The Invisible Constitution in Comparative Perspective

Originalism and the Invisible Constitution 

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citizens shared the belief they were relevant to the meaning of some constitu-

tional provision.

The public context of constitutional communication can include informa-

tion that occurs prior to the drafting and promulgation of a constitutional 

provision, but future events cannot be part of the publicly available context of 

constitutional communication – not without time travel! Thus, the American 

Civil War is not part of the public context of constitutional communication 

for the original Constitution and the first twelve amendments, but the text 

of those provisions and the Civil War itself were part of the public context of 

constitutional communication for the Reconstruction Amendments.

In sum, the Fixation Thesis expresses the idea that communicative content 

is fixed in time. The thesis results from two facts about meaning: (1) semantic 

content is fixed by linguistic practice at the time of utterance; and (2) the con-

text of an utterance is time-bound.

3.2.2.2.  The Constraint Principle

The Fixation Thesis is the first element of the core of contemporary orig-

inalism. The second element is the Constraint Principle. The idea of the 

Constraint Principle is simple and highly intuitive. The following version of 

the principle is simple and unqualified; a more precise version will be intro-

duced later in this text.

The communicative content of the constitutional text should constrain the 

content of constitutional doctrine.

Although it is theoretically possible for an originalist to view originalism as a 

purely linguistic theory, in practice almost all originalists are concerned with 

the relationship between original meaning and what constitutional actors do, 

including the content of constitutional doctrine. At a minimum, originalists 

believe that the original public meaning of the text should play some role in 

determining how courts should decide cases, and how other officials (e.g., the 

President and Congress) should act. The role that communicative content 

plays in determining legal content and effect can be called its “contribution.” 

Many living constitutionalists would agree that the original meaning of the 

text (if ascertainable) should play some role in determining the content of 

contemporary constitutional doctrine – although they may believe that orig-

inal meaning can be trumped or outweighed by other factors. Living consti-

tutionalists of this sort could be characterized as affirming a very weak form 

of originalism, but that way of dividing originalists from nonoriginalists risks 

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Lawrence B. Solum

conceptual confusion by placing many opponents of “originalism” (as they 

use the word) in the originalist camp.

Theorists who describe themselves as adherents of “originalism” character-

istically believe that the contribution of the text to doctrine should be more 

robust than mere consideration as a factor or modality in a pluralist practice. 

The Constraint Principle is meant to express this core belief in an abstract 

way that leaves room for differences among the different members of the orig-

inalist family of theories. The general and abstract statement of the Constraint 

Principle introduced previously can be made more precise by laying out a 

more precise version, which I shall call “Constraint as Consistency.”

3.2.2.3.  Constraint as Consistency

Constraint as Consistency can be formulated as the conjunction of three 

requirements and three qualifications as follows: