The Invisible Constitution in Comparative Perspective

Originalism and the Invisible Constitution 

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More generally, the legal content of constitutional doctrine is far richer 

(contains more information) than does the communicative content of the 

constitutional text. In theory, one might imagine a regime of “super strict con-

struction” – in which the content of constitutional doctrine is required to have 

a one-to-one correspondence with the communicative content of the consti-

tutional text. In practice, the enormous complexity of constitutional practice 

has produced a set of constitutional doctrines that far outruns the linguistic 

meaning of the constitutional text.

3.2.2.  The Core of Originalism

With the distinction between communicative content and legal content in 

place, we are now able to give a relatively precise statement of the core of orig-

inalist constitutional theory. We shall focus on the core, because originalism 

is itself multifarious and complex. Originalism has evolved both as a mode of 

judicial practice and as an academic theory. During that evolution, the origi-

nalist family of constitutional theories has included versions that emphasized 

the original intentions of the framers, the original understandings of the rat-

ifiers, and original public meaning.

17

 Despite these variations, the originalist 

family is united by agreement on two core principles, which I have named the 

“Fixation Thesis” and the “Constraint Principle.”

3.2.2.1.  The Fixation Thesis

The Fixation Thesis can be stated as follows:

The communicative content of the constitutional text (the linguistic mean-

ing in context) is fixed at the time each constitutional provision is framed 

and ratified.

The idea expressed by the Fixation Thesis is simple, but its full articulation 

has two distinct components. The first component is semantic:

The semantic content of constitutional meaning is fixed by linguistic prac-

tices at the time each constitutional provision is framed and ratified.

For example, the phrase “domestic violence” is used today to refer to spousal 

abuse, child abuse, and elder abuse within a family, but current usage is not 

17 

Lawrence B.  Solum, “What is Originalism? The Evolution of Contemporary Originalist 

 Theory” in Grant Huscroft and Bradley W. Miller (eds.), The Challenge of Originalism: Theo-

ries of Constitutional Interpretation (Cambridge: Cambridge University Press, 2011), 33.

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Lawrence B. Solum

an accurate guide to the semantic meaning of the same phrase when in Article 

IV of the United States Constitution; as used in the late eighteenth century, 

“domestic violence” referred to riots, rebellions, and other forms of harmful 

physical force within the territory of a political unit – in context, within the 

boundaries of a state.

18

 The first aspect of the Fixation Thesis is important, 

because meanings change over time; this is the well-known phenomenon of 

linguistic drift,

19

 also known as semantic shift.

20

The second aspect of the Fixation Thesis goes to contextual enrichment –  

the contribution of context to communicative content. The context of a par-

ticular utterance or writing is fixed in time. This contextual component can 

be stated as follows:

The contextually disambiguated and enriched communicative content of 

constitutional meaning for a given constitutional provision is fixed by the 

publicly available context of constitutional communication at the time that 

each provision of the text was framed and ratified.

Before giving examples, we need to note an important clarification. The con-

text is fixed at the time the text is framed and ratified, but it includes the entire 

publicly available context – and that context may itself be composed of events 

that predate ratification. The Constitution of 1789 was drafted in 1787 and 

obtained sufficient votes for ratification in 1788. Similarly, each amendment 

was proposed and ratified during a particular period.

21

 For this reason, the 

publicly available context of each provision of the Constitution is time-bound. 

The public context will include communications and events that are close in 

time to the drafting and promulgation of the text, but events in the distant past 

could be important parts of the context to the extent that framers, ratifiers, and 

18 

See Jack Balkin, Living Originalism (Cambridge: Belknap Press, 2011), 37; Lawrence Solum, 

“Semantic Originalism,” Illinois Public Law Research Paper No. 07–24 (November 22, 2008), 

3 (

http://papers.ssrn.com/abstract

=1120244

). For a clever and utterly implausible argument to 

the contrary, see Mark S. Stein, “The Domestic Violence Clause in ‘New Originalist’ Theory,”  

(2009) 37 Hastings Constitutional Law Quarterly 129, 133–5. Cf. Jay S. Bybee, “Insuring Do-

mestic Tranquility: Lopez, Federalization of Crime, and the Forgotten Role of the Domestic 

Violence Clause” (1997) 66 George Washington Law Review 1.

19 

Sol Steinmetz, Semantic Antics: How and Why Words Change Meaning (New York, NY: Ran-

dom House, 2008).

20 

John Newman, “Semantic Shift”, in Nick Riemer (ed.), The Routledge Handbook of Semantics  

(Abingdon: Routledge, 2016).

21 

The Twenty-Seventh Amendment to the Constitution is a special case: it was proposed by 

Congress on September 25, 1789, but ratification did not occur until May 7, 1992. See Certifi-

cation of Amendment to the Constitution of the United States Relating to Compensation of 

Members of Congress, 57 Fed. Reg. 21, 187–8 (May 19, 1992).

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