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Constitutional Texting

By Lawrence B. Solum


\u22Constitutional Texting\u22 introduces an account of constitutional meaning that draws on Paul Grice\u27s distinction between \u22speaker\u27s meaning\u22 and \u22sentence meaning.\u22 The constitutional equivalent of speaker\u27s meaning is \u22framer\u27s meaning,\u22 the meaning that the author of the constitutional text intended to convey in light of the author\u27s beliefs about the reader\u27s beliefs about the author\u27s intentions. The constitutional equivalent of sentence meaning is \u22clause meaning,\u22 the meaning that an ordinary reader would attribute to the text at the time of utterance without any beliefs about particular intentions on the part of the author. Clause meaning is possible because the words and phrases used in the Constitution have conventional semantic meanings--ordinary meanings in a natural language, English, as it was used at the various times when constitutional text was created and promulgated. The meaning of the Constitution should be understood as clause meaning. This Gricean view provides foundations for the theory that is sometimes called \u22original meaning originalism\u22 or \u22the new originalism.\u22 This theory of constitutional meaning is developed in the context of commentary on Steven D. Smith\u27s recent book, Law\u27s Quandary. Smith argues that the meaning of legal texts must ultimately be cashed out in terms of the intentions of some author or authors. This essay examines that claim in depth and argues that Smith\u27s view is mistaken. The meaning of the Constitution is not determined by the semantic intentions of the drafters or ratifiers; rather, the best theory of the meaning of the Constitution is based on the ordinary or technical meaning of its words and phrases as they would have been understood by the relevant audiences, citizens and lawyers, at the times particular constitutional provisions were adopted and promulgated. Part I is entitled \u22Introduction: Talking and Texting,\u22 and it introduces the Gricean themes of the essay in the context of \u22text messages\u22 or \u22texting.\u22 Part II is called \u22Constitutional Texting\u22 and it situates the essay in contemporary constitutional theory. Part III is \u22Smith,\u22 and relates the themes of the essay to Smith\u27s book, Law\u27s Quandary, in the context of Paul Grice\u27s theory of meaning. Part IV is called \u22Framer\u27s Meaning and Clause Meaning\u22 and it develops a Gricean and anti-Smithian account of constitutional meaning. Part V is \u22Conclusion: How to Do Things with Clauses,\u22 and it argues that successful constitutional texting requires that framers and interpreters attend to clause meaning as the meaning of the Constitution

Topics: constitution, constitutional theory, constitutional interpretation, Paul Grice, Steven Smith, sentence meaning, speakers meaning, clause meaning, framer\u27s meaning, originalism, original intent, original public meaning, new originalism, Constitutional Law, Legal History, Legal Theory
Publisher: Scholarship @ GEORGETOWN LAW
Year: 2006
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