On his Legal Theory blog, law professor Lawrence Solum has a characteristically deep and lucid and rigorous post on originalism. (It’s also a very long post.) Among other things, Solum distinguishes “between semantic originalism—a family of theories about the natural meaning of the constitutional text—and normative originalism—a family of theories about how constitutional practice (both in the courts and by legislatures, executives, and citizens) ought to be conducted.”
Solum outlines his case for the “truth of semantic originalism”—and specifically of textualist semantic originalism. Semantic originalism, Solum explains, is “a theory about what the constitution means” and in that respect is “simply a subdomain of broader semantic theories.” Textualist semantic originalism “is the view that the natural meaning of the constitutional text is its conventional semantic meaning—the meaning that the words and phrases would have conveyed to the public at the time the relevant portion of constitutional text was drafted, proposed, and adopted.” (I understand textualist semantic originalism to be the same as, or at least the core part of, the original-meaning species of originalism that Justice Scalia advocates. As I understand it, Solum adopts his own terminology in order to emphasize his distinction between semantic and normative originalism.)
Solum next explains that the “truth of [textualist] semantic originalism, by itself, has no normative implications” (I think his phrasing is meant to be equivalent to “no necessary, i.e., absolutely compelled, normative implications”):
Even if the semantic content of the constitution is the original public meaning, it could be the case that constitutional practice should deviate from that meaning. For example, one might argue that precedent should trump the original public meaning. Or one might argue that the difficulty of constitutional amendment so undermines the democratic legitimacy of the Constitution that the political branches are justified in “amending constructions” that give the text new and different semantic content. Or one might believe that the constitution is so undesirable or unjust that judges are justified in ignoring the semantic content of the constitution and deciding cases on the basis of their own beliefs about what the Constitution should have provided.
But, he continues: “In a wide variety of legal contexts, the notion that officials are obligated by the semantic content of legal texts is simply not controversial. Quite the contrary, our usual assumption is that in a reasonably just society, the semantic content of valid legal texts creates obligations for judges, other officials, and citizens.”
Solum thinks that many originalists have erred in “seem[ing] to believe that by producing arguments for semantic originalism, they have provided a prima facie normative case.” I confess that I’m puzzled by his proposition here, at least by his use of “prima facie”. I would agree that his explanation shows that the truth of semantic originalism does not irrefutably prove the normativeness of originalism. (By analogy, for example, judges can use semantic originalism to discern the correct meaning of a clause of a contract but then decline to enforce the clause on the grounds of unconscionability.) But his own discussion of “our usual assumption … in a reasonably just society” would seem to make the prima facie case for the normativeness of originalism. In other words, it would seem to place the burden of proof on those opposing originalism to establish why textualist semantic originalism should not apply.
Solum has outlined a powerful case that textualist semantic originalism is the best method for discerning the actual meaning of the Constitution. I look forward to learning more from Solum on why he “only partially embraces normative originalism”—why, that is, and under what circumstances he believes that constitutional practice should, for normative reasons, deviate from the actual meaning of the Constitution.