When I said earlier that Solum had not explained constitutional communication or constitutional utterance, I was mistaken. I had forgotten about a footnote; in footnote 145 (page 41) he does say something about constitutional communication.
Constitutional communication is the process by which semantic content is communicated by a complex group of constitutional authors (roughly the framers and ratifiers) to a complex group of constitutional readers (the ratifiers are both readers and authors, the initial group of implementing official, citizens, future courts, future officials, and so forth). The possibility conditions for constitutional communication refers to those facts about the circumstances of constitutional utterance that enable constitutional communication. The argument of the paper is that one of the success conditions is the existence of “public meaning” or “conventional semantic meaning.”
This is very interesting. Presumably the essay is not an attempt to set out all of the “possibility conditions for constitutional communication” or to define the “circumstances of constitutional utterance.” That is a big subject and it would be unfair to expect it all in one short essay. That one of the success condition is the existence of conventional semantic meaning is not, despite what Solum says here, a reasonable way to understand the argument of the essay. Accepting Solum’s account of semantic content (which is distinct from context), his essay is really beside the point. What he would be saying is that it takes over a hundred pages to argue that a success condition for constitutional communication is the existence and use of a natural language. I think that follows immediately from the topic – constitutional communication entails people talking to one another. I think it more likely that what is aimed is an argument that (1) conventional semantic content is sharply distinguished from context, (2) that conventional semantic content has priority over context, etc., in understanding or interpreting the Constitution, (3) that the Constitution is a temporally well-defined utterance which has already occurred. I think that better reflects the flow of the argument. (There are other success conditions that make Solum’s discussion complicated enough to give me a headache, e.g., there have to authors, the authors have to have intentions, and so on, but that can be left to the side here.) Notice that there is a lot of work to be done (at some other time) on what makes the communication a “constitutional communication”. I don’t think that work will end up supporting Solum’s approach because, I think, what will result will breach the distinction he needs between the fixed conventional semantic content and both context and normative content. (Constitutional communication is not just communication involving use of the word, at least not as it generated Solum’s essay or the surrounding literature and communication.) I think trouble also lurks in the “future courts, future officials, and so forth.”
How did ratifiers get onto both sides of the communication? Do ratifiers add something to the conventional semantic content? That should not happen, as the conventional semantic content is fixed through the language used by the authors. Do the ratifiers change or establish the conventional semantic content by something they do? Their understandings? That does not look consistent with other arguments rejecting anything other than a fixed conventional content as semantic content.
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