"THIS".

• Author: Sunstein, Cass R.

1. "TO SUPPORT THIS CONSTITUTION"

   Article VI of the Constitution says this:

   This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Senators and Representatives before mentioned, and the Members of the several State legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. (1) The "supreme law of the land" includes "this Constitution," and federal officers (along with state legislators) are "bound, by oath or affirmation, to support this Constitution." Do these words have implications for constitutional interpretation? Might they settle longstanding debates? Some people think so. (2)

   Emphasizing the importance of the oath, Professor Green concludes: "Those who swear the Article VI oath should ... take the historic textually expressed sense as interpretively paramount." (3) On one view, the term "this Constitution" is equivalent to "the original public meaning of this Constitution," (4) and perhaps the oath requires that conclusion.

   As we shall see, the argument is of general interest. It raises several questions about what, exactly, originalism should be taken to entail, (5) and without attempting to resolve them, I shall devote considerable attention to those puzzles. It also tells us something about constraint and choice in interpretation more broadly.

   Let us begin with the text. (6) Simply as a matter of language, the referent of "this Constitution"--what "this" refers to--is clear. (7) It is the written Constitution of which Article VI is a part. (8) The word "this" is what philosophers and linguists call an "indexical." (9) Indexicals like "now," "here," and "this" point us to their referent. It follows that the word "this" in the phrase "this Constitution" points to the written text of the Constitution of the United States in which the phrase appears. Other constitutions are not part of "the supreme law of the land," and public officials are not bound, by oath or affirmation, to support other constitutions. That much is straightforward.

2. OPTIONS

   Now turn to some constitutional questions, and ask how the oath of office might help to orient those who seek to answer them. (1) Does the First Amendment protect libelous speech? (10) (2) Does the Equal Protection Clause or the Privileges or Immunities Clause forbid racial segregation? (11) (3) Does the Equal Protection Clause or the Privileges or Immunities Clause forbid sex discrimination? (12) (4) Does the vesting of legislative power in Congress forbid Congress from granting broad discretion to administrative agencies? (13) (5) Does the vesting of executive power in a President of the United States forbid Congress from creating independent regulatory agencies? (14) (6) Does the Takings Clause forbid regulatory takings, or is it limited to physical takings? (15) (7) Does Article III of the Constitution require plaintiffs to show an "injury in fact"? (16) (8) Does the Fourteenth Amendment forbid affirmative action programs? (17) (9) Does the Fifth or Fourteenth Amendment forbid racial discrimination by Congress? (18) Now ask: How may, or how must, those who take the oath of office approach such questions?

   To answer such questions, we need to start with these two: What does the phrase "this Constitution" mean? (19) How do we interpret it? We might think that there is "this Constitution," and then there are theories of how best to interpret it. The theories are not "this Constitution." In the end, I believe that it is correct to insist on this point, and to separate theories of interpretation from the Constitution itself, but it will take us a while to get there. Suppose that we are originalists, in the sense that we believe that interpreters must focus on the "original public meaning" of the document. (20) If so, we might get tempted to think that "this Constitution" is its original public meaning. (21) That suggestion immediately raises another question: how do we understand the "original public meaning"? (22) Things immediately become exceptionally complicated here, because public meaning originalism includes a family of approaches, and because the family's members are very different from one another. (23) Consider in that light an assortment of possible approaches, (24) starting with several within the category of "originalists" and proceeding to nonoriginalist alternatives, and acknowledging that some of them might overlap (25):

   (1) Semantic originalism: The Constitution must be interpreted in a way that is consistent with the original semantic meaning of its words. (26) On that view, "executive power" cannot be interpreted to diverge from its semantic meaning at the time of the founding, (27) but interpreters are not bound by the original understanding of what that power specifically entailed, or of how far it reached. (28) Interpreters must follow the words as a matter of semantics, but they need not focus on the original intent or the original public meaning. (Semantic originalism seems compatible with "living originalism," authorizing a set of rulings that depart dramatically from the original public meaning as enriched by the historical context, or from the expectations of the Constitution's ratifiers. (29))

   (2) Sense-reference originalism: The Constitution must be interpreted to fit with its original sense, but not necessarily its original referents. (30) On that view, the words "equal protection" cannot be interpreted in a way that departs from how they were taken at the time of ratification as a matter of language (their "sense"), but interpreters are not bound by the original understanding of how they applied to actual cases (their "referents"). (31) It might follow, for example, that the Fourteenth Amendment forbids racial segregation, even if the ratifiers did not believe that the Fourteenth Amendment forbids racial segregation. Similarly, it might follow that the First Amendment protects commercial advertising, even if the ratifiers did not believe that.

   (3) Public meaning originalism, with the contextual enrichment of history (including contextual disambiguation): The Constitution must be interpreted in a way that fits with its original public meaning, including not only semantic meaning, but also the shared public context, (32) which includes various forms of "contextual enrichment." (33) Alert to the flexibility of semantic originalism and the risk of instability over time, James Madison vigorously endorsed this view toward the end of his life, in a plain effort to stabilize constitutional meaning. (34) In Solum's words, public meaning "is meaning for the public, the citizenry of the United States, and hence is related to the legal concept of 'ordinary meaning' as distinguished from 'technical meaning.'" (35) In Fallon's words, "Rather than defining the original public meaning as limited to minimally necessary (for intelligibility) or historically noncontroversial meaning, mainstream public meaning originalists posit that constitutional provisions' original public meanings consist of minimal meanings plus some further content that, they maintain, can also be discovered as a matter of historical and linguistic fact." (36)

   (4) Original methods originalism: The Constitution must be interpreted in a way that is consistent with the ratifiers' views about how it should be interpreted. (37) On that view, judges need to follow the ratifiers' theory of interpretation. If the ratifiers believed that judges should follow the original public meaning, judges must follow the original public meaning, and the meaning of that proposition should depend on what the ratifiers believed. (38)

   (5) Original expectations originalism: The Constitution must be interpreted in a way that is consistent with the ratifiers' expectations about how it should be interpreted. (39) The focus here, unlike in (4), is on particular results. This view raises many questions, but it would follow, for example, that if the ratifiers had a narrow conception of "the freedom of speech," current interpreters are bound by their view, (40) and that if the ratifiers believed that the vesting of executive power in the President required a strongly unitary presidency, current interpreters are bound by that view as well.

   (6) Democracy-reinforcing judicial review: The Constitution should be interpreted in a way that makes the democratic process work as well as possible, and that makes up for deficits in that process--by, for example, vigorously protecting the franchise. (41) On this view, interpreters should understand semantically ambiguous constitutional provisions by reference to the ideal of self-government. The idea of one-person, one-vote might well be defensible on this ground; judges should certainly look skeptically at restrictions on the right to vote, and at legislation that targets the politically powerless. Democracy-reinforcing judicial review might be defended by reference to the republican aspirations of the founding document. But it is not originalist.

   (7) Moral readings: The Constitution should be subject to a "moral reading," in the sense that its terms should be interpreted in a way that makes best moral sense of them. (42) The moral reading is the judges' own, but judges live in society, and they are not free agents. When, for example, the Court struck down racial segregation, it might well be understood not to have spoken for the original understanding, but to have put the Fourteenth Amendment in its best moral light. Broad...