Ciceronian Review

Solum's Semantic Originalism - 4

Solum’s view is that there is a meaning – a semantic content – of the Constitution, and, I think, of every utterance; at least every legal utterance.  That seems to be an import of the view that there is fact of the matter about the semantic content.  Set to one side the historical focus of his essay for the moment.  What he is committed to is the view that, for every utterance now there is a (i.e., single) semantic content, and it is a matter of fact what that semantic content is.  Solum also seems to be saying, that notwithstanding that semantic content is public meaning, and that every statement has a semantic content, we can still not know what that meaning is.  (Look at 37.)  His example is one of losing access by virtue of passing time, but there is no reason not to see the possibility as perfectly general.  Of course, one can misspeak and so say what one did not intend, but that is not part of this story.  Here it is that the statement has a semantic content – there is one ideal sentence stating the content is one way to express the idea.  I suppose we could make room for ambiguity by making the sentence conjunctive (or disjunctive, I suppose, but that is not quite right I think – ambiguity is multiple meanings and if there is one content it has to be conjunctive in some way).  And vagueness, I am not sure just at the moment how one gets that in – that seems more about application which Solum puts outside the semantic content.  The point is that for contemporary utterances, there is a knowable fact of the matter.  Indeed, it should be something stronger than knowable.  Given the structure, the semantic content is always contemporaneously known and definite (to the extent there is content – I don’t know what nonsense expressions do here, if anything).  Is that right?

 

If the meaning is a matter of fact, and that fact is convention of understanding of a statement, then the fact is about the convention.  So there will be an account of linguistic convention somewhere – it does not need to be in the essay, just at hand so to speak.  Are there natural conventions which yield this sort of fact talk?  The thing about conventions is that there are rarely definite edges to conventions.  Especially when application is not part of the convention, understanding convention is a hard problem.  Conventions are, usually, practices, things done, patterns, and the like.  Most conventions, I suspect (never having tried to count them and not knowing of anyone who has every done a taxonomy) are not at all definite.  Consider clothing customs.  In other words, in many kinds of cases involving conventions, it is not clear that there is a matter of fact as to whether particular events are inside or outside the convention.  That is probably fine for Solum if the inability to locate is quite limited, and relatively easy to identify.  May be one can put the whole structure into place even when dealing with ranges, provided they are limited and somehow hold together organically.  (A sort of moderate Quinean view – we do communicate so it can’t be that just anything will work for meaning.)  

I suppose what I am harping on here is the difficulty of separating semantic content from context.  I don't really understand how convention can be separated from context, and that seems to be a predicate of the theory.  The existence of a convention may be a fact in some way separate from the meaning or content of the convention, but the convention is not neutral.  The fact of a convention is normative, albeit weakly.

Solum's Semantic Originalism - 3

Solum believes that the Constitution should be treated as a natural language utterance, its meaning fixed by the semantic content and context at the time of utterance.  The original meaning of a provision of the Constitution “is a function of the original public meaning (or ‘conventional semantic meaning’) of a given constitutional provision at the time the provision was framed and ratified.  Once again, meaning is fixed by the general pattern of usage at the time of constitutional utterance.”  P. 4. 

 

Fixation “at the time of origin is crucial for popular sovereignty justifications which require that the meaning of the Constitution be fixed by the semantic content of the document that was ratified by democratically legitimate procedures.  Likewise, fixation at the time of origin is crucial for rule of law theories that require fixation of content in order to ensure the predictability, certainty, and stability of Constitutional rules.”  P.4

 

Re clause meaning thesis: Semantic content of the Constitution is given by the original public meaning of the Constitutional provisions.  “In other words, under normal conditions successful constitutional communication requires reliance by the drafters, ratifiers, and interpreters on the original public meaning of the words and phrases.”  P. 5.  

 

“The semantic content of the Constitution of 1789 was fixed at that time because of the way that communications through language works, and not because it is a good idea to interpret the Constitution that way. “  P.8. 

 

What Solum seems to have in mind is a picture of natural language as consisting of two essential pieces, a conventional public meaning and a context of utterance.  The first part is the “meaning fixed by the general pattern of usage at the time,” I think.  (This sort of talk is not consistent with the later division between application and meaning.  I will come back to this.  If there is a general pattern of usage, there is an expected range of application.  And that range of application can’t be separated in any very useful sense from the usage or meaning.  It is not the case that the general pattern of usage could be independent of application of terms or phrases or whatever unit of meaning one applies.  In fact, it is a little unclear how meaning in the sense Solum seems to be considering it here gets away from application at all – what is the pattern if not application?)  Does language work in the way Solum suggests, i.e., the content of the Constitution is fixed at 1789 because that is the way communication through language works?  I have doubts.  In the first place, I am doubtful that there is “the way communication through language works” – that is, I am doubtful about there being “the way”.  Communication through language happens in a variety of ways, unless communication through language is being defined in some extremely narrow fashion.  Metaphor, fiction, a variety of means of religious communications, tones, etc.  I don’t think that sort of thing is accounted for by supposing there is a single semantic content to each expression at each time.  The model at work in Solum’s essay works pretty well for what might be called, roughly, reporting activities.  (But it does mean that Kipkean accounts of reference are remote from communication through language; that is fine with me.  I note this just to remind that there are links to other things.)  Utterances about the weather are not like utterances about the will of Baal after all.  Maybe we do not need such taxonomies, but I would like to know why.  The Constitution, considered as an utterance, is not about anything in the normal sense.  It creates something, if certain other things happen.  I do not see why we should think its meanings are not tied up in that process and the nature of or purpose of that set of activities.  

Which ties back to something I was trying to get at in a previous post – I think more is needed to make out that the Constitution is an utterance.  It does not look like one – it is not by anyone and it is spread out over a couple of hundred years.  We could just understand utterance to encompass such a document.  Still, who made it?  The smooth transition from discussion of a person making utterances to the Constitutional utterance is a bit mysterious.  I do not get into arguments with myself about what I meant when I said “Karl Rove is a toad.”  (A statement whose meaning is not its semantic content.)  Yet there is nothing at all odd about people having arguments about the meaning of document they jointly created, let alone one they came on later.  I suppose one could point to vagueness or ambiguity, but they are unlikely to do the necessary work.  The language is not more vague because jointly adopted or uttered, so if that was the explanation would I not have arguments with myself about what I meant when I said something or other?  (My meaning has to tie to the public understanding.) 

So, again, what is the utterance here?  Is it each phrase, the document as a whole, etc.?  Is amendment utterance of the Amendment or of the whole?

Here is another way at the set of points I am trying to make:  Solum says:  “In other words, under normal conditions successful constitutional communication requires reliance by the drafters, ratifiers, and interpreters on the original public meaning of the words and phrases.”  That sentence may be granted (it looks right to me), but it has very little relevance to whether the meaning of the Constitution is fixed in 1789.  All that really says is that, in order to communicate, human beings need a shared language.  Their reliance on ordinary meaning says nothing much about whether the document’s meaning is dipped in amber.  Anyone reading the Bible can see that, or Beowulf.  Or, consider the phrase “normal conditions [for] successful constitutional communication.”  That is not conditions of ordinary communication, sitting in a bar.  If it was the same, what is the point of  ”constitutional communication”?  I don’t think this can be laid off to “context” amplifying or altering semantic content. 

Solum's Semantic Originalism - 2

A minor corrections – I am working from the November 2008 version, not July.

 

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 I think.  At least, if the Constitution makes no contribution to law, many fewer people will be interested in what it means, or if it means.  In context, the thesis seems largely benign.  [But not entirely.  There are projects in legal theory in which the relationship between a text, like the Constitution, to a body of conduct is at issue.  But such folk are not going to spend time worrying about the semantic content of the Constitution.] 

 

Back to the contribution thesis:  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.  [Having finished the last 30 pages, it turns out there is something interesting going on in the proposed relationship between the contribution thesis and the fidelity thesis.  It appears that part of the normative implications drawn by Solum are grounded in a set of relations between the two theses.  This is not entirely consistent with the introductory sections which seem to disclaim normative content to Semantic Originalism.  Maybe those statements are intended to be confined to just the first three theses and not include fidelity, but that is not how it reads to me.  Either way, it should be troubling that the first three theses have no normative import but normative claims are derivable from them later.  I nee to think a bit more about this set of issues.] 

The immediate tendency is to turn to the fidelity thesis as the center of controversy.  That is where the usual set of political arguments lay.  May be, but I think there are issues to explore with respect to the first two theses – fixation and clause meaning.  And, as the discussion of the fidelity thesis is much sketchier than the rest, it is best to leave it until later.

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 (and his ilk) to interpreting (or understanding) the US Constitution. 

 

Solum holds that, under the fixation thesis, the meaning or semantic content of a given Constitutional provision is fixed at the time the provision is framed and ratified.  P. 2.  Solum acknowledges that this “period may be extended over many years.”  Nt. 3.  Let’s stop here for a moment, admire the birds.  This phrase, “fixed at the time the provision is framed and ratified” is repeated often and throughout, as it should be.  It is key point, for several different reasons.  It is key to making out semantic content under the approach to language Solum works with.  It is key to making out the later arguments concerning fidelity.  It is key to the interpretation of the contribution thesis and the normative suggestions made late in the paper.  What does it “at the time it is framed and ratified” mean, and why is that condition adopted?  (I will come back to the philosophy of language story tomorrow, but there are some additional questions about this particular phrase that can be put independently, I think, of the encounter with utterances to come.)  It is not that “framed and ratified” is a transparent phrase, particularly as the phrase appears in this context to presuppose the material it is meant to help explain.  What is it to “frame” a constitution or a provision of a constitution?  Is that writing it down?  Somebody special writing it down?  Is that knowable at the time, or is the framing something we really only discern after the fact?  Or is framing both the writing down and the talking about the material, in advance of some formal proposing of the language for adoption?  (By whom?)   Is this process – frame and ratify - the legal process?  And who exactly does these things?  In starting on this line I see that the points tie to the discussion of language, utterances and the like.  So pick them up again with the background.