Over at Books Do Furnish A Room, X. Trapnel has a very nice post entitled Originalism on the cheap. Here is a taste:
Solum says that ‘laws are different [than one-to-one utterances], and are better understood on the Gricean model of "sentence meaning," analogous to what is called original public meaning in constitutional theory.’ Well and good, but I just don’t see how the analogy gets you original, rather than current, public meaning. Grice shows us that we needn’t view the Constitution as the direct utterance of a certain number of people, the meaning of which must be constituted by actual intentions; we can instead see it as a generic text whose meaning is established by how a certain audience would standardly react to it–but why does the audience need to be the original one?
This is a great question, precisely because it reveals a significant and important qualifaction regarding "sentence meaning" and "clause meaning" (my term for the appropriate Gricean construction in the context of a constitutional text).
Let’s start with an ordinary sentence, uttered at time T2 under conditions where the utterer and the audience lack adequate reciprocal information about the utterer’s intentions. In other words, at T2, readers limn a writing, W, but lack particularized information about the author’s purposes or intentions, other than the information that W was uttered at T2–suppose that W is dated and the date is verifiable. Suppose that W contains a phrase, P, that has a conventional meaning that has varied over time. At T1, P had conventional meaning, M1, but at T2, P has conventional meaning M2. Given these circumstances, the meaning of P in W is M2. Suppose further that a century later at T3, P acquires a third conventional meaning, M3. As interpreted at T3 in light of the internal dating at T2, the relevant sentence meaning of P in W is still M2. In other words, conventional meaning can change over time, and the relevant conventional meaning for a giving utterance is the conventional meaning at the time of utterance. If we have an utterance that uses a term of phrase, the conventional meaning of which varies over time, and we lack information about the time of utterance, then the conventional meaning is ambiguous.
Suppose, for example, that the writing in question is a anonymous treasure map, verifiably dated 1689, and that the map contains a sentence, "Turn right at the giant agolanad," and that the conventional meaning of "agolanad" in 1689 was "Oak tree", but by 1862, the conventional meaning was "Elm tree." If we want to know what the map meant, we will use the conventional meaning that prevailed at the time, and we certainly won’t use the meaning that came into being more than a century later. On the other hand, if we couldn’t determine when the map was created, the meaning would be ambiguous, and we would have good reason to look for the location of either an Oak or an Elm.
Now consider the constitution. For any given clause in the Constitution, we know when the clause was framed and ratified–the utterance conditions for a clause in the Constitution. So if we want to know what the Constitution means, we look to the conventional meaning at the time of framing and ratification. That meaning is what original-meaning originalists or "new originalists" call the "original public meaning."
One more thing. My full theory of "clause meaning" has not yet been fully specified in published work. "Clause meaning" is not identical with Gricean sentence meaning, although the two are closely related. That is for reasons that many readers will have already seen based on the discussion so far. When we limn clause meaning, we know (1) that the clause is part of the United States Constitution, (2) that it was part of a particular type of legal document, (3) that it was uttered in the context of the whole document, and so forth–the fully specified theory lists several such conditions. Moreover, "clause meaning" does not exhaust constitutional meaning, because of "constitutional implicature"–the equivalent of Gricean "conversational implicature." And finally, settling constitutional meaning does not settle one’s theory of constitutional interpretation and application–since there might be normative reasons for constructing rules of constitutional law that deliberately depart from the meaning of the Constitution. Among such reasons, might be reasons that favored a strong doctrine of stare decisis.
Read X. Trapnel’s fine post!