The fidelity thesis is where Solum ties his account of orginalism to substantive issues of law. There are two general lines of questions concerning the fidelity thesis. One line concerns the relationship between the fidelity thesis and the rest of Semantic Originalism, while the other concerns the substance and import of the fidelity thesis itself. The fidelity thesis “maintains that because the semantic content of the Constitution is the supreme law of the land, we are obligated by it, unless there is an overriding reason of morality to the contrary.”
The fidelity thesis is not just a general claim that judges have some obligation of fidelity to law (or, more broadly, that citizens or officials, etc. have such a duty). Solum has a stronger thesis in mind, some of which is not really argued for in this particular essay. The semantic content is the supreme law of the land, for example, is not a consequence of the other three theses. This is a gap in the explication of the contribution thesis, at least. The Constitution says it is the supreme law of the land, and the Constitution is the conventional public meaning of the document when adopted, but the fidelity thesis does not follow from those claims. What we are committed to thus far is the view that the semantic content of the Constitution directly contributes to (or is part of) the law. That does not say that we need overriding moral reasons to set aside the semantic content, or that the semantic content dominates other sources of law, etc. What is says is that the semantic content is one source we must consider in explicating U.S. law. To repeat from an earlier post, practice and decisions, etc., are not allocated any particular roles by any of the three theses before the fidelity thesis. As a result, the fidelity thesis does not follow directly from the other three theses, and there must be substantive normative argument for the fidelity thesis. There is no plausible sense in which the fidelity thesis can be read as a claim of fact. There really isn’t any argument for it in this essay. It may be defensible and may even be right, but in the context of this essay, it rests as an assumption only.
To be sure, Solum does offer a survey of arguments in favor of fidelity to law, understood as an obligation to obey the law. But fidelity to law is not the fidelity thesis. The thesis is quite different – it demands fidelity to original conventional public meaning and permits deviation only for overriding moral reasons. The arguments for fidelity to law are not arguments for the fidelity thesis. They are arguments for an obligation to obey or comply with law, and they have no genuine connection to Semantic Orginialism. That is to say, the arguments for fidelity to law proceed on the basis of a general account of law and general assumptions about the state of the law. They are arguments about obligations within a reasonably just state, not arguments about why those within the jurisdiction of the United States are obligated to obey the laws of the United States, they are not arguments about why one ought to obey the Constitution understood as original public meaning. Hence fidelity to law tells us nothing about whether the Supreme Court are under an obligation to render decisions which “comply with and [are] grounded on the semantic content of the Constitution.” That is a non sequitur, unless one adopts Solum’s particular fidelity thesis; but that thesis is not defended in the essay.
“Fidelity to law by Supreme Court Justices would require that their constitutional decisions both comply with and be grounded on the semantic content of the Constitution. Decisions that are inconsistent with the semantic content [of the Constitution] should be considered “out of bounds” and opinions that do not respect the legal force of the original meaning are illegitimate. These conclusions are qualified, however. One source of qualification is the doctrine of precedent or stare decisis. A second qualification is introduced by the possibility of constitutional evil: semantic content that would trigger the overriding reasons proviso that is a component of the ideal of fidelity to law.” (158).
This is a troubling paragraph. The conclusions set out just do not follow from the preceding three theses. They are considerably stronger than what can be drawn from the three theses and including the notion of fidelity to law. More directly, the presentation is not even fully in accord with what has been committed to. The conclusions should not be set out as they are – it is not that Solum has given reasons for these conclusions, which we might then modify or qualify in some ways. He just can’t get that far. The “qualifications”, for all the argument to date, may swallow the semantic content. Secondly, nothing at all about fidelity to law even suggests that departures from semantic content are “out of bounds” presumptively, defesably, or in any other way. Finally, we have nothing yet to tell us what “the legal force of the original meaning” is. It is therefore difficult to make out the sense of failing to respect the legal force. As the import of the paragraph is to strip certain Supreme Court decisions of legal force, to hold them illegitimate, one can and should ask for more.
Yes--this criticism seems absolutely correct to me & the next draft should certainly be modified to reflect it. What I should have said is that the fidelity thesis would provide a normative justification for adhering to the legal content contributed by the semantic content of the Constitution--whatever that may be. This error reflects two conflicting impulses: (1) to make the contribution thesis as neutral as possible, (2) to make a claim about "constraint" as the distinctly originalist form of the contribution thesis. My instinct at this point is to make this point explicit in the paper.
Posted by: Lawrence Solum | August 27, 2009 at 07:56 AM