Okay, so I know I said I wouldn't be blogging again until Monday, but I just came across Larry Solum's post responding to my post on what makes the Constitution law, and what its content consists in. Solum has persuaded me that I need to stop relying on hearsay reports of his views and read his article for myself. Fair enough, but for now I just want to narrow the scope of our disagreement.
Solum and I both endorse Hartian positivism. I say that the original 1789/1791 understanding of the Constitution could be important in 10,000 years if the people who accept the Constitution in 12,008 think that the original understanding is relevant. Solum says the same thing. He also notes, correctly, that my original post used both normative and descriptive language, although in the comments, I clarified that my main point was descriptive. I certainly can't give Solum a hard time for failing to read the comments on my blog post when I haven't read his article!
I'm tempted to say something further here about a purely linguistic theory of constitutional meaning, but only with the gigantic caveat that I must read Solum's full account first. Before doing so, all I'll say here is that I don't see how a good Hartian can have any priors about language. If, in 12,008, the practice of the relevant interpretive community (either judges or government officials or perhaps even the People more broadly, depending on how one reads Hart), is to regard the Constitution as law, and to regard the meaning of that law as changing over time rather than fixed, then a good Hartian soft positivist will have to say that the meaning of the Constitution changes over time. So if---in 12,008 or today---that is the practice, then what Solum calls "the fixation thesis" is false. The Constitution's meaning will not have been fixed.
From what I understand of Solum's argument, the workaround here is to say that the meaning is fixed, but that the fixed meaning itself is unclear over an important range of cases (although clear in some nontrivial number of cases). One difficulty I have with this claim is that I don't see how even it can be a linguistic theory rather than at least partly a theory of law. For example, if we have a social practice of treating ALL constitutional meaning as potentially up for grabs, then, as a legal matter, all constitutional meaning is potentially up for grabs, regardless of what one might think about language otherwise. Perhaps it's not plausible to say that we have (or ever will have) a practice of treating all constitutional meaning as potentially up for grabs, but if so, that's a fact about legal practice, not just language.
Quite possibly I'm missing some important piece of the argument. I'll read Solum and report back in a few weeks, after the end-of-Supreme-Court-Term excitement has died down.
Posted by Mike Dorf