Diachronic constitutionalism: a remedy for the court's originalist fixation.

AuthorSchotter, Geoffrey
  1. THE FIXATION THESIS AND SYNCHRONIC MEANING A. Synchronic Meaning 1. New Originalism and the Clause Meaning Thesis 2. The Separation of Synchronic Meaning from Applicative Law 3. The Finite Diachronic Time Window B. Subjectivity and Discretion Under the Fixation Thesis. 1. Subjective Interpretation 2. Discretionary Construction II. DISTRICT OF COLUMBIA V. HELLER: THE FIXATION THESIS IN PRACTICE A. The Origins of Heller B. Scalia's Opinion for the Court 1. Interpretation 2. Construction C. Stevens's Dissent 1. Interpretation 2. Construction III. THE DIACHRONIC METHOD A. The Structural Duality of Written Constitutions 1. The "Newtonian" Constitution 2. The "Darwinian" Constitution B. Structural Anachronisms 1. "Newtonian" Amendments and "Darwinian" Transformations 2. Transformations "from Above" and "from Below" 3. Legitimacy and Constitutional Change a. The Diachronic "Newtonian" Blueprint and Implied Structural Alteration b. The Legitimacy of "Darwinian" Transformations C. A Note on Discretion IV. HELLER REVISITED: MCDONALD V. CITY OF CHICAGO AND THE DIACHRONIC SECOND AMENDMENT A. The Fourteenth Amendment, the Bill of Rights, and the States B. The Clash of Synchronicities: McDonald and the Unmasking of Judicial Subjectivity 1. Alito's Opinion for the Court 2. Thomas's Concurrence 3. Stevens's Dissent C. The Diachronic Method and McDonald 1. The Second Amendment's Structural Teleological Meaning Within the 1791 Newtonian Framework 2. The Fourteenth Amendment's Structural Teleological Meaning Within the 1868 Newtonian Framework 3. The Combined Structural Teleological Meaning of the Second and Fourteenth Amendments Within the 2010 Darwinian Framework CONCLUSION The intellectual vanguard of the 1980s movement for originalism marched under the banner of judicial restraint. (1) The Supreme Court's power and willingness to shape modern social policy grew radically between the New Deal era of the 1930s and the Warren-Court era of the 1960s, (2) provoking a backlash by the closing decades of the twentieth century. In the 1980s, judges, legal scholars, and ordinary citizens began complaining more frequently and in greater numbers that politically motivated judicial activism was "unraveling ... the theoretical underpinnings of constitutional law" and making Court decisions increasingly unstable and unpredictable. (3)

    The originalist solution to the problem of an out-of-control judiciary was for judges to limit their application of constitutional provisions to the original meaning of the law contained in the Constitution's written text. (4) Judge Robert Bork, one of originalism's most outspoken defenders at the time, neatly summarized his creed as follows: "Either the Constitution and statutes are law, which means that their principles are known and control judges, or they are malleable texts that judges may rewrite to see that particular groups or political causes win." (5) If they are the latter, as Bork feared they had become, then the Court's constitutional doctrine would be as fickle as the American electorate. (6) Originalism was to be the anchor that prevented the Court from subverting its own constitutional authority.

    In the early 1990s, the Court--under the influence of recently appointed self-avowed originalists Justices Antonin Scalia and Clarence Thomas--began to incorporate originalist principles into its interpretation of constitutional provisions. (7) Yet the Court's "turn to history" (8) did not mitigate the "unraveling" of constitutional jurisprudence as the originalists of the 1980s had promised it would. During the first decade of the twenty-first century, many of the most divisive and contentious Supreme Court decisions have resulted from competing historical exegeses of the Constitution's text among different Justices. (9) These cases have recently been provoking the same charges of judicial recklessness that Bork leveled at the nonoriginalist Justices of his day. (10)

    Originalists have responded to this criticism by revising their doctrine's conception of textual meaning. The "old originalism" of the 1980s and early 1990s focused on the original intentions of the framers or ratifiers of constitutional provisions. (11) By the 2000s, it had become increasingly "subject to withering criticisms, based on questions about the evidentiary basis for the [framers'] imputed intentions and about the difficulties of aggregating what might have been disparate intentions or thoughts by framers and ratifiers, among others." (12) "New originalism," however, would focus on the original public understanding of those provisions--"what constitutional provisions were understood to mean by ordinary, albeit reasonably well-informed, readers of the terms at the time the terms were embedded in the Constitution." (13) Original meaning thus conceived was supposed to be more determinable and objective and therefore less susceptible to diametrically opposed but equally plausible interpretations.

    In 2008, the Court held for the first time in District of Columbia v. Heller (14) that the Second Amendment guarantees individual citizens the right to own and use firearms for the purpose of personal self-defense, at least within the home. (15) Heller drew considerable controversy not only because of its implications for the politically polarizing issue of gun control but also because it has laid bare to legal scholars and historians alike the failure of the originalist project to constrain the judiciary. (16) Because Heller concerned a Washington, D.C. law, however, the Court did not have the opportunity to address whether this new individual right is binding on the states as well as on the federal government. (17) The Court was given that opportunity two years later in McDonald v. City of Chicago. (18) In a plurality opinion, the Court "incorporated" (19) the right established in Heller through the Due Process Clause of the Fourteenth Amendment (20) using, ironically, the same "living constitutionalist" substantive due process analysis that the Warren Court used in its incorporation decisions. (21)

    Justice Scalia's majority opinion in Heller is widely cited as a paradigm example of the "new originalism" in practice. (22) Professor Lawrence Solum describes Heller as "represent[ing] the most important and extensive debate on the role of original meaning in constitutional interpretation among the members of the contemporary Supreme Court." (23) Solum uses the concrete example of Heller to help illustrate his own more abstract theory of original meaning, a theory he elaborates fully in Semantic Originalism. (24) In that article, Solum seeks to justify the "new originalism"--and originalism in general--as the interpretive theory that is not only best suited to helping judges determine the positive constitutional rules of law that bind them but also normatively superior in its ability to ensure that their reasoning remains faithful to those rules of law. (25)

    This Note uses Solum's argument in Semantic Originalism to expose the one fallacy that undermines originalism in both its "old" and "new" varieties: the fixation of the Constitution's meaning at the time of framing and ratification. (26) Solum labels this idea the "fixation thesis." (27) His purpose in Semantic Originalism is to demonstrate the superiority of the "new" over the "old" originalism by claiming that, unlike the multifarious and often-conflicting intentions of the framers and ratifiers, the Constitution's original public understanding is a positive linguistic fact--a "semantic content" that judges can discover by gathering and analyzing historical evidence. (28) Because such a meaning is both discoverable and determinable, Solum maintains, it is "part of the supreme law of the land," and judges are duty-bound by it. (29) This Note argues, on the contrary, that the historical fixation on the Constitution's textual meaning guarantees that such meaning can never be determined as a matter of absolute fact and that judges using originalist interpretive methodologies inevitably use their own subjective discretion when deciding constitutional cases.

    Historically fixed meaning precludes judicial restraint and objectivity is because it is synchronic in nature. The term "synchronic" was coined by the linguist Ferdinand Saussure, who distinguished synchronic meaning from diachronic meaning. (30) Synchronic meaning concerns meanings as they "exist at a certain point in time and are systematically related to one another at that point" whereas diachronic analysis is concerned with "relations between entities changing over time." (31) This Note proposes a diachronic theory of constitutional meaning that aims to bridge the divide between historical fact and normative law--a divide that the fixation thesis requires originalists to recognize--by allowing judges to inquire into how the decisions that the Constitution requires them to make are in a constant state of flux, even though the Constitution's text remains constant unless and until it is amended.

    The diachronic method makes use of three different conceptions of meaning that Solum introduces and distinguishes in Semantic Originalism: semantic meaning, applicative meaning, and teleological meaning. (32) Semantic meaning "refers to the semantic content of an utterance," applicative meaning "refers to the application of a general utterance to a particular case," and teleological meaning "refers to the purpose for an utterance." (33) Solum argues in Semantic Originalism that judges can only apply the law of the Constitution faithfully if they restrict their interpretation to its historically fixed semantic meaning. (34)

    Professor Jose Joel Alicea criticizes Solum's "thin" conception of original meaning as being inadequate for the purpose of binding judges to the popular sovereignty on which the Constitution's authority is founded. (35) This conception, according to Alicea, "allows for broad latitude in constitutional...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT