Again, my apologies, I am writing this with just minutes before I have to leave for the airport gate in Mexico City–so this post is quite rushed.
Check out Michael Dorf’s And Now for Something Completely the Same, commenting again on Semantic Originalism. Here is a taste:
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.
One minor correction and a comment. The minor correction: I do not endorse Hart’s version of positivism; rather I use it to illustrate legal positivism because it is the most widely known view. If I had to endorse a particular positivist theory it would be Scott Shapiro’s planning theory.
The commnet: Dorf misunderstands the relationship between the claim’s made by the fixation thesis and the contribution thesis. The fixation thesis is a claim about linguistic meaning (semantic content). H.L.A. Hart has no theory of linguistic meaning: he does have a theory of legal content. The portion of Semantic Originalism that addresses legal content is the contribution thesis. I don’t have time to even summarize the argument, but I will await, with interest, Dorf’s comments once he has read the paper.