crucial normative questions as to which meaning should govern in any particular case. Some of the premises of the Multiple Meanings Theory are correct, but from them it does not follow that the Constraint Principle is false. Mark Greenberg makes the point that there is more than type of linguistic content in the context of a discussion 28 of Smith v. United States 29 the Supreme Court case in which the question was whether offering to trade a gun for cocaine constituted use of a firearm for the purpose of a penalty enhancement provision. 30 As the contemporary study of language and communication has made clear, there are multiple components and types of linguistic content. In Smith, there are at least two types of linguistic content plausibly associated with the statutory text that would yield opposite outcomes in the case. First, there is the semantic content of the statutory text roughly, what is conventionally encoded in the words. Second, there is the communicative content roughly, what the legislature intended to communicate (or meant) by enacting the relevant text. 31 So far, so good. Semantic content is distinct from communicative content. Moreover, the Gricean speaker s meaning of an utterance is not necessarily identical to the meaning that the audience actually takes from the utterance. We can translate Greenberg s point into constitutional terms. For the sake of simplicity, we can focus on four distinct meanings :! Framers Meaning: The content that the authors of a constitutional provision intended to convey to the relevant readers (e.g., the public) through the readers recognition of the framers communicative intentions.! Original Clause Meaning: The content that competent readers of a constitutional provision would have attributed to a constitutional provision, given the conventional semantic meanings of the words and phrases given their! syntactic structure, but without consideration of context. Ratifiers Meaning: The content that the ratifiers (or the subset of ratifiers who were competent speakers of English and who actually read the text) actually attributed to a constitutional provision.! Reasonable Contemporary Meaning: The meaning that a reasonable contemporary reader would attribute to the text given contemporary semantics and syntax and the contemporary context of application. (August 29, 2014), and by exchanges with Richard Fallon. My version of the argument should not be taken as representing their positions. 28 Mark Greenberg, The Moral Impact Theory of Law, 123 YALE L.J. 1288, (2014) U.S. 223 (1993). 30 Id. 31 Greenberg, supra note 28, at

14 The Constraint Principle The first three forms of meaning are all originalist in the sense that they accept the fixation thesis. Framer s intentions are fixed at the time each provision is authored and original clause meaning is similarly fixed. Ratifiers understandings are fixed at the time of ratification. If the Multiple Meanings theory were limited to these three meaning types it would be a form of originalism. It would differ from Public Meaning Originalism of Original Intentions originalism because it would allow judges to pick and choose between the three forms of original meaning. And because Original Clause Meaning is acontextual, it creates substantial construction zones. The Multiple Meanings theory explicitly rejects the Constraint Principle when it adds Reasonable Contemporary Meanings to the list from which constitutional actors may choose. This is not to say that the Multiple Meanings views rejects the idea of constraint altogether. It imposes a form of constraint, but that form of constraint is untethered from the constitutional content or linguistic meaning of the constitutional text. It would, for example, allow judges to base their decisions on meanings created by linguistic drift the phenomena by which the conventional semantic meanings of words change over time. This opens the door to a process of constitutional change that begins with constitutional actors arguing for a new meaning of a constitutional word or phrase: commerce should be understood as social interaction and not as trade in goods. Once the new usage becomes established, constitutional actors are then entitled to rely on the new sense of the word. Because shifts in meaning through linguistic drift are not themselves limited by the Constraint Principle, this version of the Multiple Meanings theory authorizes the creation of constitutional doctrines that are inconsistent with original meaning. So the question whether the Multiple Meanings theory violates the Constraint Principle depends on the precise set of meanings that is authorized by a particular version of the theory. Versions of Multiple Meanings that are limited to original meanings do not violate constraint, but once a nonoriginal meaning is admitted to the list, the version that allows the nonoriginal meaning should be classified as nonoriginalist (in the sense in which that term is used in this Article). e)!the Supreme Court as Superlegislature Consider a final view. A constitutional theorist might affirm the view that the Supreme Court should frankly operate as a superlegislature and explicitly embrace the power to override the constitutional text by promulgating amending constructions (judicial doctrines that are inconsistent with the communicative content of the constitution). This view is rarely embraced explicitly as a normative theory. The label superlegislature (or superlegislature ) is frequently used to express a criticism as it was when first introduced by Justice Brandeis (joined by Justice Holmes) in Max Lerner made the criticism explicit in Viewed thus the Court through its power to veto legislation has also the power to channel economic activity. In that sense it has been often called a super-legislature, 32 Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 534, 44 S. Ct. 412, 421, 68 L. Ed. 813 (1924) (Brandeis J., dissenting (To decide, as a fact, that the prohibition of excess weights is not necessary for the protection of the purchasers against imposition and fraud by short weights, that it is not calculated to effectuate that purpose, and that it subjects bakers and sellers of bread to heavy burdens, is, in my opinion, an exercise of the powers of a super-legislature-not the performance of the constitutional function of judicial review.). 13

15 Lawrence B. Solum exercising powers tantamount to the legislative power, but more dangerously since it is not subject to the same popular control. 33 This critical usage of superlegislature has been echoed by subsequent scholars. 34 And the Supreme Court itself denied that it sits a super-legislature in Griswold v. Connecticut. 35 There is logical space for nonoriginalists to explicitly embrace the notion that the Supreme Court acts a perpetual constitutional convention (with the power to adopt amending constructions by five votes out of nine). And this view has been articulated by Brian Leiter in his forthcoming essay, Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature. 36 Leiter writes, [A]ll political actors know that the U.S. Supreme Court often operates as a superlegislature, and thus that the moral and political views of the Justices are decisive criteria for their appointment. This almost banal truth is, however, rarely discussed in the public confirmation process, but is common knowledge among political and legal insiders. To be sure there is media speculation about the political predilections of the nominees, but their actual moral and political views are treated as off limits in the real confirmation process. This anti-democratic secrecy is, in my view, deeply wrong and must be replaced with a realistic acknowledgment of the role of the Supreme Court as a political actor of limited jurisdiction. 37 Leiter is not explicitly advocating the proposition that the Supreme Court should act as a superlegislature; rather his point is that its role as a superlegislature should be made public and transparent. But it is at least possible that some nonoriginalists privately hold the view that the Supreme Court should act as a superlegislature adopting amending constructions of the constitutional text on the basis that these amendments are desirable. The difficulty with this position is that it is difficult to affirm in public, because it seems likely that any constitutional actor who affirmed this position transparently would meet substantial political resistance. Presidents do not openly affirm that they select Justices who will override the constitutional text. Judicial nominees are likely to identify as originalists, even if those in the know doubt the sincerity of their protestations. 38 But even if the superlegislature view is not made public, it may in fact be the view affirmed in private by Presidents, Senators, Justices, and constitutional theorists. 33 Max Lerner, The Supreme Court and American Capitalism, 42 YALE L.J. 668, 696 (1933). 34 William W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439, 1447 (1968) ( A court need not weigh or balance ; it need simply apply the literal mandate of a given constitutional provision flatly to forbid government from conditioning its largess on any waiver of such a provision regardless of the circumstances. A court may thus avoid any unseemly appearance of acting as a superlegislature. ) U.S. 479, 482 (1965). 36 Brian Leiter, Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature, HASTINGS LAW JOURNAL (forthcoming 2015), available at (February 27, 2015). 37 Id. at Confirmation Hearing on the Nomination of Elena Kagan to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 62 (2010) (statement of Elena Kagan). 14

16 The Constraint Principle It almost goes without saying that the superlegislature view can be formulated so that it is inconsistent with the Constraint Principle. Indeed, the use of the phrase superlegislature implies that the Court goes beyond interpretation and is playing the role of a constitutional convention that creates and amends constitutional provisions. For the purposes of this essay, we will assume that the Superlegislature theory has this feature and hence that it is a form of nonoriginalism. 3.!Some Motivations for and Consequences of Metalinguistic Negotiation Over Originalism and Living Constitutionalism The word originalism and the phrase living constitutionalism are both ideologically charged. Originalism has been associated with constitutional conservatism and living constitutionalism with progressive or liberal constitutionalism. Originalism is associated with the Reagan administration and especially with Attorney General Ed Meese and the Office of Legal Counsel during Reagan s second term. And contemporary originalism is associated with Justices Antonin Scalia and Clarence Thomas. Living Constitutionalism is associated with pre-new Deal progressive constitutional theory and with Justice William Brennan. On both sides, there is a tendency to associate the labels with associated political and ideological positions. It is my belief that this results in a tendency to choose sides in the debates over originalism and living constitutionalism. If originalists are the good guys and living constitutionalists are the bad guys (or vice versa), then consequences follow. Progressives are likely to believe that originalism is obviously false and pernicious, and conservatives are likely to believe the same thing about living constitutionalism. Both sides are likely to believe that it simply impossible to affirm what we can call Constitutional Theory Compatibilism the view (adopted in this Article) that some forms of living constitutionalism are compatible with some forms of originalism. Compatibilism would imply that one could be simultaneously conservative and progressive, but these positions are conceived oppositionally and are demarcated on the basis of differences and not agreements. For this reason, metalinguistic negotiation over the meaning of originalism and living constitutionalism is likely to be contested and not cooperative. If this diagnosis is correct, then it will have consequences for the process of metalinguistic negotiation over the terms originalism and living constitutionalism. Some progressives are likely to insist that the criteria for what counts as originalism must include an ideological component. Someone who argues that the original meaning of the constitutional text is consistent with canonical progressive outcomes (such as a right to abortion, a right to same sex marriage, or expansive national legislative power) are not really originalists because such a person fails to satisfy the ideological component of the conception of originalism. Some conservatives will be similarly motivated: anyone who advocates for progressive outcomes must, by definition, be a living constitutionalist who rejects fidelity to the constitutional text as a fundamental political value. One way to think about the ideological dimension of metalinguistic negotiation over terminology in constitutional theory borrows from Bernard Williams s notion of a thick moral concept 39 for which descriptive and evaluative content are entwined. Similarly, 39 BERNARD WILLIAMS, ETHICS AND THE LIMITS OF PHILOSOPHY 1985). For additional commentary, see the essays collected in THICK CONCEPTS (Simon Kirchin ed. 2013). 15

17 Lawrence B. Solum originalism and living constitutionalism may be thick ideological concepts, for which ideological and descriptive-theoretical elements could combine to determine the application of the concept. Contestation over the proper conceptual shape of originalism and living constitutionalism is likely to be particularly sharp in connection with the constraint principle. Some progressive and liberal constitutional theorists may wish to resist the conclusion that their position should properly be labeled as originalist if they accept the Fixation Thesis and the Constraint Principle. For this reason, they may wish to draw the line between originalism and nonoriginalism at a point that allows them to claim that they do not support a judicial power to override the meaning of the constitutional text. In this connection it is useful to consider Mitchell Berman s suggestion that originalist theories can be classified according to the degree to which they are hard and soft. He writes: At the weakest end of the spectrum lies the view that the originalist focus (framers intent, ratifiers understanding, original public meaning, or what-have-you) ought not to be excluded from the interpretive endeavor. This view what we might call weak originalism maintains merely that the proper originalist object (whatever it may be) should count among the data that interpreters treat as relevant. At a polar extreme from weak originalism rest views that collectively I will label strong originalism. Strong originalism, as I will use the term, comprises two distinct subsets. Probably the most immediately recognizable originalist thesis holds that, whatever may be put forth as the proper focus of interpretive inquiry (framers intent, ratifiers understanding, or public meaning), that object should be the sole interpretive target or touchstone. Call this subtype of strong originalism, exclusive originalism. It can be distinguished from a sibling view a shade less strong viz., that interpreters must accord original meaning (or intent or understanding) lexical priority when interpreting the Constitution, but may search for other forms of meaning (contemporary meaning, best meaning, etc.) when the original meaning cannot be ascertained with sufficient confidence. Call this marginally more modest variant of strong originalism lexical originalism. 40 Berman then argues that the term Originalism should be reserved for what he calls strong originalism : As Dennis Goldford put it in his recent book-length examination of the originalism debate, what distinguishes originalism from non-originalism is the claim that the original understanding of the constitutional text always trumps any contrary understanding of that text in succeeding generations. Self-described originalists differ regarding countless details whether the proper interpretive focus is framers intent, ratifiers understanding, or original public meaning; whether the best reasons for originalism concern what it means to interpret a text, or what must be presupposed in treating a Constitution as binding, or how best to constrain judges and provide stability and predictability; whether extra-judicial constitutional interpretation is subject to the same constraints as is judicial constitutional interpretation; and so on. 40 Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. REV. 1, 10 (2009). 16