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.
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