Another round on the fixation thesis. At 65-66 Solum addresses conventional semantic content distinct from applicative meaning, i.e., the application of the semantic content to events. (At least, I think that expresses the idea. Along the lines of applying a concept to activity, or falling under a description.) According to Solum resistance to the fixation thesis may arise from two misunderstandings, one of which is confusion of “meaning in the semantic sense with meaning in the applicative sense.” The fixation thesis is that the semantic content is fixed at the time of constitutional utterance. “This point is fundamental to the New Originalism, which distinguishes between original public meaning and original expectations about application.” Fixed semantic meaning does not imply fixed application, according to Solum. What is going on here? I think what is at work is another analogic move. We are familiar enough in ordinary life with distinguishing between the meaning of a concept and how the concept is applied. To stick with something close to the Constitution, we can talk sensibly about how understanding of what is cruel changes over time. We can see that the law permitted whipping in 1802 and now does not because views about cruelty have changed. But it is supposed to be the same concept. (There are a bunch of problems about abstraction and the nature of concepts lurking here, but put them in a box.) Is it that the meaning of ‘cruel’ has not changed? For Solum the semantic content has not changed, but applicative meaning has. Two lines of argument apply here, which challenge Solum’s distinction and how it works in context.
First, it cannot be that the semantic content remains unchanged yet all the applications change. That makes no sense, and it cannot be a possible outcome for anyone who thinks semantic content is conventional, as Solum surely does. The point can be put in a number of ways. Let’s try this: what people do matters to determining what they understand an utterance to mean. As the utterance can have public meaning only in virtue of some function of the understandings of the relevant audience, that is the conduct of some given public in response to the utterance, there is no deep separation of “applicative meaning” from “semantic content.” In fact, I suspect that the public meaning ends up as a kind of convergence in understandings, and understandings have to tie down to applicative meaning. There is no floating cloud of public meaning – there is just the convention of interpretation or conduct in response to the utterances,
Second, I think the confusion or mistake here is a different from conflating applicative meaning and semantic content, and instead is along the lines of thinking that an utterance token is an utterance type. Semantic meaning (on Solum’s account) is new with each utterance; as a result, the semantic meaning of otherwise identical tokens will be different if sufficiently separated in time or place. That is not a result of changed in applicative meaning distinguished from semantic content; it is a change in semantic content. On his own account, a constitution adopted today with a clause barring cruel punishment has a different semantic content (different public meaning) than one adopted 500 years ago.
The second misunderstanding conflates semantic content with legal content. Legal content is addressed by the contribution thesis, of course, not the fixation thesis. Rejection of fixed legal content should not count against fixation of semantic content. This is interesting. It is clear that the fixation thesis entails (or at least implies) commitments about legal content, for Solum and every other law school originalist. Why then can’t the implications count against the fixation thesis? There is nothing unusual in seeing the implications of the claim as constituting grounds for rejection or acceptance of the claim. So too here.