Sunday, April 01, 2018

Solum on Pedantic Originalism

David Pozen

In the spirit of the day, and in homage to the master, I thought I would share a new paper that may be of interest.  Deepening his foundational work and refining some of its core claims, Lawrence B. Solum (Georgetown University Law Center) has posted Pedantic Originalism (unpublished monograph) on SSRN.  Here is the abstract:
Pedantic originalism is a theory of constitutional meaning that aims, through meticulous philosophical analysis, to (1) clarify the role of original meaning in constitutional interpretation, (2) ground originalist inquiry in the pragmatics of natural language, and (3) reorient constitutional debate away from contentious normative questions and toward more congenial topics in legal semantics.

After a brief introduction, Part I (pp. 56-93) describes the fixation thesis, which asserts that the communicative content of a constitutional provision is fixed at the time the provision is framed and ratified.  Where the Constitution uses “he,” it should accordingly be interpreted as “he or she” except when the framers and ratifiers really did have males in mind; in such instances, the principle of tough luck controls.

Part II (pp. 94-169) describes the contribution thesis, which asserts that the linguistic meaning of the constitutional text makes a contribution to constitutional doctrine.  It will often be difficult to say exactly what sort of contribution, but certainly an influence greater than zero can be assumed. 

Part III (pp. 170-257) describes the fidelity thesis, which asserts that those who deny the contribution thesis reveal themselves to be unfaithful citizens.  Whether or not this conclusion extends to those who deny even a generalized version of the fixation thesis depends on whether such persons are deemed to have the capacity for rational thought.

Part IV (pp. 258-305) tells the story of originalism’s theoretical development.  Consistent with the demands of interpretive charity and narrative economy, it stipulates that originalism emerged autochthonously from the search for truth within the legal academy.

Part V (pp. 306-393) takes up the issue of liability for “accidents” that occur in the construction zone, where the linguistic meaning of the constitutional text underdetermines results.  Responding to Jack Balkin’s work on abortion and original understandings, it introduces the concept of an originalism bullshit detector to police this zone, as well as the concept of excommunication from San Diego as the key sanctioning mechanism.

Finally, Part VI (pp. 394-486) responds to objections that originalism is anathema to democratic self-rule and an elegy to patriarchy and white supremacy.  The Gricean theory of implicature, it is explained, renders such objections beside the point.

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