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Lawrence B. Solum
semantic meanings, syntax, and grammar to the full communicative content
of an utterance can be called its “semantic content.” Lawyers sometimes call
the semantic content of a statute its “literal meaning.” In theoretical linguis-
tics and the philosophy of language, the terms “syntax” and “semantics” are
used to refer to the investigation of this component of meaning.
But the semantic content of an utterance does not do all the work. The
meaning of a sentence is not always its “literal meaning.” Written sentences
occur in contexts, and the meaning of a sentence will depend on that context.
Consider the following sentence:
“This sentence (in this chapter) provides a trivial example of the contribu-
tion made by context to meaning.”
The sentence in quotation marks uses the word “this” in two places (“this
sentence” and “this chapter”). The word “this” is an indexical. Indexicals have
conventional semantic meanings. Competent speakers of English understand
words like “this,” “here,” “now,” and so forth. But you don’t know what “this”
is, or where “here” is, or when “now” is, unless you have information about
the context in which these words were uttered. Thus, the first use of “this”
modifies the word “sentence” and points to the sentence in which it occurs.
And the second use of “this” refers to this “chapter” – the one you are reading
now. Used in a different context, the word “this” would refer to other things.
Or take the word “Senate” as that word is used in the United States
Constitution. Acontextually, “senate” might mean “an assembly of citizens,”
or “the building in which a legislative assembly meets,” or “the deliberative
body of a college or university faculty.” But in context, the word “Senate”
refers to a particular legislative body created by the Constitution itself – the
Senate of the United States that is part of the United States Congress created
by the Constitution of 1789.
These examples of the contribution that context makes to meaning
may seem trivial. There is nothing complex or counterintuitive about the
examples – they are easy cases! But the intuitively obvious nature of these
examples is what makes them so powerful. They show beyond doubt that
the communicative content of an utterance is not necessarily identical to
its semantic content.
When it comes to the contribution that context makes to meaning, the
case of legal texts is complex. For example, the clauses of the United States
Constitution are embedded in multiple layers of context. Take the Constitution
of 1789 (as it existed before amendment). Each clause is embedded in a sur-
rounding Article, and the Articles are embedded in the whole Constitution,
which has a Preamble. The Constitution was framed and then ratified in a
Originalism and the Invisible Constitution
67
historical context. This historical context includes surrounding texts, includ-
ing the predecessor
Articles of Confederation, but it also includes actions and
events – the Revolutionary War, the failure of the Continental Congress to
raise revenues, and so forth.
Some portion of the total context in which the Constitution of 1789 was
framed and ratified is context that was shared. By “shared,” I mean that it
was generally available to framers, ratifiers, and citizens during the period of
drafting and ratification. Call this common source of contextual meaning “the
publicly available context of constitutional communication” (or “the publicly
available context” for short). This publicly available context combines with
the semantic meaning of the words and phrases to produce the “communica-
tive content” of the constitutional text.
Philosophy of language and theoretical linguistics use the word “pragmat-
ics” to designate the study of the effect of context on communicative content.
The contribution that context makes to communicative content can be called
“pragmatic enrichment,” but for our purposes we can use the phrase “contex-
tual enrichment” to refer to this idea, avoiding possible confusion with other
meanings of the word “pragmatic” in legal discourse.
We can illustrate the idea of communicative content with an example.
Take the free speech provision of the First Amendment to the United
States Constitution. The semantic content (or “literal meaning”) is sparse:
“Congress shall make no law . . .abridging the freedom of speech.” Pace Justice
Black, the literal meaning of the clause is both vague and ambiguous.
15
What
is the “freedom of speech?” What constitutes an “abridging” of the freedom
of speech? Read acontextually, these phrases could mean many things. The
phrase “freedom of speech” in the United States Constitution might have a
different meaning than the same phrase used in a campus speech code or in
the Constitution of South Africa.
Context enriches this vague and ambiguous content of the Free Speech
Clause in various ways. The clause itself contrasts speech with press, assem-
bly, and petition. The First Amendment is structurally related to the orig-
inal Constitution, which includes a scheme of limited and enumerated
15
Jeffrey D. Hockett,
New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix
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