Ciceronian Review

Hot Soup

Round four in the controversy over Nagel's recommendation of Signature in the Cell by S. Meyers.  In round three, Nagel says he thinks the book is one of the best of the year is wrong; because it reaches the conclusion that theism is right.  For Nagel, one can think that there is no evolving of life and not be a theist. 

"Doubts about reductive explanations of the origin of life also do not depend on theism." 

So life just appears but not because of a god.  What then?  Polytheism?  Or is he just trying to say that the work is not all done?  Poorly worded to express that thought.    

In the Sunday Times, God and evolution get reconciled yet again.  The science writer gives us a few words about his recent book arguing that there is an evolutionary foundation for religious belief.  Contra the title, which says there is a gene for belief in God.  The latter is simply ridiculous.  There is no way at all to get to a genetic foundation, i.e., reproductive advantage, for belief in God.  It is a common conflation - religion and Judeo-Christian monotheism.  Unfortunate as well.  Not only is the conflation intellectually indefensible, it is redolent of a culture myopia so severe as to disqualify anything further from the author.  Even adding in Islam leaves one with a silly view of history.  But Sunday's author is about religious belief, not monotheism.  He offers up a short story about how religious belief might convey some advantage.  It is an interesting thought, but seems not to go very far.  The evidence identified in the article has to do with other things -- an interest in getting high, advantages of high social cohesion.  But there is nothing there, nothing in the article to connect social cohesion with religious belief, or how the propensity to religious belief gets into the genes.  Where is the evidence that the religious survive better or in greater numbers than the non-religious?  That is not something that comes out of archeology.  Where are the examples of the non-religious societies succumbing to the religious?  Anyway, what is the religious here other than causal attributions and limitless magical thinking?  Is it magic that marks religious beliefs? 

In any event, the argument is very bad news for the current religious in this country, at least the folk in the Christian, Judaic, and Islamic traditions.  They all need a free will believing, not a genetic predisposition.  Not so convincing that there is free belief and faith if it is really all  in the genes.

Dworkin Again

The second piece in Dworkin's essay that annoyed me (annoyance is the right term - there is no theoretical point underlying I think) was in this paragraph:

So the decision marks yet another step in the conservative justices' campaign to ban the most effective means of reducing racial tension in our country. They want to eliminate all vestiges of race-sensitive measures designed to help end racial stratification. They outlawed sensible school assignment plans in Louisville and Seattle that used racial tests.^[10] They hope to overrule Justice Sandra Day O'Connor's Grutter^[11] and now they have all but neutered the disparate impact provisions of the Civil Rights Act. Yes, it would have been unfortunate for the white firefighters who had studied so hard to make them take a new and different test. Sotomayor's panel expressed sympathy for them. But it is also bad—for community harmony and effective municipal service—when a city with a 60 percent minority population fields a police or fire department with few or no minority officers.

Well it is nice that the panel expressed sympathy for them.  In Plessy the justices were nice too.  I don't much care.  I rather doubt it meant much to the firefighters that the panel felt a bit sad about telling them they were out of luck (because of their or someone else's race).  If it did, then I suppose the African American firefighters now are now comforted.  I wouldn't. 

I think the panel ruled correctly, given the law before them.  I found Sotomayor's explanations of her panel decision and en banc decision completely satisfactory.  The Supreme Court decision changed things.

I have difficulty seeing why the racial composition of a fire department is of great import to a community.  I find that story, a bit opaque.  Firemen do not regulate the populace, they do not have extensive interactions with the community.  Dworkin's argument here, a pretty consistent position for him, is ironic in the sense that he seems to have no sense at all of economic strata or the effects of economic position on one's life and experience.  It is just race and sex that count for him, not class.  That is a mistake.

Solum's Semantic Originalism - 12

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.

Solum's Semantic Originalism - 11

Solum draws out some normative implications from the “descriptive” theses – the fixation thesis and the contribution thesis.  Solum spends much less space on the normative implications, and so shall I.  Start with the Contribution thesis:  “the contribution thesis argues that the semantic content of the Constitution contributes to the content of the law.”  One could assent to this thesis without committing to much.  As Solum recognizes, it may be a very weak assertion.  All one commits to is the idea that the Constitution (presumably, but not necessarily, understood as the public meaning at adoption) makes a positive contribution to the law.  The Constitution is part of the law of the United States – that is all that it comes to.  One need not think that the original public meaning makes any large contribution – one might think that the original public meaning is a starting place but that what follows historically makes a greater contribution and, in fact, dominates original public meaning.  That is consistent with accepting the contribution thesis.  One can also accept the contribution thesis and reject the fixation and clause meaning theses.  But assume a commitment to all three; are there substantive implications?   

 

I am not sure that anything much follows from conjoining the three, just because the contribution thesis is so weak.  There is nothing in the concatenation, for example, that requires acceptance of the original public meaning as dominant.  Nothing in the three assertions tells us anything at all about the role of judicial decision-making, the import of cases, how practice is to affect or establish law.  One needs some additional exposition of commitments to determine what substantive work Semantic Originalism does in law.  The distinctions between constitutional interpretation and constitutional construction are not helpful in this particular instance because what those distinctions do is allocate or sort out areas of labor (so to speak).  The issue is the place of these (three) doctrines in the larger project, i.e., the Constitution as part of the law.  I think it is natural to assume that, if the three theses hold, then Constitutional law will be dominated by the original public understanding, that Semantic Originalism should be a powerful guide to Constitutional decision-making.  That possibility is a large part of the interest in Solum’s project.  But the natural assumption is not just not the only assumption, it is not implied by commitment to the three theses of fixation, clause meaning, and contribution. 

 

I am not saying that there is a mistake in Solum’s essay.  One cannot do everything in one place, after all.  But more to the point, I think Solum is well aware of these gaps and allows for the need for additional work on such topics.  I think the interesting implication is that there is a larger normative apparatus to be considered than may appear on the surface.  Solum starts the essay claiming that the fundamental elements of Semantic Orginalism are descriptive, not normative.  The talk about ‘fact of the matter’ as to meaning and the express disavowal of normative content should be accepted.  So to the claim that normative arguments should not trump the essentially descriptive claim of Semantic Orginalism.  All of that suggests that it may be an error to infer any normative implications from Semantic Originalism (at least, normative legal or political implications).  Thus, one can accept all of Solum’s argument to this point, and still not know whether it has any import for any legal or political or moral question.  Which, in turns, means that the “fidelity thesis” is more important than it seemed on first read, because the fidelity thesis is the road by which Semantic Originalism gets to the courthouse.

Solum's Semantic Originalism - 10

Solum draws out some normative implications from Semantic Orginalism in the final third of his essay.  Before turning to that material, I want to set out some conclusions about the first two theses.  The first, and most important, is that Solum is the first person to offer a plausible account of orginalism of any kind.  Solum’s is the first originalist theory that is serious.  This is an impressive accomplishment. 

 

Second, I do not think he has yet carried the day.  There remain areas in which his theory is open to question or seems to be incomplete.  There seem to be key pieces of the theory which are either assumed without argument or for which I find the argument unpersuasive.  One such key piece of the overall theory is the notion of “Constitutional utterance.”  Solum has very little to say in the way of explaining what such an utterance is, and why it should be understood as an utterance in the same sense as a bit of ordinary speech.  As the essay concedes, or perhaps better, assumes, a constitutional utterance is spread over years and a relatively large number and heterogeneous set of speakers.  It is not enough to stipulate the idea will be filled in at some later date.  It is at the center of the theory.  A significant part of the rhetorical persuasiveness of the theory lies in the analogy of determining meaning in ordinary speech with determining the meaning of some constitutional utterance.  Another area I think in need of development is the account of the contribution of context to meaning, and what it is that counts as context.  A final example – the argument all along is for semantic content, understood as conventional public meaning of the language, constitutes the meaning of the Constitution.  That is summed up, in part, by the “clause meaning” thesis.  But there is no argument at all for meaning to lie in clauses, rather than sentences or phrases or paragraphs or documents.  Semantic content need not come in clause packages; there are other ways of dividing up the ‘units.’  Constitutional practice may be tied to clauses, but that cannot be the basis for argument at this point in the essay.  Semantic orginialism has to come before Constitutional practice in the theory.  Certainly such a fundamental point as the unit of meaning can’t be a matter of special legal practice if semantic orginialism is suppose to be a theory of Constitutional meaning.  If that is the order, the originialism is unlikely to be worth the work of elaboration.  

 

But not everything can be done in one essay – maybe a book would have room for all the pieces, but maybe not even then.  So the first point again: a genuinely impressive accomplishment: the first originalist theory that is plausible.  

Solum's Semantic Originalism - 9

More about “clause meaning.”  Solum has a view that hypothetical utterances lack meaning.  For a fictive utterance, “there is no fact of the matter about what the utterance meant in context” because there is no context.  (100)  This is very difficult to grasp.  Fictive utterance do have contexts and do have meanings.  If they didn’t we would not be reading novels.  There are facts of the matter as to the meaning of fictional statements or utterances, if there are facts of the matter about use of language.  Here are a couple of ways at this – one which Solum has already committed himself to.  Solum believes in possible world semantics, he says so early in the essay.  Possible world semantics is predicated in part on the view that there are truth values to statements about possible worlds, that statements false of this world are true of some other possible world.  I do not see how that could fail to entail fictive utterances have contexts (possible world in which uttered) and so there would be a fact of the matter in possible worlds in which the utterance was made.  A second way at the point: there does seem to be a fact of the matter for fictive utterances because that is a condition of natural language use.  It is a result of the fact that statements go awry and other statements are false.  They have to sufficient context for meaning in order for those things to happen.  The world of utterances is not divided into just two groups – the true and meaningless.  Here is a third way: read a novel. 

 

“The clause meaning thesis squarely occupies the excluded middle: it insists that clause meaning is bound by the publicly available context, and the whole of the constitutional text is indisputably part of that!”  But, that is accurate.  The clause thesis “is the assertion that the semantic content of the Constitution is its original public meaning.”  If the text of the Constitution is part of the context, how is the context distinguishable from the utterance?  What is the utterance if not the text?  Surely not someone reading the text aloud or silently.  Are we to suppose that there an utterance type: US Constitution?  Is that the object of interpretation?  Is that what is fixed at ratification?  Assuming there is no Form of the Constitution, how do we get the text hived off to context?  One would have to assume that if the text is just context, so to are the words as they occur to any and all sets of persons in whatever form uttered.  I find this passage puzzling, and in some ways misleading.  Solum devotes a good deal of effort to distinguishing the context of the Constitution from the semantic content of the Constitution.  The public meaning, or rather the conventional public meaning of the Constitution fixes its meaning.  That is the fixation thesis, isn’t it?  Yet when it comes to identifying what it is that the semantic content is the content of, we seem to be in the woods of context.  This is troubling because that is the road to holism, and holism is a sin here.  Holism ignores the clauses and the clauses are at the heart of Constitutional practice.  (I thought practice was supposed to be conditioned by the semantic content, not the other way around.)  Even so, we get here (108) a conclusion that has been lurking for a long time – the semantic content of the Constitution is a concatenation of the contents of the clauses comprising the Constitution.  The clause meaning thesis is not just “the assertion that the semantic content of the Constitution is its original public meaning,” it is also the assertion that semantic content is a matter of the content of clauses (within utterances) which are concatenated.  The argument for that is just the statement that the practice of legal interpretation of the Constitution typically proceeds by way of focusing on particular clauses of the Constitution. 

 

While Solum disposes of the idea that the Constitution could mean whatever a reader believes it to mean, he does not explain why it does mean the conventional public meaning, and for each period the public meaning of the period.  This is to go back to the problem of understanding the scope of ‘Constitutional utterance’ and how it gets fixed to a particular time and place.  In other words, what is wrong with understanding the semantic content of the Constitution to be the public meaning of the Constitution today, whenever that happens to be?

Solum's Semantic Originalism - 8

The next big topic in Solum’s essay is the distinction between Constitutional Construction and Constitutional Interpretation.  The distinction builds on the clause meaning thesis, and the fixation thesis, in the sense that construction and interpretation (as used by Solum) are necessary to get anything like a sensible reflection of constitutional practices, i.e., to get the project to a position where it could be seen as an effort to understand the Constitution.  That is a long-winded way to this point:  Given the clause meaning thesis, Solum must have some apparatus like construction/interpretation.  (I should note that it is one of the moves that some acquaintences find most attractive about Solum’s Originalism – it is the route by which to get to a morally acceptable legal order.)  Here is the distinction:

 

Constitutional Interpretation:  The activity of constitutional interpretation has as its object the recognition of the semantic content of the constitutional text.

Constitutional Construction:  The activity of constitutional construction has as its object the supplementation of the semantic context of the constitutional text based on the context of constitutional utterance.

 

So interpretation is limited to discovering the semantic content of the text (not the utterance?  Does the shift in terms mean anything here?  I suspect not, but worth considering), while construction is supplying additional content.  Construction fills gaps, resolves vagueness and ambiguity, contradiction, etc.  To get to outcome – applications – the interpretation will be inadequate and what is added is the construction.  As taxonomy, this seems fine; certainly not misleading.  But it does more than offer a descriptive taxonomy.  We can see this by looking at the overall progress of exposition.  We start with the account of meaning, i.e., clause meaning.  The Constitution just means the public meanings of the provisions of the Constitution.  That meaning is fixed at the time of adoption (or framing and ratification).  Interpretation of the Constitution is getting settled on the first two steps – working out what the fixed meaning is.  Stopping there leaves intact numerous practically significant problems.  That Constitution (the Constitution of the first two steps) is a moral disaster and leaves us with gigantic practical problems.  It cannot be enough for either the existing legal system or any most of us would be willing to accord legitimacy.  The additional limits and requirements, processes, etc., has to from somewhere, and that somewhere is Constitutional Construction. 

 

There is a gap here.  Solum believes that gap is filled by the observation about practicalities.  If the Constitution is vague on some issue, the issue will still have to be decided and that decision should be both guided and guiding (of later decisions).  Eminently reasonable way of thinking.  While reasonable, it is not exactly compelled.  One could just stop with interpretation, and, in effect, say that where interpretation does not resolve the issue it is not resolvable as a matter of the Constitution – do what you like, there is no law on the issue.  It is an unattractive option, but it is an option. More importantly, one needs a fuller explication of how construction comes to have status as Constitutional law.  One needs more because (1) the idea of construction does not fit easily with the fixation thesis, (2) it is necessary to understanding the contribution thesis (to come) if it has more than the barest content, and (3) it is necessary to understanding interpretation.  There is not a contradiction between construction and the fixation thesis, but they also are not natural companions.  It will be helpful to a final evaluation of the fixation thesis to have good grasp of how it stands in relation to substantive commitments which are fundamental.  It is necessary to get somehow from Solum’s Constitution of clause meaning and original public meaning to the neighborhood of federally enforced civil rights.  It is necessary to sorting out the role “context” ends up playing in the theory.  Solum suggests that interpretation of the public meaning in context resolves many or most ambiguities in the Constitution.  How is that supposed to work?  The consideration of context seems like importation of additional material to the semantic content.  Which aspects of the context are attended to and made use of is surely subject to normative analysis, there are surely criteria of some kind at work there.  Is it that there is a difference in kind, so the interpretation (with context) is somehow unlike construction?  That seems to me almost unbelievable.  It is very likely that there are only differences in degree under Solum’s theory.  To be honest, I suspect the only salient difference will turn out to be time, but that is just a suspicion.

 

A bit later, Solum says: “The currency of legal theory is truth.”  I wonder what the meaning of ‘truth’ is here. . . .   

Solum's Semantic Originalism - 7

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. 

Solum's Semantic Originalism - 6

 

(1)  “the fixation thesis is the claim that semantic content of the Constitution (the linguistic meaning of the Constitution) is fixed at the time of adoption.”  This is what makes Solum’s theory an originalist theory.  The clause meaning thesis is not tied to and does not support originalism in any interesting way.  The second thesis can be seen as a set of views about meaning or interpretation – conventionally fixed contents understood in context.  Whatever the disputes about how that gets more carefully formulated or how the aspects are weighed, it won’t establish that the meanings of the Constitution are fixed at a particular time.  So the nicely names fixation thesis.  The arguments for the fixation thesis are variants of, explanations and defenses of, the claim that the “Constitution of the United States is an utterance token: a text that was framed and ratified in a particular historical context.”  (59-60)  I do not think that the Constitution of the United States is an utterance token.  When I say “Karl Rove is a toad” there is an utterance token.  When the class lines up in the morning and recites the Pledge of Allegiance, there are 30 or 40 tokens uttered.  They each mean something, and one hopes the same something when said together.  But it is not right to say that the Pledge of Allegiance is an utterance token beyond or in addition to the recitations.  There is a first token, and lots of later ones, not all identical to the first.  I am doubtful that the Pledge of Allegiance (apart from the many recitations and publications) is a token at all in this context.  (Plainly it is a token of English expression, and a token of a variety of other abstract categories, but that it not to the point here at all.)

 

Consider this example.  Cervantes writing Don Quixote –  When was the semantic content fixed?  Is it as each chapter is completed, or is it each sentence?  If the book takes a good while to write, does it fix at the end?  Why the end and not in sections?  In other words, what exactly is the token whose meaning is being fixed?  To return to an earlier example, consider the liturgy of Catholic Church or the Bible.  Does each translation have a different semantic content, and each edition (setting aside errors)?  Does the third edition of Moby Dick have some different content than the 12^th edition?  That seems a little odd.  If meaning goes to each token, that seems to be a possibility, and, if it is, what makes the Constitution exempt?  Maybe the use of token here is different from what I expect, or I have misunderstood the use.

  

What the fixation thesis requires is an argument showing that the time at which meaning is fixed is Solum’s moment.  The notion of ‘Constitutional utterance’ is the key piece in his theory.  It is analogized to an ordinary speech, someone saying something or writing it down and handing it about.  Solum, naturally, builds the theory on analogy to ordinary conversation.  It is not obvious to me that the analogy holds.