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Lawrence B. Solum
3.2. Originalist Constitutional Theory in the United States
Our topic is the relationship between originalism and extra-textual sources
of constitutional law. We can begin by asking the general question, “What
is originalism?” And in particular, “How has originalist constitutional theory
developed in the United States?”
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In brief, the answer to the first question is
that originalism is a family of constitutional theories that agree on the Fixation
Thesis and the Constraint Principle, with one member of the family, Public
Meaning Originalism, playing a central role in contemporary debates.
3.2.1. Communicative Content and Legal Content
Let me begin with a very general distinction in legal theory – the distinction
between “legal content” and “communicative content.”
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As applied to a consti-
tution, this distinction marks the difference between the legal content of consti-
tutional doctrine and norms, on the one hand, and the communicative content
(linguistic meaning in context) of the constitutional text, on the other hand.
This distinction is fundamental to our investigation of the relationship between
originalism and extra-textual sources of constitutional norms, and we need to
be clear and precise about these foundational ideas before we proceed further.
What is “communicative content?” The communicative content of a
legal text is its meaning. But the word “meaning” standing alone is ambig-
uous. When we ask the question, “What does this clause of the Constitution
mean?,” we might be asking about the linguistic meaning of the words – but
we also might be asking about the effect that provision will have, or about
the content of the doctrines of constitutional law that implement the clause.
“Communicative content” refers to the linguistic meaning of the text in the
context in which it was framed and ratified. This notion of communicative
content is good enough for many purposes, but we can be a bit more precise.
It is important to distinguish communicative content with the related but dis-
tinct idea of legal content. The communicative content of the constitutional text
can be more or less identical to the legal content. That is, the legal content of con-
stitutional doctrine (whether explicit in judicial decisions or implicit in the prac-
tice of officials) may simply translate the communicative content of the text into
legal effect. But this is not necessarily the case. The gap between communicative
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Much of the theoretical apparatus developed by originalists in the American context was an-
ticipated by the work of Professor Jeffrey Goldsworthy in Australia. See Jeffrey Goldsworthy,
“Originalism in Constitutional Interpretation” (1997) 25 Federal Law Review 1.
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See Lawrence B. Solum, “Communicative Content and Legal Content” (2013) 89 Notre
Dame Law Review 480.
Originalism and the Invisible Constitution
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content and legal content can be seen in several ways. Most obviously, some legal
texts have no legal content at all: the Constitution of the Confederate States of
America has communicative content, but there are no associated doctrines of con-
stitutional law in the actual world. Other legal texts have legal content that contra-
dicts the communicative content: for example, I believe that the legal effect given
to the Privileges or Immunities Clause of the Fourteenth Amendment is incon-
sistent with the legal content of the constitutional doctrines promulgated by the
Supreme Court as an “interpretation” of that Clause. Finally, many constitutional
provisions have legal content that is richer than the communicative content of the
text itself: for example, free speech doctrine is a complex body of law containing
dozens or hundreds of legal norms that cannot be found in the communicative
content of the phrase “freedom of speech.”
How does a legal text (e.g., the United States Constitution) communicate?
One part of the answer to that question focuses on the semantic meaning of
the words and phrases that make up the text. If we want to know the meaning
of the Commerce Clause, we need to know the meaning of the words: for
example, the Commerce Clause includes the words “regulate,” “commerce,”
“among,” “several,” and “states.” These words have conventional semantic
meanings – meanings that are determined by patterns of usage that produce
shared linguistic conventions.
But the meaning of a clause is not determined by the meaning of the words
alone. There are further conventions – regularities in usage that determine the
way words combine to produce meanings. We sometimes call these regulari-
ties “rules” of grammar and syntax, but the term “rule” is somewhat misleading
because it suggests that authors and speakers must conform to a set of prescrip-
tive rules. Failure to conform would then constitute a violation – what we some-
times call a “grammatical error.” Syntax and grammar enable meaning because
of regularities in usage; communication can take advantage of the regularities
in various ways (not just by strict adherence to a “rule”), and the regularities are
not necessarily fully captured by the idea of a rule. There may be clusters and
variations that are comprehended by competent speakers of the language but
would violate the rules formulated by prescriptive grammarians.
The principle of compositionality expresses the idea that part of the mean-
ing of an utterance (e.g., a clause in the Constitution) is the product of the
conventional semantic meaning of the words, and the regularities of syntax
and grammar that combine them.
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The contribution made by conventional
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Richard Grandy, “Understanding and the Principle of Compositionality” (1990) 4 Philosoph-
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