constitutional text. In theory, one might imagine a regime of “super strict con-
struction” – in which the content of constitutional doctrine is required to have
place, we are now able to give a relatively precise statement of the core of orig-
inalist constitutional theory. We shall focus on the core, because originalism
is itself multifarious and complex. Originalism has evolved both as a mode of
judicial practice and as an academic theory. During that evolution, the origi-
has two distinct components. The first component is semantic:
70
Lawrence B. Solum
an accurate guide to the semantic meaning of the same phrase when in Article
IV of the United States Constitution; as used in the late eighteenth century,
“domestic violence” referred to riots, rebellions, and other forms of harmful
physical force within the territory of a political unit – in context, within the
boundaries of a state.
18
The first aspect of the Fixation Thesis is important,
because meanings change over time; this is the well-known phenomenon of
linguistic drift,
19
also known as semantic shift.
20
The second aspect of the Fixation Thesis goes to contextual enrichment –
the contribution of context to communicative content. The context of a par-
ticular utterance or writing is fixed in time. This contextual component can
be stated as follows:
The contextually disambiguated and enriched communicative content of
constitutional meaning for a given constitutional provision is fixed by the
publicly available context of constitutional communication at the time that
each provision of the text was framed and ratified.
Before giving examples, we need to note an important clarification. The con-
text is fixed at the time the text is framed and ratified, but it includes the entire
publicly available context – and that context may itself be composed of events
that predate ratification. The Constitution of 1789 was drafted in 1787 and
obtained sufficient votes for ratification in 1788. Similarly, each amendment
was proposed and ratified during a particular period.
21
For this reason, the
publicly available context of each provision of the Constitution is time-bound.
The public context will include communications and events that are close in
time to the drafting and promulgation of the text, but events in the distant past
could be important parts of the context to the extent that framers, ratifiers, and
18
See Jack Balkin, Living Originalism (Cambridge: Belknap Press, 2011), 37; Lawrence Solum,
“Semantic Originalism,”
Illinois Public Law Research Paper No. 07–24 (November 22, 2008),
3 (
http://papers.ssrn.com/abstract
=1120244
). For a clever and utterly implausible argument to
the contrary, see Mark S. Stein, “The Domestic Violence Clause in ‘New Originalist’ Theory,”
(2009) 37 Hastings Constitutional Law Quarterly 129, 133–5. Cf. Jay S. Bybee, “Insuring Do-
mestic Tranquility: Lopez, Federalization of Crime, and the Forgotten Role of the Domestic
Violence Clause” (1997) 66 George Washington Law Review 1.
19
Sol Steinmetz,
Semantic Antics: How and Why Words Change Meaning (New York, NY: Ran-
dom House, 2008).
20
John Newman, “Semantic Shift”, in Nick Riemer (ed.), The Routledge Handbook of Semantics
(Abingdon: Routledge, 2016).
21
The Twenty-Seventh Amendment to the Constitution is a special case: it was proposed by
Congress on September 25, 1789, but ratification did not occur until May 7, 1992. See Certifi-
cation of Amendment to the Constitution of the United States Relating to Compensation of
Members of Congress, 57 Fed. Reg. 21, 187–8 (May 19, 1992).