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posted Pedantic Originalism (unpublished monograph) on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.