'This Constitution': constitutional indexicals as a basis for textualist semi-originalism.

AuthorGreen, Christopher R.

Debate over proper methods of constitutional interpretation is interminable, in part because the Constitution seems not to tell us how it should be interpreted. I argue here that this appearance is misleading. The Constitution repeatedly refers to itself with the phrase "this Constitution," and claims to make itself supreme law of the land. Debates over what should be supreme for constitutional interpretation can be resolved if, but only if, we have a sufficiently-detailed understanding of what the Constitution is. I consider seven possibilities for what might be the interpretively-supreme "Constitution": (1) the original expected applications; (2) the original ultimate purposes; (3) the original textually-expressed meaning or Fregean sense (the alternative I favor); (4) a collection of evolving common law concepts; (5) a text expressing meaning by today's linguistic conventions; (6) a collection of moral concepts refined through an evolving tradition of moral philosophy; and (7) a collection of non-binding recommendations. Resolving between these alternatives is possible if, but only if, we know that "this Constitution" means.

The phrase "this Constitution" on its own is not perfectly perspicuous; the "this Union" clause in Article IV shows that "this" can refer to entities that are neither composed of text nor fixed and unchanging. It is not immediately clear what event--what "constituting"--the word "Constitution" refers to. Canvassing in detail the indexical language of the federal and state Constitutions, I argue that the Constitution is composed of language whose meaning is fixed at the time of the Founding. The close textual relationship of "this Constitution" to forms of "here" and to "enumerate" and explicit references in state constitutions to "this Constitution" appearing on parchment, including bits of language, and doing things "expressly" all point toward a Constitution that is composed of language, and so to textualism. The use of "now," the distinction in the Preamble between "ourselves" and "our posterity, "the specification in the Preamble and Article VII of ratifying conventions as the constitutional author, and the reference to "the time of the Adoption of this Constitution" all point toward a non-intergenerationally-authored constitution that speaks at the time of the Founding and is historically fixed.

INTRODUCTION I. THE "WHAT IS THE CONSTITUTION" ISSUE: SEVEN POSSIBLE ANSWERS A. Three Historically Bound Definitions 1. The Constitution as Original Ultimate Purposes 2. The Constitution as Collection of Original Applications 3. The Constitution as Historically Situated, Sense-Expressing Text B. Other Distinctions: Intent v. Understanding v. Meaning, Objective v. Subjective, and Ratifiers v. Framers C. Three Nonhistorical Forms of Textualism 1. The Constitution as Set of Moral Principles 2. The Constitution as Historically Unanchored, Contemporary Meaning-Expressing Text 3. The Constitution as Collection of Common Law Concepts D. The Constitution as Nonbinding E. The Contingency of Constitutional Ontology II. CONSTITUTIONAL INDEXICALS AS A BASIS FOR TEXTUALIST SEMI-ORIGINALISM A. The "This Union" Problem B. "Shall Be Bound" and the Binding Constitution C. Textualism 1. Here is the Constitution: "This" and Forms of "Here" 2. "Enumeration in the Constitution" 3. Engrossing "This Constitution" on Parchment 4. "This Constitution" as Composed of Language 5. "This Constitution" Performing Actions "Expressly". D. Semi-Originalism: The Historically Confined, Nonintergenerational Constitutional Author 1. The Distinction Between "Ourselves" and "Our Posterity," and Ratifying Conventions as "We the People". 2. "Now" and the Historically Confined Constitution 3. "The Time of the Adoption of This Constitution" E. What About Amendments? III. OBJECTIONS A. Article VI as Tautological B. The Circularity Objection CONCLUSION This Constitution ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby... (1) 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.... (2)

INTRODUCTION

Academic ferment over originalism in its many varieties has persisted nonstop since Paul Brest invented the term in 1980. (3) The debate "abounds in troublesome arguments--endlessly debated, perennially plausible, perennially suspect." (4) This Article tackles the debate by means of a question explored most fully--but not conclusively resolved--by Walter F. Murphy and his coauthors: what is the Constitution. (5) Because the Supremacy Clause, quoted above, makes the Constitution "supreme," a resolution of the "What is the Constitution?" question will tell us, assuming that we agree with Article VI, what should be supreme in our constitutional interpretation.

This Article is the first attempt to comprehensively assess the Constitution's self-presentation on the basis of the uses of "this Constitution" and other words like "now," "we," and "here"--what philosophers of language call "indexicals" (6)--in state and federal constitutions. This Article greatly elaborates on an approach briefly suggested by Akhil Reed Amar, (7) Vesan Kesavan and Michael Paulsen, (8) and Larry Solum, (9) who each contends that the "this Constitution" reference in the Supremacy Clause provides a basis for some form of constitutional textualism or originalism. I argue that the bare form of their argument is at best incomplete, because the "this Union" clauses show that a constitutional "this" can refer to entities that are neither composed of text nor historically confined to the time of the Founding. However, a closer examination of other instances of the phrase "this Constitution," both in state constitutions and elsewhere in the Federal Constitution, makes clear that the phrase is a historically confined textual self-reference. A textualist semi-originalism is the result.

Part I first sets out seven possible entities that could conceivably serve as an interpretively paramount "Constitution" in keeping with various positions on interpretation that have been proposed--that is, seven possible "constitutional ontologies." The first three of these entities are confined to the time of the Founding. We might take as interpretively supreme, and hence as "the Constitution," either (1) the original ultimate constitutional purposes or rationale, (2) the original set of tangible expected constitutional applications, or (3) the meaning originally expressed in the constitutional text, which might diverge from the Founders' purposes and from the applications they expected the constitutional provisions to produce. Another three possible interpretively paramount candidates for "the Constitution" might be seen as forms of textualism, but without a historical anchor. We might take the textual categories either (1) as expressing moral principles whose precise content can only be understood through a tradition of moral reflection, (2) as a contemporary coordination device on the basis of the contemporary meaning of its language, or (3) as common law concepts, elaborated by judges only over the course of generations. Or, finally, departing both from a historically situated and a textual Constitution, we might understand the Constitution as nonbinding, simply offering reasons that can be overridden by sufficiently important contrary considerations.

After sketching these seven possible constitutional ontologies, I argue that each of these understandings of the nature of the Constitution could have been made explicit in a supremacy clause. Because of this contingency in constitutional ontology, reasoning about the function of a written constitution, or the method of interpretation that would be normatively most attractive, goes astray to the extent that it departs from whatever constitutional ontology is expressed in our actual Supremacy Clause. Functional and normative arguments are only relevant to an understanding of the nature of the actual Constitution to the extent that views about the function of a constitution or the norms that govern desirable results were, in fact, embodied in our actual "this Constitution" of Article VI.

Part II turns to the substance of constitutional indexicals as a basis for proper constitutional ontology rooted in Article VI. I argue that the bare form of the Amar-Kesavan-Paulsen-Solum argument is unsuccessful, because the word "this" is not inevitably a historical or textual self-reference; Article IV refers to "this Union," (10) an entity which can grow or shrink through the generations and which is not composed of language. If "this Constitution" in Article VI were our only guide, it might be possible to consider the Constitution as non-textual or of intergenerational extent in time. However, an examination of the full set of uses of the term "this Constitution" in the Federal Constitution, together with other constitutional indexicals, can resolve the meaning of "this Constitution" in the Supremacy Clause. A full survey of this evidence supports an understanding of "this Constitution" as a historical and textual self-reference, and taking the Constitution as binding. Article VI's "shall be bound" (11) language indicates plainly that the Constitution presents itself as a binding obligation, not merely as a useful source of guidance or a method of supplying coordination, and a continuous tradition of American political culture from the Founding to today views officeholders as satisfying Article VI with their oaths, not swearing allegiance to something else. The Necessary and Proper Clause links "foregoing" (12) grants of power with the grants of power elsewhere in "this Constitution," while other clauses use "enumeration" in reference to "the Constitution," (13) and state constitutions...

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