Co-blogger Peter and I have been trading a bunch of emails lately about the interpretation and application of the U.S. Constitution, an exchange that probably will not see the light of day. However, Lawrence Solum and Robert Bennett have an interesting exchange up at the Northwestern Colloquy page about original meaning and the philosophy of language.

This point by Solum seems to me eminently correct:

The meaning of the Constitution is best understood as the clause meaning of its provisions. But this does not entail that history and evidence about original meaning is not relevant to the process of constitutional interpretation. Clause meaning is not ahistorical or acontextual. Linguistic conventions change over time. Words and phrases that once had one public meaning may come, over time, to acquire another. Of course, in the case of the Constitution, the Constitution itself acts as a check on this process. That's because the Constitution is itself public, widely available, and central to our legal culture. Constitutional usages are likely to be preserved, simply because they are repeated, studies, quoted, and interpreted. But in those cases in which the original public meaning of the Constitution has been swept away by a shift in the linguistic winds, the clause meaning is the "sentence meaning" that would have been assigned at the time the constitution was ratified and not the sentence meaning that we would assign based on contemporary linguistic practices.

In my experience, many constitutional theorists haven't yet grasped that there has been a sort of Copernican revolution in constitutional theory. Many constitutional scholars assume that "originalism" means "intentionalism," and that talk about "original public meaning" is just a minor and insignificant tweak in originalist theory. Moreover, there is an implicit assumption that the "new originalism" is intended to serve the same political agenda as the "old originalism." These assumptions are simplistic and, for the most part, false.

Most of you have expressed some amount of skepticism or dismissal at my earlier post about the obligations of non-governmental non-lawyers to obey the Constitution. In an attempt at very-armchair sociology, let me ask a clarifying follow-up question.

Suppose you are considering amending your state constitution to provide for something that you think is politically or morally good and wise, but probably forbidden by the best reading of the federal constitution. Suppose also that despite being forbidden by the best reading of the federal constitution, it is very unlikely to be struck down by the courts or congress. Should you vote for it? May you vote for it?

[An example will probably muddy the question more than it clarifies, because people will disagree about what is morally good, what is the best reading of the constitution, and what the courts are likely to do about it. I can think of some election-law provisions that probably qualify, by my own lights.]