Academic

A Minor Correction to Dorf's Characterization of the Contribution Thesis (with an update at the end)

By Lawrence Solum

Michael Dorf recently wrote:

Here is how Solum puts it in what he calls the "contribution thesis": "the semantic content of the United States Constitution makes some contribution to the content of American law."  Solum contrasts this very modest claim with what he calls an "extreme version" of the contribution thesis: "the semantic content of the constitution fully determines the content of constitutional law".

If we set the extreme version aside, then it becomes apparent that there are a range of such reasonable interpretations of the contribution thesis. For ease of discussion, we can call one such view, the moderate version of the contribution thesis. The moderate version is that the semantic content of the constitution has the force of law, and is part of ?the supreme Law of the land.?25 The Constitution itself says,

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.


When the Supremacy Clause refers to ?this Constitution,? what does it mean? The basic intuition behind the moderate version of the contribution thesis is that it is the meaning (in the semantic sense) of the constitution and not its typographical or syntactic form that provides a substantial and constraining portion of its legal content.

The Moderate Version of the Contribution Thesis: The semantic content (linguistic meaning of the constitutional text) forms a constraining part of the legal content of constitutional doctrine, but it can be supplemented (by constitutional construction) and may be subject to limited defeasibility conditions (e.g., extraordinary emergencies).

The Extreme Version of the Contribution Thesis:  The semantic content (linguistic meaning of the constitutional text) fully determines the legal content of constitutional doctrine.

My own view is closest to the moderate version, and I believe the moderate version is characteristic of contemporary originalism.  Very few theorists who self-identify as originalists would endorse the weak version.

Update: My thanks to Michael Dorf for the generous correction to his original post.

Full post as published by Legal Theory Blog on August 11, 2010 (boomark / email).