Legal Commentary

A major target of Larry Solum?s much-discussed ?semantic originalism? is the confused claim (which he attributes to many nonoriginalists) that normative considerations can transform the original meaning of the constitutional text. This claim is indeed confused, but Solum is mistaken in attributing it to sophisticated nonoriginalist theories, which for the most part are best understood as normative accounts of how judges and other interpreters should attribute legal (rather than linguistic) meaning to the constitutional text.

To be sure, most nonoriginalists would be unwilling to concede that their theories permit legal meaning to deviate from or override linguistic meaning. To this extent, they might be thought to contest, at least implicitly, Solum?s descriptive claim that original public meaning is the Constitution?s one true linguistic meaning (and to do so on normative, rather than positive, grounds). But this is essentially a terminological disagreement. Nonoriginalists are happy to acknowledge that their approach permits interpreters to depart from?indeed to contravene?original meaning. That, after all, is what makes them nonoriginalists. Their claim to honor the text?s linguistic meaning is a claim to honor other meanings, such as the plausible range of meanings present-day Americans would understand its words to bear.

Whether or not these represent linguistic meanings in the technical philosophical sense Solum is concerned with, they are plainly an intelligible object of inquiry. The important question is thus a normative one: whether these meanings, or original meaning, ought to be of overriding interest to constitutional interpreters. Of course, that is the same question originalists and nonoriginalists have always understood themselves to be debating. Solum?s heroic efforts to identify originalism with interpretation (carefully, openly defined as searching for the linguistic?which is to say original public?meaning of the text) change nothing.