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.
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