The Invisible Constitution in Comparative Perspective

Lawrence B. Solum

first need to identify and then deflate a misleading picture of the relationship 

between the meaning of individual clauses and the whole Constitution. It 

might be thought that there are only two alternative positions on the relation-

ship of the whole to the parts when it comes to constitutional meaning. The 

first alternative might be called “clause bound interpretivism,” which we can 

define as follows:

The meaning of each clause must be determined from within the four cor-

ners of the clause.

We can now see that clause-bound interpretivism is inconsistent with the pub-

lic meaning thesis: the meaning of the Constitution for the public (at the time 

of framing and ratification) is a function of both semantic content and context. 

So, public-meaning originalists should reject clause-bound interpretivism.

This brings us to a second theory, which might be called “organic unity 

holism”:

Meaning only attaches to the whole constitution as an organic unity; 

therefore, individual clauses are not meaningful units of constitutional 

communication.

This picture, which suggests we must choose between clause-bound interpre-

tivism and organic-unity holism, might be called the “all-or-nothing picture:” 

either the Constitution’s meaning is all (the whole Constitution all at once) or 

it is nothing (no meaning attaches to the individual clauses by virtue of their 

relationship to the whole document).

The all-or-nothing picture creates a false dilemma. There is an alterna-

tive picture of the relationship between the meaning of individual clauses 

and the whole Constitution; that picture can be expressed via two ideas: (1) 

the familiar device of the hermeneutic circle and (2) the related notion of 

intra-textualism.

The idea of a hermeneutic circle figured prominently in Protestant theo-

logical hermeneutics as a method for understanding the relationship of the 

meaning of individual biblical passages to the whole text: the meaning of each 

individual passage of scripture is gleaned in light of the meaning of the Bible 

as a whole, and the meaning of the whole is gleaned in light of the meaning 

of all the individual passages.

55

 As Hans-Georg Gadamer puts it, “[f]or it is the 

whole of scripture that guides the understanding of the individual passage: 

55 

See  Lawrence B.  Solum, “Originalism as Transformative Politics” (1989)  63  Tulane Law 

 Review 1599, 1608.

---

 

Originalism and the Invisible Constitution 

97

and again this whole can be reached only through the cumulative under-

standing of individual passages.”

56

 Justice Joseph Story’s first recommendation 

for constitutional construction is based on the same notion: “[i]n construing 

the constitution of the United States, we are, in the first instance, to consider, 

what are its nature and objects, its scope and design, as apparent from the 

structure of the instrument, viewed as a whole, and also viewed in its compo-

nent parts.”

57

Intra-textualism as articulated by Amar expresses a closely related idea with 

a different metaphor:

58

Textual argument as typically practiced today is blinkered (“clause-bound” 

in Ely’s terminology), focusing intently on the words of a given constitutional 

provision in splendid isolation. By contrast, intra-textualism always focuses 

on at least two clauses and highlights the link between them. Clause-bound 

textualism paradigmatically stresses what is explicit in the Constitution’s text: 

“See here, it says X!” By contrast, intra-textualism paradigmatically stresses 

what is only implicit in the Constitution’s text: “See here, these clauses fit 

together!” But there is no clause in the Constitution that says, explicitly 

and in so many words, that the three Vesting Clauses should be construed 

together, or that the Article III grant of federal question jurisdiction should 

be read alongside the Article VI Supremacy Clause. Intra-textualism simply 

reads the Constitution as if these implicit linking clauses existed. Clause-

bound textualism reads the words of the Constitution in order, tracking 

the sequence of clauses as they appear in the document itself. By contrast, 

intra-textualism often reads the words of the Constitution in a dramatically 

different order, placing textually nonadjoining clauses side by side for careful 

analysis. In effect, intra-textualists read a two-dimensional parchment in a 

three-dimensional way, carefully folding the parchment to bring scattered 

clauses alongside each other.

59

Both the idea of the hermeneutic circle and the idea of intra-textualism under-

mine the all-or-nothing picture. Our choices are not limited to clause-bound 

interpretivism and organic-unity holism. The excluded middle is to read indi-

vidual clauses in the context of the whole Constitution. The clause–meaning 

thesis squarely occupies the excluded middle: it insists that clause meaning is 

bound by the publicly available context, and the whole of the constitutional 

text is indisputably part of that! Once the all-or-nothing picture is out of the 

56 

Hans-Georg Gadamer, Truth and Method (London: Bloomsbury Academic, 1975), 264.

57 

Joseph Story, Commentaries on the Constitution of the United States, abridged edn (Boston: 

Hilliard, Gray & Co., 1833), 136.

58 

See Akhil Reed Amar, “Intratextualism” (1998) 112 Harvard Law Review 747.

59 

Ibid.

, 788.

---

98