Lawrence B. Solum

Semantic originalism is a theory of constitutional meaning that aims to disentangle the semantic, legal, and normative strands of debates in constitutional theory about the role of original meaning in constitutional interpretation and construction. This theory affirms four theses: (1) the fixation thesis, (2) the clause meaning thesis, (3) the contribution thesis, and (4) the fidelity thesis. The fixation thesis claims that the semantic content of each constitutional provision is fixed at the time the provision is framed and ratified: subsequent changes in linguistic practice cannot change the semantic content of an utterance. The clause meaning thesis claims that the semantic content is given by the conventional semantic meaning (or original public meaning) of the text with four modifications. The first modification is provided by the publicly available context of constitutional utterance: words and phrases that might be ambiguous in isolation can become clear in light of those circumstances of framing and ratification that could be expected to known to interpreters of the Constitution across time. The second modification is provided by the idea of the division of linguistic labor: some constitutional provisions, such as the natural born citizen clause may be terms of art, the meaning of which are fixed by the usages of experts. The third modification is provided by the idea of constitutional implicature: the constitution may mean things it does not explicitly say. The fourth modification is provided by the idea of constitutional stipulations: the constitution brings into being new terms such as House of Representatives and the meaning of these terms is stipulated by the Constitution itself. The contribution thesis asserts that the semantic content of the Constitution contributes to the law: the most plausible version of the contribution thesis is modest, claiming that the semantic content of the Constitution provides rules of constitutional law, subject to various qualifications. Our constitutional practice provides strong evidence for the modest version of the contribution thesis. The fidelity thesis asserts that we have good reasons to affirm fidelity to constitutional law: virtuous citizens and officials are disposed to act in accord with the Constitution; right acting citizens and officials obey the constitution in normal circumstances; constitutional conformity produces good consequences. Our public political culture affirms the great value of the rule of law. We can summarize semantic originalism as a slogan: The original public meaning of the constitution is the law and for that reason it should be respected and obeyed. The slogan recapitulates each of the claims made by semantic originalism, but it is potentially misleading because it does not clearly distinguish between the semantic claims made by the fixation and clause meaning theses, the legal claim made by the contribution thesis, and the normative claim made by the fidelity thesis. Part I introduces the four theses. Part II is entitled An Opinionated History of Constitutional Originalism, and it provides the context for all that follows. Part III is entitled Semantic Originalism: A Theory of Constitutional Meaning, and it lays out the case for original public meaning as the best nonnormative theory of constitutional content. Part IV is entitled The Normative Implications of Semantic Originalism, and it articulates a variety of normative arguments for originalism. Part V is entitled Conclusion: Semantic Originalism and Living Constitutionalism, and it explores the broad implications of semantic originalism for living constitutionalism and the future of constitutional theory.

Justice is a natural virtue. Well-functioning humans are just, as are well-ordered human societies. Roughly, this means that in a well-ordered society, just humans internalize the laws and social norms (the nomoi)--they internalize lawfulness as a disposition that guides the way they relate to other humans. In societies that are mostly well-ordered, with isolated zones of substantial dysfunction, the nomoi are limited to those norms that are not clearly inconsistent with the function of law--to create the conditions for human flourishing. In a radically dysfunctional society, humans are thrown back on their own resources--doing the best they can in circumstances that may require great practical wisdom to avoid evil and achieve good. Justice is naturally good for humans--it is part and partial of human flourishing. All of these are natural ethical facts. "Natural Justice" develops these claims in four stages. Part I contextualizes the claim that justice is a natural virtue in relationship to David Hume's famous argument about deriving ought from is, G. E. Moore's open-question argument, and the so-called fact-value distinction. The upshot of the discussion in part I is the claim that there are no clearly decisive objections to existence of natural ethical facts. Part II traces the movement from neo-Aristotelian virtue ethics to virtue jurisprudence by articulating a theory of the judicial virtues. Among these are the virtues of practical wisdom and of justice. Practical wisdom or phronesis is best understood on the model of moral vision, which in the context of law is legal vision or situation sense. The virtue of justice is best understood as lawfulness. Just humans are law-abiding or nomimos--in that they internalize the widely shared and deeply held social norms of their social groups. This part concludes with the claim that a legally correct decision is the decision that characteristically would be rendered by a fully virtuous judge under the circumstances of the case. Part III argues that natural justice can be understood on the model of natural goodness as articulated in the work of Philippa Foot and Michael Thompson. The intuitive idea is that justice as lawfulness is naturally good for reason--using social creatures in human circumstances. This part also articulates and responds to a variety of objections. Part IV concludes by articulating the sense in which an aretaic theory of law that incorporates a natural virtue of justice as lawfulness can be viewed as an expression of the natural law tradition. The natural law idea that an unjust enactment is not a true law corresponds to two senses in which positive laws can fail to be nomoi (in the technical sense specified by virtue jurisprudence). First, a given enactment may contravene deeply held and widely shared social norms. Second, such enactments may be fundamentally inconsistent with the purpose of law--the promotion of human flourishing.

What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structural provisions of the Constitution of 1789. Such proposals are conventionally understood as placing constitutional options on the table as real options for constitutional change. Normative constitutional theory asks the question whether these options are desirable - whether political actors (citizens, legislators, executives, or judges) should take action to bring about their plans for constitutional reform or revolution. Frequently, normative constitutional theories are criticized on the ground that they are undesirable, unwise, on inconsistent with the best theories of political morality and legitimate legal authority, but sometimes one hears a very different form of criticism, expressed in locutions such as the following: That is unrealistic. That's not possible. That is pie in the sky. You are imagining castles in the air. Your suggestion is utopian. That isn't feasible. These objections invoke the idea of ephemeral constitutional possibility - constitutional options that are not real or actual possibilities. What are our constitutional possibilities? How should we think about the feasible choice set for constitutional change? What are the differences between ideal and nonideal theory? What role should the ideas of path dependency and second best play in constitutional theory? These inquiries cross the lines between normative, positive, and conceptual constitutional theory. At the conceptual level, we can ask what phrases like constitutional possibility, ideal theory, and the feasible choice set mean. At the level of positive constitutional theory, we can ask about the forces and institutions that condition constitutional possibility. At the level of normative constitutional theory, we can ask about the implications of constitutional possibility for political morality. Constitutional Possibilities proceeds as follows. Part I introduces the idea of ephemeral constitutional possibilities. Part II will cobble together a conceptual toolkit for thinking about possibility and necessity in constitutional theory: the tools include: (a) the distinction between ideal and nonideal theory, (b) the notion of a constitutional second best, and (c) an introduction to possible-worlds semantics. Part III will explore the implications of the resulting proto-theory of constitutional possibility in two stages: stage one will investigate the normative implications, whereas stage two will reconnoiter a set of standards for making modal claims in constitutional arguments. Part IV provides a case study in constitutional possibility by examining Sanford Levinson's proposal for a constitutional convention. Part V concludes with the problem of false constitutional necessity.