This Essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a number of misconceptions about the methods used by originalists. Among these is the notion that originalists rely on dictionary definitions to determine the communicative content of the constitutional text. Although dictionaries may play some role, the better approach emphasizes primary evidence such as that provided by corpus linguistics. Another misconception is that originalists do not consider context; to the contrary, the investigation of context plays a central role in originalist methodology.

Part I of this Essay articulates a theoretical framework that draws on ideas from contemporary legal theory and linguistics. Part II investigates methods for determining the constitutional text’s semantic content. Part III turns to methods for investigating the role of context in disambiguating and enriching what would otherwise be sparse semantic meaning. Part IV describes an originalist approach to constitutional construction. The Essay concludes with a short reflection on the future of originalist methodology.

Introduction

“Originalism” is a family of contemporary theories of constitutional interpretation and construction that share two core ideas. First, the communicative content of the constitutional text is fixed at the time each provision is framed and ratified—the Fixation Thesis.1 Second, constitutional practice should be constrained by that communicative content of the text, which we can call the “original public meaning”—the Constraint Principle.2 Other matters (for example, original intent versus original public meaning) are debated by contemporary originalists.

The core commitments to fixation and constraint imply two tasks for originalist methodology: (1) providing a set of tools and practices that can reliably discover the fixed communicative content of the constitutional text and (2) guiding constitutional practice. In other words, originalist methods must enable us to determine what the original meaning is and which actions are consistent with that meaning.

The originalist methodology sketched here uses ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. For the sake of simplicity, most of the following discussion focuses on one portion of the constitutional text, the unamended text that was drafted in 1787. Part I of this Essay articulates a theoretical framework that draws on ideas from contemporary legal theory and linguistics. Part II investigates methods for determining the constitutional text’s semantic content. Part III turns to methods for investigating the role of context in disambiguating and enriching what would otherwise be sparse semantic meaning. Part IV describes the application of these methods to constitutional construction. The Essay concludes with a short reflection on the future of originalist methodology.

  • 1. See generally Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L Rev 1 (2015).
  • 2. See generally Lawrence B. Solum, The Constraint Principle: Original Meaning and Constitutional Practice (unpublished manuscript, 2017) (on file with author).