Debates about legal interpretation frequently bypass or give short shrift to the more basic concept of legal “meaning.” Seeking to rectify that deficiency, this Article explores the meaning of “meaning.” Examination of familiar terms of legal argument reveals an astonishing number of possible senses of that term—and, correspondingly, an equally large number of possible referents for ultimate claims concerning what legal provisions mean. These referents include a statutory or constitutional provision’s semantic or literal meaning, its contextual meaning as framed by the shared presuppositions of speakers and listeners, its “real” conceptual meaning, and its intended, reasonable, and previously interpreted meanings.
Proponents of interpretive theories such as textualism and originalism sometimes suggest that legal meaning depends on prelegal, linguistic facts that make one of these kinds or senses of meaning uniquely correct. But that suggestion reflects a misunderstanding about how language works. Framing the challenge for legal interpretation as that of choosing the normatively best referent for claims of legal meaning from among otherwise eligible candidates, this Article shows that textualism and originalism, in particular, lack the resources to make the unique, consistent, categorical selections and exclusions that some versions of those theories purport to achieve. Like a variety of other interpretive theories, they lapse into reliance on case-by-case normative judgments.
When understood against the background of a careful delineation of the choices that legal interpretation requires, the aspirations of textualism and originalism help to frame a fundamental question: Given the function of interpretive theories to guide or determine choices among otherwise plausible senses of legal meaning, should such theories do so on a categorical or a case-by-case basis? This Article advocates the latter approach. A due appreciation of the interpretive challenge—which frequently requires a choice among the literal, contextually framed and limited, real conceptual, intended, reasonable, and interpreted meanings of statutory and constitutional provisions—reveals the stark hubris of proposals that commit in advance to categorical selections or even categorical exclusions.