The fixation thesis: the role of historical fact in original meaning.

• Author: Solum, Lawrence B.
• Position: III. Clarifications and Objections A. Clarifying the Fixation Thesis 2. Fixation of Expression-Token Meaning, Not Expression-Type Meaning c. The Type-Meaning Fallacy through Conclusion, with footnotes, p. 39-78

3. The Type-Meaning Fallacy

   At this point, we have laid out the type-token distinction and related that distinction to the Fixation Thesis. We are now in a position to understand how a certain kind of argument against the Fixation Thesis is based on a mistake, in particular, a confusion between types and tokens. We can call this mistake the "Type-Meaning Fallacy."

   Let's approach the fallacy in stages. We can begin with an argument based on a very simple thought experiment. Here is a statement of the argument:

   We can imagine that the United States Constitution or parts of it were written today for the first time. If the Constitution were written today, it would not have the same meaning as does the actual Constitution, written at various times starting in 1787. From this fact, it follows that meanings can change over time, and therefore the Fixation Thesis is false. Perhaps this argument is not even superficially appealing. It is clearly based on a fallacy. The meaning of the constitutional text token written in 1787 does not change in the hypothetical; it is a new token of the same type of text that has a different meaning. But the Fixation Thesis does not claim that different tokens of the same type cannot have different meanings. So the thought experiment does not show that the Fixation Thesis is false.

   Here is a slightly different and more sophisticated version of the argument of the thought experiment. Let's call this version the "Contemporary Meaning Argument." The argument proceeds as follows:

   When we use constitutional language today, we understand the meaning of that language as it is used today. Contemporary usage is influenced by Supreme Court opinions and popular beliefs about the meaning of phrases like "freedom of speech," "equal protection," and "unreasonable search." The contemporary conventional semantic meanings of the words and phrases that make up the constitutional text system change over time. Therefore, the communicative content of the constitutional text is not fixed. Moreover, we have good reason to give these contemporary meanings legal authority. It is this contemporary meaning that is endorsed by "We the People" today, and popular sovereignty vests in the contemporary polity--not the dead hands of "They the People of 1787" or "They the People of 1865." Therefore, the Fixation Thesis is false. The meaning of the Constitution of the United States changes to reflect the changing beliefs, values, and linguistic practices of the American People. The Contemporary Meaning Argument may seem appealing (or not), but it does not refute the Fixation Thesis. That thesis is about expression tokens, not expression types. To the extent that the argument based on evolving linguistic practice is presented as a refutation of the Fixation Thesis, it commits the Type-Meaning Fallacy.

   The Contemporary Meaning Argument can be reformulated so as to avoid the fallacy. The reformulation can begin by conceding that the Fixation Thesis is true. The reformulated version then switches its target to the Constraint Principle. The argument then becomes that the original meaning should not constrain contemporary practice and that constitutional changes are legitimate so long as they are reflected in the contemporary meaning of the corresponding constitutional text tokens--that is, contemporary uses of the phrases that also appear in the original version. A fully specified version of this theory of legitimate constitutional change will need to provide an account of what makes these changes legitimate. Presumably, the argument for legitimacy based on contemporary meaning will not be that the Supreme Court can make any change it wants--so long as the change succeeds in altering linguistic practices so that the conventional understanding of the constitutional text is altered.

   The revised version of the Contemporary Meaning Argument would run into severe difficulties: those problems will be explored in depth below. (105) For now, the important point is that the plausibility of the revised version of the Contemporary Meaning Argument is actually beside the point so far as this Article is concerned, because the revised version of the argument leaves the Fixation Thesis untouched. The revised Contemporary Meaning Argument does not claim that the meaning of the original token is not fixed; it does claim that the communicative content of the original Constitution should not constrain contemporary constitutional practice--in other words, the argument is directed at the Constraint Principle.

   3. Fixation of Meaning, Not Determinacy of Meaning

      Legal texts can be more or less determinate in application. This truism can be expressed in a variety of ways. One helpful distinction is between "determinacy," "indeterminacy," and "underdeterminacy." (106) We can say that a legal text is fully determinate with respect to a set of possible applications if the legal rule that corresponds to the text produces outcomes for all the applications in the set. We sometimes call such rules "bright-line rules," because they fully sort the cases to which they are applied. We can say that a legal text is completely indeterminate with respect to a set of possible applications if the rule corresponding to the text produces outcomes for none of the applications of the set. A rule of this kind would do no work at all--because any outcome is consistent with the rule. We can say that a legal text is underdeterminate with respect to an application set if the rule corresponding to the text produces outcomes for some but not all of the applications in the set. These are the rules captured by Hart's picture of the core and penumbra. (107)

      The Fixation Thesis claims that communicative content is fixed, not that it is fully determinate. Indeed, the Fixation Thesis makes no claim about determinacy at all: if the communicative content of the constitutional text were radically indeterminate, that would be consistent with the Fixation Thesis. As we shall see, many of the objections that might seem to apply to the Fixation Thesis are actually claims that the rules corresponding to particular parts of the constitutional text are underdeterminate. Arguments based on the concept-conception distinction and open texture might seem to threaten the Fixation Thesis, but on a closer look, they would show (if true) that the constitutional text is relatively less determinate (or relatively more underdeterminate) than it seems on first inspection.

      Finally, there is one important qualification of this clarification of the relationship between fixation and determinacy. If it were the case that the actual text of the Constitution was radically indeterminate, then, depending on how you look at things, we might say that the Fixation Thesis was irrelevant. For the purposes of this Article, we shall simply put that objection to the side. (108)

      We have now clarified, the Fixation Thesis in three ways. The claim is that communicative content (not legal content) is fixed. Moreover, the Fixation Thesis is a claim about particular tokens of the constitutional text. And finally, the Fixation Thesis is a claim about communicative content and not about determinacy of the legal rules that correspond to that content.

      These clarifications tell us what would count as a real objection to the Fixation Thesis. For an objection to clash directly with fixation, it must: (1) be directed at communicative content (and not legal content), (2) be directed at the meaning of relevant tokens (the concrete particular version that is the officially promulgated text) and not contemporary tokens of the same type, and (3) be directed at fixation of meaning and not at determinacy of meaning.

      2. Answering Objections to the Fixation Thesis

      We are now in a position to consider four objections to the Fixation Thesis. Each objection is based on a distinctive account of meaning. The first objection relies on the concept-conception distinction. The second objection is based on the idea that legal concepts have essential structures; in its best form, the idea would be that the language of the Constitution refers to functional kinds that are analogous to natural kinds. The third objection draws on Wittgensteinian ideas about meaning, including the idea of family resemblance and the related notion of open texture. The fourth objection uses the idea of reader's meaning, arguing that readers' understandings of the communicative content changes over time.

   1. Concepts and Conceptions

      Let's begin with what I believe is the most common objection to the Fixation Thesis--an objection that deploys the concept-conception distinction, introduced above. (109) The argument is frequently made in the context of discussions of the Eighth Amendment, which provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (110)

      The objection zeroes in on the word "cruel" and paraphrases the Amendment as a prohibition of cruel punishments. The next move is to invoke the concept-conception distinction. The objection asserts that the word "cruel" invokes the general concept of cruelty and not a particular conception of cruelty. (111) This point can then be applied to the Fixation Thesis: the meaning of cruel is not fixed, the objection maintains, because our conception of cruelty changes over time. This point can then be generalized to other provisions of the Constitution: "equal protection," "due process," "freedom of speech," and so forth. Let us call the generalized objection, the "Concept-Conception Argument."

1. Understanding the Concept-Conception Argument

   Before we formulate an answer to the objection, we need to understand it. When the objection is made, the concept-conception distinction is rarely developed in depth and this may lead to mistakes about what the objection actually shows. So far as I know, the concept-conception distinction originates with Essentially...