Solum's Semantic Originalism - 6

 

(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.”  This is what makes Solum’s theory an originalist theory.  The clause meaning thesis is not tied to and does not support originalism in any interesting way.  The second thesis can be seen as a set of views about meaning or interpretation – conventionally fixed contents understood in context.  Whatever the disputes about how that gets more carefully formulated or how the aspects are weighed, it won’t establish that the meanings of the Constitution are fixed at a particular time.  So the nicely names fixation thesis.  The arguments for the fixation thesis are variants of, explanations and defenses of, the claim that the “Constitution of the United States is an utterance token: a text that was framed and ratified in a particular historical context.”  (59-60)  I do not think that the Constitution of the United States is an utterance token.  When I say “Karl Rove is a toad” there is an utterance token.  When the class lines up in the morning and recites the Pledge of Allegiance, there are 30 or 40 tokens uttered.  They each mean something, and one hopes the same something when said together.  But it is not right to say that the Pledge of Allegiance is an utterance token beyond or in addition to the recitations.  There is a first token, and lots of later ones, not all identical to the first.  I am doubtful that the Pledge of Allegiance (apart from the many recitations and publications) is a token at all in this context.  (Plainly it is a token of English expression, and a token of a variety of other abstract categories, but that it not to the point here at all.)

 

Consider this example.  Cervantes writing Don Quixote –  When was the semantic content fixed?  Is it as each chapter is completed, or is it each sentence?  If the book takes a good while to write, does it fix at the end?  Why the end and not in sections?  In other words, what exactly is the token whose meaning is being fixed?  To return to an earlier example, consider the liturgy of Catholic Church or the Bible.  Does each translation have a different semantic content, and each edition (setting aside errors)?  Does the third edition of Moby Dick have some different content than the 12^th edition?  That seems a little odd.  If meaning goes to each token, that seems to be a possibility, and, if it is, what makes the Constitution exempt?  Maybe the use of token here is different from what I expect, or I have misunderstood the use.

  

What the fixation thesis requires is an argument showing that the time at which meaning is fixed is Solum’s moment.  The notion of ‘Constitutional utterance’ is the key piece in his theory.  It is analogized to an ordinary speech, someone saying something or writing it down and handing it about.  Solum, naturally, builds the theory on analogy to ordinary conversation.  It is not obvious to me that the analogy holds.