Joe Buffington (Albany Law School) has posted That was Then, “This” isn’t Now (a Critique of the Indexical Argument for Constitutional Originalism) on SSRN. Here is the abstract:
In Fixing the Fixation Thesis, my appraisal of the premise that the communicative content of legal language is fixed at the time of lawmaking, I stated that “nothing in the Constitution requires the Supreme Court to prioritize history over linguistics.” The point was that, contrary to what many jurists seem to believe, textualism (essentially, the notion that what the law means depends primarily on what the law says) doesn’t entail originalism (essentially, the notion that what the law says-and-means never changes), so the more conservative option for textualists might be to allow the Constitution to be re-interpreted according to what we know we know: its present meaning to us, those who are bound by it, now. But the statement, I admit, was too cavalier to be taken as true; in particular, it neglected attempts by originalist scholars, most notably Lawrence Solum and Christopher Green, to find a textual basis for originalism in the Constitution. This essay redresses that lapse by evaluating Solum & Green’s best textual evidence for Constitutional originalism: use of the indexical ‘this’ in the supremacy and oath/affirmation clauses of Article VI. I catalog three types of problems for their analysis of the Constitutional text – logical, legal, and linguistic – and conclude that their arguments on this issue are unpersuasive.
My article The Fixation Thesis does not employ the indexical argument. Nor does the passage quoted from Third Order Normative Questions and Federalism rest the case for fixation on the indexical “this”; that passage uses “this” to identify the object of the oath—the constitutional text, not judicial doctrine—in support of the Constraint Principle. The case for the Fixation Thesis rests on two mechanisms of communication. First, conventional semantic meaning is fixed by patterns of usage at the time a text is written. Because of linguistic drift, words and phrases acquire new meanings, but later drift does not change the meaning of an earlier text: “domestic Violence” in Article IV meant, roughly, violence internal to a state, not violence within a family. Second, the communicative content of the constitutional text depends on the public context of constitutional communication at the stage of ratification, and that context is fixed at the time the constitutional text is fixed. The ratifying public had access to the Revolution and the experience under the Articles of Confederation, but not to the Civil War or the Great Depression.
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum