is just the activity that ascertains the legal content and effect of a text, it follows
originalism and an unwritten or invisible constitution. Up to this point, we
Here is one possible exception: there may be some cases in which contextual enrichment
contributed by a term is vague, but the communicative content is not vague because the pub-
licly available context adds precisification – reducing the zone of underdetermination.
Originalism and the Invisible Constitution
79
constitution” are unfortunate for our purposes, we can ask this question more
clearly: can originalists embrace extra-textual sources of the legal content of
constitutional doctrine and practice? We can address this question in two steps.
First, we need to say something about extra-textual sources – what are they?
Second, we need to investigate the role that extra-textual sources can play
in constitutional interpretation and construction. When we have taken those
two steps, we will be able to give an abstract answer to our question about orig-
inalism and extra-textual sources of constitutional doctrine and practice. After
we state the abstract answer, we will turn to a more particularized inquiry.
3.5.1. Typology: Sources of Constitutional Norms
What are the sources of constitutional norms? That’s a big question. To make it
more manageable, we can begin by distinguishing between two kinds of sources,
which we can call “textual sources” and “extra-textual sources.” We might think
of the textual sources as divided into two categories. The first category consists of
contiguous strings of constitutional text that are marked off as discrete units
of constitutional meaning; we can call these text strings “clauses.” The second
category of textual sources concerns the properties of the text that emerge from
the ways in which individual clauses relate to one another. We can call these
relationships between clauses “structural features of the constitutional text” or
“structure” for short. Thus, textual sources include clauses and structure.
The second kind of source comes from outside the constitutional text –
extra-textual sources. At this stage of our investigation, we want to suspend
judgment about the legitimacy of these extra-textual sources – we are merely
listing some of the possible candidates for the role of plausible sources of
constitutional norms. Again, we can categorize the possibilities. One cate-
gory consists of foundational documents other than the Constitution of the
United States; examples include the Declaration of Independence, the Treaty
of Paris, and the Articles of Confederation. Another category consists of doc-
uments and records that relate to the framing and ratification of the original
Constitution and its amendments; examples include The Federalist Papers,
Madison’s notes on the Philadelphia Convention, and the records of the rat-
ifying conventions. A third category of possible sources consists of moral and
political values.
34
The fourth category is social norms and values; the content
34
This third category – moral and political values – raises certain worries about the use of the
word “source,” because some legal positivists may believe that moral facts cannot determine
legal content. Let us set aside positivist worries about use of the word “source” to describe the
role that political morality could play in determining the content of constitutional norms; if
you wish, you can substitute “constitutional actors’ beliefs about moral and political values.”
The third category is described in terms of the values themselves (or the officials’ beliefs about
them).
80
Lawrence B. Solum
of these norms may correspond to true propositions of political morality, but
this need not be the case. The fourth category refers to what is sometimes
called “ethos” – the positive morality of a particular political culture. The
fifth category is institutional practice. One particularly salient member of this
category consists of judicial decisions and opinions that establish authoritative
precedents. But the practices of nonjudicial actors could also serve as a source
of constitutional norms; sometimes the term “historical practice” is used to
describe a subset of this category. Finally, the logical space of extra-textual
sources includes the idea that constitutional law might simply be “made up”
by some official; judges come to mind.
Our typology is summarized in Table
3.1
.
Table 3.1. Sources of the Legal Content of Constitutional Doctrine
in the United States
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