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. (shrink)

It is often said that the Constitution does not interpret itself, that we are in need of a theory of interpretation for constitutions. This need has led to a flourishing literature on constitutional interpretation. Statutes, also, stand in need of a theory of interpretation, and that obvious need has led to a robust literature on that subject. What is said too infrequently is that Supreme Court rulings do not interpret themselves, that we are in need of a theory of interpretation (...) for rulings. In this essay, I assess the question of what is an appropriate doctrine of ruling interpretation by applying the arguments of the living constitutionalists to Supreme Court rulings. Contemporary proponents of a progressive doctrine of interpretation for constitutions—variously called the ‘living tree,’ ‘living force,’ or ‘living constitution’ doctrines of interpretation—appear to embrace two theses. The first thesis, which we can call the ‘progressive thesis,’ is the view that the Supreme Court ought to ensure that our highest laws are in compliance with contemporary values. The second thesis is the ‘doctrine of judicial supremacy’ which maintains that all lower judicial and non-judicial actors are to accept and adhere to the rulings of the Supreme Court.I argue that these two theses—the progressive thesis and the doctrine of judicial supremacy—are in tension with one another. Embracing the second thesis requires abandoning the first, while embracing the first thesis requires abandoning the second. Contemporary living constitutionalism, as defended by prominent advocates like Chief Justice Beverly McLachlin, Justice Ian Binnie, Australian Justice Michael Kirby, legal scholar Peter Hogg, and others, is incoherent. In the end, those who embrace the progressive thesis must rely on the claim that the Supreme Court ought to have a monopoly on the use of progressive interpretation, and that lower courts and non-judicial actors must use originalist methods for interpreting the text of Supreme Court rulings. To make this argument, the advocates of progressive constitutional interpretation must be advocates of originalism—not half-hearted supporters, but enthusiastic, full-on supporters, however much they may, elsewhere in their writings, condemn originalism as a practically-flawed, unworkable, or unenlightened method of interpretation. (shrink)

First of all, I would like to thank to the Philosophy of Law Department for this encounter with Professor Solum. It is really a pleasure meeting you Professor, and having the possibility to discuss this profoundly interesting and courageaus text with my colegues and specially with its author. The adjetive I have just used is not simply politeness, I really think we are in front of a very interesting work not only because of its persuasive humorous rhetoric but mainly because (...) it is a text that interrogates its own tradition even if it is with the intention to oxygenate, give air to it. And from a critical position that is something always to be welcomed. Nevertheless what I want to argue in this brief words is that what it is surprising (for my humble point of view) is that originalism, even in this new textual linguistic outfit or clothing, doesnt still address the question of the concept of origin itself. A question and a signifier that has a long inscription not only in western philosophical and interpretative traditions (meaning Nietzsche, Freud, Philosophical Hermeneutics as Gadamer, Ricoeur or in Derrida s deconstruction and so on) but also in non western interpretative tradition such as the Talmudic, for example. In these lines of thought the origin is unreachable, either lost or doesnt exist at all as far as there is no absolute ground that soustain an unique pure original meaning. In short, it is an empty signifier, obviously in dispute. So at last what it is called “original public meaning” it is no more than the result of the force relations between discourses. In other terms, there is an internal intimate relationship between power, language and interpretation. As Bajtin puts it (a russian linguist from the early XX century): the sign is the arena of social struggle. Or as Roland Barthes use to write: power parasitizes the language itself. (shrink)

James E. Fleming’s new contribution to the interpretive debate successfully exposes “new originalist” failures to find defensible middle ground between a Dworkinian approach to constitutional interpretation and the now widely discredited originalism of Raoul Berger. Fleming also exposes the irony of “new originalist” efforts to vindicate democracy and the rule of law. Less persuasive are Fleming’s reasons for optimism about the future of constitutional theory and fidelity to a constitution that seems increasingly beyond reform.

Constitutional interpretation in Canada is dominated by the metaphor of the “living tree”. Living tree constitutional interpretation is usually defined in terms of its incompatibility with what is understood in Canada to be the central commitment of originalist interpretation: that the constitution is, in some sense, “frozen” at the moment of adoption. But the tenets of originalism that are used as a definitional contrast are not widely held by originalist constitutional scholars today, and are in fact expressly rejected in (...) the new originalist theories that have been developed principally in the United States over the past 20 years. There has not been a meaningful engagement in Canada with contemporary schools of originalist interpretation. The originalism rejected by the Supreme Court of Canada in 1985 , is not the new originalism, and a rejection of this new family of interpretive theories does not necessarily follow from the fact of the Supreme Court of Canada’s rejection of original intent originalism. Unfortunately, the Canadian courts have continued to affirm living tree constitutional doctrine and denounce originalism without providing much of an account of what they are accepting or rejecting. This paper is a prefatory study to an engagement with new originalist scholarship. I attempt a statement of the current commitments in Canadian living constitutional doctrine and, in passing, note the Supreme Court’s attitudes towards originalism. My purpose is to determine what the central commitments of living tree constitutional doctrine are, as a preliminary step towards a later study to determine the extent to which Canadian doctrine is truly incompatible with orginalist interpretation. I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: the doctrine of progressive interpretation; the use of a purposive methodology in progressive interpretation; the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and the presence of other constraints on judicial interpretation. (shrink)

Originalism is a force to be reckoned with in constitutional interpretation. At one time a monolithic theory of constitutional interpretation, contemporary originalism has developed into a sophisticated family of theories about how to interpret and reason with a constitution. Contemporary originalists harness the resources of linguistic, moral, and political philosophy to propose methodologies for the interpretation of constitutional texts and provide reasons for fidelity to those texts. The essays in this volume, which includes contributions from the flag bearers (...) of several competing schools of constitutional interpretation, provides an introduction to the development of originalist thought, showcases the great range of contemporary originalist constitutional scholarship, and situates competing schools of thought in dialogue with each other. They also make new contributions to the methodological and normative disputes between originalists and non-originalists, and among originalists themselves. (shrink)

Originalism is a force to be reckoned with in constitutional interpretation. At one time a monolithic theory of constitutional interpretation, contemporary originalism has developed into a sophisticated family of theories about how to interpret and reason with a constitution. Contemporary originalists harness the resources of linguistic, moral, and political philosophy to propose methodologies for the interpretation of constitutional texts and provide reasons for fidelity to those texts. The essays in this volume, which includes contributions from the flag bearers (...) of several competing schools of constitutional interpretation, provides an introduction to the development of originalist thought, showcases the great range of contemporary originalist constitutional scholarship, and situates competing schools of thought in dialogue with each other. They also make new contributions to the methodological and normative disputes between originalists and non-originalists, and among originalists themselves. (shrink)

Sainsbury and Tye present a new theory, 'originalism', which provides natural, simple solutions to puzzles about thought that have troubled philosophers for centuries. They argue that concepts are to be individuated by their origin, rather than epistemically or semantically. Although thought is special, no special mystery attaches to its nature.

_Why originalism is a flawed, incoherent, and dangerously ideological method of constitutional interpretation__ “Chemerinsky... offers a concise, point-by-point refutation of the theory [of originalism]. He argues that it cannot deliver what it promises—and if it could, no one would want what it is selling.”—David Cole, _New York Review of Books__ Originalism, the view that the meaning of a constitutional provision is fixed when it is adopted, was once the fringe theory of a few extremely conservative legal scholars (...) but is now a well-accepted mode of constitutional interpretation. Three of the Supreme Court’s nine justices explicitly embrace the originalist approach, as do increasing numbers of judges in the lower courts. Noted legal scholar Erwin Chemerinsky gives a comprehensive analysis of the problems that make originalism unworkable as a method of constitutional interpretation. He argues that the framers themselves never intended constitutional interpretation to be inflexible and shows how it is often impossible to know what the “original intent” of any particular provision was. Perhaps worst of all, though its supporters tout it as a politically neutral and objective method, originalist interpretation tends to disappear when its results fail to conform to modern conservative ideology. (shrink)

The purpose of this essay is two-fold. The first aim is to introduce the reader to Semantic Originalism - a version of the New Originalism that is fully articulated in a long article of that name. The reader's guide in Part II provides a very short summary and accessible guide to the argument of Semantic Originalism. The second aim is to provide access to an exchange between Stephen Griffin and myself in the Blogosphere. Griffin's eight questions and (...) comments about Semantic Originalism and my replies are reproduced in lightly edited form in Part III. My concluding remarks about Griffin's questions included a three dimensional model of the space of theoretical argument about originalism: that model is presented in Part IV. This version of "A Reader's Guide to Semantic Originalism and a Reply to Professor Griffin" was uploaded on June 19, 2008, and it replaces all prior versions. (shrink)

This is a work of constitutional theory that explores the nature of American constitutional interpretation through a reconsideration of the long-standing debate between the interpretive theories of originalism and nonoriginalism. The book presents the novel argument that a critique of the underlying premises of originalism dissolves not just originalism but nonoriginalism as well, which leads to the recognition that constitutional interpretation is already and always structured. By their fidelity to the Constitution, Americans are a textual people in (...) that they live in and through the terms of a fundamental text. On the basis of this central idea, the book presents a new understanding of constitutional interpretation and an innovative account of the democratic legitimacy and binding capacity of the Constitution. (shrink)

Caroline New is an energetic activist who has interpolated critical realist ideas into the front-line of political activism. In this wide-ranging interview, she begins by reflecting on her life and how she became a realist and her account is illustrated with personal anecdotes recalling memories of well-known philosophers and activists from the time. She discusses how her position set her apart from other feminists and she examines the interacting threads of longstanding debates on the political left, as well as longstanding (...) debates within critical realist circles, such as the relative importance of quantitative methods in social research and the scope for agency as a source of intentional change. Finally she brings some of her ideas to bear on contemporary issues. This engaging interview notably provides some of the social context in which critical realism developed, while also pointing towards its future potential. (shrink)

Caroline New is an energetic activist who has interpolated critical realist ideas into the front-line of political activism. In this wide-ranging interview, she begins by reflecting on her life and how she became a realist and her account is illustrated with personal anecdotes recalling memories of well-known philosophers and activists from the time. She discusses how her position set her apart from other feminists and she examines the interacting threads of longstanding debates on the political left, as well as longstanding (...) debates within critical realist circles, such as the relative importance of quantitative methods in social research and the scope for agency as a source of intentional change. Finally she brings some of her ideas to bear on contemporary issues. This engaging interview notably provides some of the social context in which critical realism developed, while also pointing towards its future potential. (shrink)

Wherever a government or state is concerned with the welfare of its citizens, there will probably also exist policies which compel the individual citizen to undertake or abstain from activities which affect that citizen alone. The set of theories behind such policies is collectively known as ‘paternalism’. It is not hard to understand why this term has developed strong pejorative overtones. Policies of this type appear to offend a fundamental tenet of liberal societies: namely, that the individual is best placed (...) to know what is in his or her interests. Paternalistic policies imply, and are concerned with correcting, failures of precisely this kind of judgement. And yet, at the same time, there is a popular consensus that compelling people to wear a seat belt when driving a car is a reasonable restriction of personal liberty. Paternalism may be difficult to accept in principle, but it is equally difficult to avoid in practice. Not surprisingly, the literature reveals a long heritage of debate in a wide range of academic disciplines. This debate reveals a failure to make progress in two areas in particular. First, analyses of paternalism often confuse policies which are actually concerned with correcting failures of market exchange — in particular, those concerned with insufficient or imperfect information — with those which are genuinely paternalistic. One objective of this paper will be to clarify the difference between these two kinds of policy. (shrink)

In this article we challenge the notion that diversity serves as a good proxy for educational justice. First, we maintain that the story about how diversity might be accomplished and what it might do for students and society is internally inconsistent. Second, we argue that a disproportionate share of the benefits that might result from greater diversity often accrues to those already advantaged. Finally, we propose that many of the most promising and pragmatic remedies for educational injustice are often rejected (...) by liberal proponents of “diversity first” in favor of remedies that in most cases are practically impossible, and often problematic on their own terms. We argue that schools that are by geography and demography not ethnically or socioeconomically diverse still can successfully confront the obstacles that their students face in creating a life they have reason to value. (shrink)

Feminist Standpoint Theory claims that by virtue of their social positioning women have access to, or can achieve, particular and/or better knowledge of gendered social relations. The epistemology, various versions of which are reviewed in the paper, has been criticised for over homogenising women. In its simplest form this critique claims that women’s diversity rules out communality and collective interests, and that FST unawarely takes white middle class Western women as representative. In its stronger, postructuralist form this critique undermines feminism (...) by reducing the category ‘women’ to an effect of discourse whose referent is, and should be, constantly shifting. The paper argues for the reality of sex difference and puts forward a realist defence of a modified Feminist Standpoint Theory. (shrink)

Why is there no sustained tradition of argument concerning the existence of a supreme (omniscient and omnipotent) being who is perfectly evil, as there is about one who is perfectly good? Arguments which are reflections of the ontological, cosmological and teleological arguments, and arguments based on personal experience or the occurrence of antimiracles (harmful events not explicable by science) could have provided at least as good grounds for belief in such a being (ie for antitheism) as their originals in fact (...) provide for theism. An imaginary encyclopedia entry, in which fictional antitheistic arguments and thinkers are presented, illustrates this point. The reason for the nonexistence of a tradition of antitheism seems therefore to be that it is merely emotionally, not that it is rationally, less inviting than theism. (shrink)

When a normative moral theory collides with our beliefs, we must change either our beliefs or our theory. It is not always clear which we should change; but it is clear that we must change something. I shall consider two collisions between utilitarianism and what we believe, or are supposed to believe. About the first collision, I am going to say that the belief is false and that therefore there is no call to change utilitarianism. About the second, I am (...) going to say that if the belief is true, utilitarianism cannot be changed to accommodate it; I shall leave it open, though, whether the belief is true. The two collisions are related, though different. They both concern the utilitarian thesis about self-sacrifice. (shrink)

This paper reports the findings of a case study of recent IACR conferences where subtle, but significant, gender differences in conference participation were observed. It goes on to use notions of gender order, agency and structure, styles and genres to explain the key causal factors that generate these differences. It concludes with some suggestions about how these gender differences could be minimised in future conferences.

Literature, like the visual arts, poses its own philosophical problems. While literary theorists have discussed the nature of literature intensively, analytic philosophers have usually dealt with literary problems either within the general framework of aesthetics or else in a way that is accessible only to a philosophical audience. The present book is unique in that it introduces the philosophy of literature from an analytic perspective accessible to both students of literature and students of philosophy. Specifically, the book addresses: the definition (...) of literature, the distinction between oral and written literature and the identity of literary works the nature of fiction and our emotional involvement with fictional characters the concept of imagination and its role in the apprehension of literary works theories of metaphor and postmodernist theory on the significance of the authors' intentions to the interpretationof their work an examination of the relevance of thruth and morality to literary appreciation Lucid and well organised and free from jargon, hilosophy of Literature: An Introduction offers fresh approaches to traditional problems and raises new issues in the philosophy of literature. (shrink)