Living Constitutionalism and the Idea of Core Meaning

Stephen Griffin

As usual, Larry Solum asks good questions (when he's not trying to trip us up with April Fool jokes -- I was really looking forward to that Tribe article!). He wonders whether changing contexts can alter the core meaning of constitutional clauses. In response, let me make some quick points about altering the meaning of clauses that may or may not be vague. Let's remember that Madison and Jefferson thought Hamilton was changing the core meaning of the enumerated powers doctrine and the necessary and proper clause. There were any number of battles in the 1790s that showed deep disagreements over matters fundamental and textual. And how does Marshall try to settle some of same issues in McCulloch? Not by adverting so much to semantic meaning but by making structural historical arguments and invoking the earlier debates over the national bank.

What is going on here? Why can't the framers get their own story straight? It is useful to keep in mind that the Constitution was offered as a take it or leave it proposition. This is the "no amendments allowed means no certain originalist interpretation" argument best put forward by Jack Rakove. The ratification conventions are great, but without the textual clarification engendered by voting on serial amendments, there is no certain "liquidation" of meaning. That is one reason efforts to decide contemporary cases by looking at evidence from the ratification process tend to end up snipping quotes here and there.

Another essential point to bear in mind is best captured by Walter Murphy's query: What is the Constitution? If you keep talking about it as an assemblage of clauses, the project of determining semantic meaning looks plausible. Once we take a step back and realize that principles, concepts and institutions outside the literal text are often just as important, this approach looks less realistic. Functional operators (I made this term up) such as federalism and separation of powers are conceded to be proper bases for decision even though not in the literal text. And how is their meaning determined? Experience shows the way.

But what about clauses that are clear? Could subsequent events divert us from true semantic meaning?

Some would look at the Court's 11th amendment doctrine and say yes. And I suppose similar arguments could be made about the fourteenth amendment's privileges or immunities clause. Usually the culprit is a functional operator -- federalism arguably in both cases. Like many a textualist, I would often prefer the "document" over the "doctrine." But in this post I'll take the descriptive side and say: of course, our constitutional tradition shows that core meaning some consider clear can be overriden by subsequent events including precedent.

What about Jack's examples like "domestic violence?" He notes we seem to adhere to eighteenth century meaning, not contemporary meaning. But this is only because no intervening events have turned such clauses into the swiss cheese that the 11th amendment has become. My point about Heller concerns the strange discourse that results when we pretend that nothing has changed since the eighteenth century. I'd extend the same logic to any of the "con crim pro" amendments that are more specific than the second amendment. But again, in line with what I argue in "Rebooting Orginalism," the task is not to interpret such phrases in light of "contemporary meaning" but rather to apply the entirety of our constitutional tradition in the search for a meaning that will most persuasively resolve a contemporary case.



Posted 10:37 PM by Stephen Griffin [link]