Our conversation is starting to turn to the question of how we access legal meaning—that is, into the epistemological question about how language and ideas work. This is too big a question to be more than hinted at here (I would urge readers to consult the works of Tara Smith, David Brink, and the like). But I will do my best to explain briefly why I believe what Prof. Williams does not: that “that there is some objective ‘meaning’ of constitutional language that can be wholly divorced from subjective understandings of some group of speakers and listeners.” Or something like that, anyway.
We use words to denote concepts, which are mental abstractions from the perceived facts of reality. These concepts are mental constructions, which stand for real qualities in the world. It’s the very fact that those qualities are real that explains how it’s possible that we may be mistaken about them. The word “fish,” for example, stands for a concept—not for any particular fish, but for all creatures with those fish-defining qualities. These qualities are facts in reality: the concept does not merely exist because we subscribe to it; it’s not a social construct. A fish really is not a dolphin, and even if everyone in our society chose to say that fish and dolphins are the same, they would be wrong. Note that I am not claiming that there is some intrinsic, Platonic form of “fishness.” But fishness does exist, in one sense: it’s a concept—a mental abstraction about real shared qualities between things. And it is objective—meaning that it is not invested with truth value simply by our decision to believe it; there is a fact of the matter about what a fish is, and we can submit that concept to scientific tests to see if it is correct.
Thus there is an objective meaning to words which can be divorced from the subjective understandings of persons, which is why it is possible for an author to be mistaken about the meaning of a written text. As Tara Smith writes,
words are shorthand for countless particular things of the relevant kind (“man” for all men; “shopping” for all shopping, and so on). The written law is also shorthand, drafted in deliberately broad terms in order to govern an array of cases that are similar in principle but different in particulars. The Constitution is written in particularly broad terms…. To objectively interpret the concepts used in law is to understand kinds…. While judgment is needed to identify which referents properly fall under the terms of a given law, then, that judgment is bounded by the words of the law. Stable law…requires not an immutable list of specific concretes, nor that we blindly obey the flawed or incomplete understanding of concepts and their distinguishing criteria held by particular men of an earlier era, but constancy in the kinds of concretes that the law refers to.
This much is sufficient for my purposes, because I am in the position of the hypothetical son of the dying inventor in Lon Fuller’s Morality of Law. The son, deciding to carry on and complete his father’s unfinished last invention, figures out how the device is supposed to work not by consulting his father’s intentions, but by analyzing the device in terms of its purpose and clues about how the machine is to operate. His concern, and mine, is with what and how—what is the Constitution and how does it work? In this sense, the task is only descriptive, and the objective theory of concepts serves us well.
But there is a second layer of complexity: why? What obliges us to complete the machine, or to follow the promise embodied in the law? And if, having committed ourselves to that promise, it turns out to mean something other than what we at first thought, are we still bound by it? This is what Lawrence Solum calls the distinction between semantic and normative originalism. And here I must answer that I simply don’t know. I don’t think the law knows, either. We are familiar with the doctrine of objectivity in contract law, under which a person cannot escape his obligation by claiming afterwards that he was only kidding. And if I agree to a promise containing non-specific terms—especially such a broad word as “liberty”—then I can’t say I’m not obliged to accept the results just because it turns out a way I didn’t expect. If I agree to submit a claim to arbitration, or even to a coin toss, I can’t refuse to accept the decision that goes against me. It likewise seems wrong to remove protections for a person’s freedom on the basis that he’s doing something people didn’t anticipate him doing when they used the word “liberty” in the Constitution. The concept of liberty includes that indeterminacy. Since a court decision typically purports to be a description of the content of the law, not the formation of an agreement, it seems reasonable to hold people to their promises even when the court, upon examining a promise, finds that it requires something the author did not expect. And although there are exceptions even in the law of contract whereby a mistaken belief as to the meaning of the words in the agreement might excuse performance, those situations generally involve an existing false belief about the meaning of the terms, as opposed to a simple lack of belief about how the term will be applied, or even an agreement to use a term, knowing that it is indeterminate, which is more often the case in disputes about the application of constitutional language.
It’s beyond the scope of this discussion to go further, in part because I’m convinced that the framers were familiar with the theory that we today call “substantive due process,” or that it is logically entailed by what they did believe. I have to second Prof. Lawson’s characteristically frank conclusion: “I am interested only in figuring out what the Constitution actually means; what anybody does with that meaning once they have it is not my concern” (a point that recalls one of my favorite law review articles, his marvelous The Rise and Rise of the Administrative State. One needs only read the first sentence to see why it’s dear to my heart). My focus is on what the Due Process of Law Clause means, which I believe can be differentiated from what particular people thought it meant at any one time.