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.
Recent Comments