stitutional texts, which he treats as part of America’s “symbolic constitution”:
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Lawrence B. Solum
America’s symbolic constitution surely includes (but is not limited to)
the Declaration of Independence, Publius’ The Federalist, the Northwest
Ordinance, Lincoln’s Gettysburg Address, and Warren Court’s opinion in
Brown v.
Board, and Dr. King’s “I have a dream speech.”
These works set forth background principles that powerfully inform
American constitutional interpretation. Wherever the written Constitution
is fairly susceptible to different interpretations, interpreters would hesi-
tate, and do in fact hesitate, to embrace any reading that would violate the
clear letter and spirit of these other canonical texts. In short, these texts are
constitutional in the sense that they are
constitutive – adherence to these
helps constitute Americans as a distinct people among all the peoples on
earth.
68
There is much going on in this passage; examining Amar’s case for noncon-
stitutional texts as sources of constitutional law can help us to untangle the
various roles such texts might play.
Once again, our question is how nonconstitutional texts should be viewed
from an originalist perspective. We can begin with an easy case for public
meaning originalists. Some nonconstitutional texts are clearly part of the pub-
licly available context of constitutional communication. Such documents
include The Federalist and the Declaration of Independence. Because they
are part of the publicly available context, they can play a role in arguments
for contextual enrichment of the semantic content of the constitutional text.
Such enrichments might include the clarification of ambiguity, constitutional
implicatures, or arguments about implicit content.
Originalists should embrace another role for nonconstitutional texts. The
semantic component of original meaning is fixed by linguistic facts as they
stood at the time each provision of the Constitution was framed and ratified.
Linguistic facts are established or known on the basis of evidence. In the case
of very recent amendments, there may be audio recordings that could be the
source of evidence about relevant linguistic facts, but for the Constitution
of 1789 and most of the amendments, the relevant linguistic evidence will
be provided by nonconstitutional texts – including publicly available docu-
ments like The Federalist, but also including nonpublic documents, including
diaries, private letters, and even the nonpublic records of the Philadelphia
Convention.
There is a third role for nonconstitutional texts that some originalists may
embrace. Nonconstitutional texts might serve as evidence of what Philip
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Amar, Supra note 6, 247.