"This Constitution": Constitutional Indexicals as a Basis for Textualist Semi-Originalism
Green, Christopher R., Notre Dame Law Review
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". …