More about “clause meaning.” Solum has a view that hypothetical utterances lack meaning. For a fictive utterance, “there is no fact of the matter about what the utterance meant in context” because there is no context. (100) This is very difficult to grasp. Fictive utterance do have contexts and do have meanings. If they didn’t we would not be reading novels. There are facts of the matter as to the meaning of fictional statements or utterances, if there are facts of the matter about use of language. Here are a couple of ways at this – one which Solum has already committed himself to. Solum believes in possible world semantics, he says so early in the essay. Possible world semantics is predicated in part on the view that there are truth values to statements about possible worlds, that statements false of this world are true of some other possible world. I do not see how that could fail to entail fictive utterances have contexts (possible world in which uttered) and so there would be a fact of the matter in possible worlds in which the utterance was made. A second way at the point: there does seem to be a fact of the matter for fictive utterances because that is a condition of natural language use. It is a result of the fact that statements go awry and other statements are false. They have to sufficient context for meaning in order for those things to happen. The world of utterances is not divided into just two groups – the true and meaningless. Here is a third way: read a novel.
“The clause meaning thesis squarely occupies the excluded middle: it insists that clause meaning is bound by the publicly available context, and the whole of the constitutional text is indisputably part of that!” But, that is accurate. The clause thesis “is the assertion that the semantic content of the Constitution is its original public meaning.” If the text of the Constitution is part of the context, how is the context distinguishable from the utterance? What is the utterance if not the text? Surely not someone reading the text aloud or silently. Are we to suppose that there an utterance type: US Constitution? Is that the object of interpretation? Is that what is fixed at ratification? Assuming there is no Form of the Constitution, how do we get the text hived off to context? One would have to assume that if the text is just context, so to are the words as they occur to any and all sets of persons in whatever form uttered. I find this passage puzzling, and in some ways misleading. Solum devotes a good deal of effort to distinguishing the context of the Constitution from the semantic content of the Constitution. The public meaning, or rather the conventional public meaning of the Constitution fixes its meaning. That is the fixation thesis, isn’t it? Yet when it comes to identifying what it is that the semantic content is the content of, we seem to be in the woods of context. This is troubling because that is the road to holism, and holism is a sin here. Holism ignores the clauses and the clauses are at the heart of Constitutional practice. (I thought practice was supposed to be conditioned by the semantic content, not the other way around.) Even so, we get here (108) a conclusion that has been lurking for a long time – the semantic content of the Constitution is a concatenation of the contents of the clauses comprising the Constitution. The clause meaning thesis is not just “the assertion that the semantic content of the Constitution is its original public meaning,” it is also the assertion that semantic content is a matter of the content of clauses (within utterances) which are concatenated. The argument for that is just the statement that the practice of legal interpretation of the Constitution typically proceeds by way of focusing on particular clauses of the Constitution.
While Solum disposes of the idea that the Constitution could mean whatever a reader believes it to mean, he does not explain why it does mean the conventional public meaning, and for each period the public meaning of the period. This is to go back to the problem of understanding the scope of ‘Constitutional utterance’ and how it gets fixed to a particular time and place. In other words, what is wrong with understanding the semantic content of the Constitution to be the public meaning of the Constitution today, whenever that happens to be?
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