I am most of the way through Larry Solum’s “Semantic
Originalism” (July 2, 2008 version). I thought
I would try to work out some of my concerns with the arguments here. Solum’s article is an elaboration and defense
of a view of originalism in Constitutional law and, I suppose, theory. I come into that project a skeptic, but Larry
is a smart guy, and this is a long-term project of his. Semantic Originalism starts off with a high probability
of being well-argued and interesting. Thus
far (I am at 128), it is.
It makes sense to try to articulate the concerns I am looking
for the essay to address. I think a
plausible theory has to generate a reasonable basis for political obligation. It has to account for, or at least allow for,
the deep social transformations in the United States over the last 200 years,
i.e., while the theory need not (and almost certainly cannot) replicate the
current status of what is legally legitimate, certain touchstones must be
accessible and legitimate. The revolution
of Black civil rights, for example. Or,
by way of another example, it must not exclude adjustment to economic and
technical transformations. A final point before turning to discussion of
the essay: I do not think that what is
in question is a theory of meaning for constitutions, nor of constitutional
law. There was a time when I thought so,
but over the years I have come to think such a view mistaken. There is, I think, a peculiar place for the
Constitution. In some ways, it is more
constitutive for the US than constitutions are typically. Of course, that is contestable claim, but it
is one that influences the discussions to come. In contrast, the long history leading to many
of the nations of Europe are not built around a document in ways
analogous. There is a sense of the
nation distinct from the history of the state. That is not nearly so strong here, I
think. (Of course, this may be myopia on
my part.)
Semantic Originalism is the following set of claim: “constitutional
law includes rules with content that are fixed by the original public meaning
of the text – the conventional semantic meaning of the words and phrases in
context.” This in turn is cashed out as
four theses:
(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.”
(2) “the clause
meaning thesis is the assertion that the semantic content of the Constitution
is its original public meaning.”
(3) “the contribution
thesis argues that the semantic content of the Constitution contributes to the
content of the law.”
(4) “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.” P.2
The contribution thesis is not controversial. The meaning of the Constitution contributes something
to the content of American law, even American constitutional law. I do not know how one could reject it and
still think one was discussing a theory of American law. While there may be something to say about it
later, I doubt there will be much. The immediate
tendency is to turn to the fidelity thesis as the center of controversy. May be, but I think there are issues to
explore with respect to the first two theses – fixation and clause meaning.
As a general matter, Solum’s approach is to take
well-developed analyses from the philosophy of language and apply that apparatus
to the Constitution. His Semantic
Originalism is an effort to apply insights and theory deriving from Grice to
interpreting (or understanding) the US Constitution.
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