Saint Louis University Law Journal Volume 50 Number 2 A Tribute to the Honorable Michael A. Article 17 Wolff (Winter 2006) 2006 Originalism and the Sense–Reference Distinction Christopher R. Green University of Notre Dame Follow this and additional works at: https://scholarship.law.slu.edu/lj Part of the Law Commons Recommended Citation Christopher R. Green, Originalism and the Sense–Reference Distinction, 50 St. Louis U. L.J. (2006). Available at: https://scholarship.law.slu.edu/lj/vol50/iss2/17 This Article is brought to you for free and open access by Scholarship Commons. It has been accepted for inclusion in Saint Louis University Law Journal by an authorized editor of Scholarship Commons. For more information, please contact Susie Lee. SAINT LOUIS UNIVERSITY SCHOOL OF LAW ORIGINALISM AND THE SENSE–REFERENCE DISTINCTION CHRISTOPHER R. GREEN* ABSTRACT I deploy the sense–reference distinction and its kin from the philosophy of language to answer the question of what in constitutional interpretation should, and should not, be able to change after founders adopt a constitutional provision. I suggest that a constitutional expression’s reference, but not its sense, can change. Interpreters should thus give founders’ assessments of reference only Skidmore-level deference. From this position, I criticize the theories of constitutional interpretation offered by Raoul Berger, Jed Rubenfeld, and Richard Fallon, and apply the theory to whether the Fourteenth Amendment forbids racial segregation in public schools. I. INTRODUCTION Twice this past spring, disputes broke out among members of the Supreme Court about whether the Constitution changes. In his dissents in Roper v. Simmons1 and McCreary County v. ACLU of Kentucky,2 Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, sets out a vision of an unchanging Constitution. In both episodes, Justices Stevens, joined by Justice Ginsburg, opposes the originalist trio’s efforts on behalf of a living, changing Constitution. These disputes reveal the Justices’ failure to appreciate certain distinctions from the philosophy of language. Were these distinctions more clearly understood, a neglected middle ground would emerge for those who desire both to obey the historic, unchanging meaning conveyed in constitutional language and to take proper account of facts that have changed since the founding, or which the founders may have misperceived. The philosophy of language can thus uncover an attractive yet neglected position * Ph.D. candidate, philosophy, University of Notre Dame; J.D., 1998, Yale Law School. The author wishes to thank Bruce Ackerman, Larry Alexander, Paddy Blanchette, Jeff Goldsworthy, Bonnie Green, Ray Hain, Lynn Joy, Matt Kennedy, Andy Koppelman, Alasdair McIntyre, Luther Munford, Stephen Sachs, David Solomon, David Thunder, and participants in discussions at the University of Notre Dame and University of Texas at Austin. 1. 543 U.S. 551 (2005). 2. 125 S.Ct. 2722 (2005). 555 SAINT LOUIS UNIVERSITY SCHOOL OF LAW 556 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 50:555 and offer the prospect of closure to a debate that seems interminable. Indeed, these distinctions are urgently needed in order to rescue the Court from continued confusion over the relevance of historical materials in cases like Roper and McCreary County, or indeed in any case involving basic interpretive controversy. In the juvenile death penalty case, Roper, Scalia ridicules the Court for suggesting that constitutional outcomes can properly change: “What a mockery today’s opinion makes of Hamilton’s expectation [that the judiciary would be ‘bound down by strict rules and precedents’], announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years—not, mind you, that this Court’s decision 15 years ago was wrong, but that the Constitution has changed.”3 Later, he says, “In a system based upon constitutional and statutory text democratically adopted, the concept of ‘law’ ordinarily signifies that particular words have a fixed meaning. Such law does not change . .”4 A footnote disparages cases that have given “brave new meaning” to constitutional provisions.5 Scalia thereby suggests that any change in constitutional outcomes amounts to a change in the meaning of constitutional language.6 In response, Justice Stevens’s concurrence, joined by Justice Ginsburg, suggests that even the meaning of the Constitution can change. He denies that “the meaning of [the Eighth] Amendment [was] frozen when it was originally drafted,”7 and claims that the Framers would agree that “our understanding of the Constitution does change from time to time.”8 However, Stevens does not 3. 543 U.S. at 608 (Scalia, J., joined by Rehnquist, C.J., and Thomas, J., dissenting). 4. Id. at 629. 5. Id. at 627 n.9 (citing Lawrence v. Texas, 539 U.S. 558, 571–73 (2003); United States v. Virginia, 518 U.S. 515, 532–34 (1996); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 847–50 (1992)). 6. I should issue a caveat here about Justice Scalia’s views. In his Roper and McCreary County dissents, Justice Scalia suggests that originalism forbids any change in constitutional outcomes. But elsewhere, he claims that changing constitutional outcomes are not a problem for the originalist if a provision, like the Fourth Amendment, refers to a separate changing body of law. See, e.g., Georgia v. Randolph, 126 S. Ct. 1515, 1540 (2006) (“Justice STEVENS’ attempted critique of originalism confuses the original import of the Fourth Amendment with the background sources of law to which the Amendment, on its original meaning, referred. [C]hanges in the law of property to which the Fourth Amendment referred would not alter the Amendment’s meaning . There is nothing new or surprising in the proposition that our unchanging Constitution refers to other bodies of law that might themselves change.”). I do not attempt here to give a comprehensive or systematic account of Scalia’s views, but simply set out his views as he states them in his Roper and McCreary County dissents. To the extent that Justice Scalia allows for changing constitutional outcomes, his commitment in Roper to a fully unchanging constitutional law and his unqualified allegiance in McCreary County to the Framers’ views regarding constitutional outcomes would need to be tempered or further explained. 7. Id. at 587 (Stevens, J., joined by Ginsburg, J., concurring). 8. Id. SAINT LOUIS UNIVERSITY SCHOOL OF LAW 2006] ORIGINALISM AND THE SENSE–REFERENCE DISTINCTION 557 give any indication of how we might know when one of those times might be here again, explaining only that “the pace of that evolution is a matter for continuing debate.”9 Indeed, Stevens not only leaves the pace of constitutional evolution unclear and unmotivated, but also its direction: he exhibits no principle to explain either where to go with the Constitution or how fast. In his dissent in the Kentucky Ten Commandments case, McCreary County v. ACLU of Kentucky, Justice Scalia, with the same allies, again suggests that in order to maintain a stable constitutional meaning, we must adhere to the Founders’ practices: It is no answer for Justice STEVENS to say that the understanding that these official and quasi-official actions reflect was not “enshrined in the Constitution’s text.” The Establishment Clause, upon which Justice STEVENS would rely, was enshrined in the Constitution’s text, and these official actions show what it meant. What is more probative of the meaning of the Establishment Clause than the actions of the very Congress that proposed it, and of the first President charged with observing it?10 The Founders’ actions, for Scalia, are the best possible evidence of the meaning of their language. He considers the Framers’ actions alone, and thus neglects any possibility that an explanation from the Framers of why their actions were consistent with their language might shed better light on the text’s meaning. In response, Justice Stevens, joined again by Justice Ginsburg, again denies that the Constitution’s meaning is stable. Responding to Scalia’s dissent in his own dissent in the Texas Ten Commandments case, Van Orden v. Perry,11 Stevens says, It is our duty . to interpret the First Amendment’s command that “Congress shall make no law respecting an establishment of religion” not by merely asking what those words meant to observers at the time of the founding, but instead by deriving from the Clause’s text and history the broad principles that remain valid today.12 Stevens then cites racial school segregation, sex discrimination, and his concurrence in Roper as cases in which the Court properly departed from the original history of the Constitution.13 He then says, “We serve our constitutional mandate by expounding the meaning of constitutional provisions 9. Roper, 543 U.S. at 587. 10. 125 S. Ct. at 2754–55 (Scalia, J., joined by Rehnquist, C.J., and Thomas, J., dissenting) (internal citation omitted). 11. 125 S. Ct. 2854 (2005). 12. Id. at 2888 (Stevens, J., joined by Ginsburg, J., dissenting). 13. Id. (citing Brown v. Board of Education, 349 U.S. 294 (1955); Frontiero v. Richardson, 411 U.S. 677 (1973); Roper, 534 U.S. at 551–607 (Stevens, J., joined by Ginsburg, J., concurring)). SAINT LOUIS UNIVERSITY SCHOOL OF LAW 558 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 50:555 with one eye towards our Nation’s history and the other fixed on its democratic aspirations.”14 However, as in Roper, Stevens sets out no criterion for when the original history should be defeated by “democratic aspirations.” Justices Scalia and Stevens construct arguments with a critical implicit common premise. In effect, Scalia reasons this way: (1) Constitutional outcomes properly change only if constitutional meaning properly changes; (2) Constitutional meaning cannot properly change; therefore (3) Constitutional outcomes cannot properly change. Preferring modus ponens to Scalia’s modus tollens, Stevens agrees with (1), but instead implicitly reasons (1) Constitutional outcomes properly change only if constitutional meaning properly changes; but (~3) Constitutional outcomes can properly change; therefore (~2) Constitutional meaning can properly change.