[Wittrs] Re: On Originalism & Language
- From: "Christopher Green" <crgreen@xxxxxxxxxxx>
- To: <conlawprof@xxxxxxxxxxxxxx>, <wittrsamr@xxxxxxxxxxxxx>
- Date: Thu, 11 Feb 2010 14:36:46 -0600
We may have hashed this out sufficiently before, but I'll reply to a couple
of bits here.
"[L]aw is neither, and never has been, ... the vehicle of cultural
stagnation."
I'm not sure why not. If I'm right about what Article VI means, and you're
right that my constitutional theory entails Amish-like cultural stagnation,
then the Constitution is, sadly (or maybe happily), a vehicle of cultural
stagnation. It certainly has conservative elements, for better or worse.
"[T]he great majority of constitutional words are family resemblance ideas."
That's never seemed super plausible to me.
-----Original Message-----
From: conlawprof-bounces@xxxxxxxxxxxxxx
[mailto:conlawprof-bounces@xxxxxxxxxxxxxx] On Behalf Of Sean Wilson
Sent: Thursday, February 11, 2010 12:58 PM
To: conlawprof@xxxxxxxxxxxxxx; wittrsamr@xxxxxxxxxxxxx
Subject: On Originalism & Language
(Chris)
... the people who actually "bind" their progeny through time do so
with cultural practices like the Amish. Religious practices also "bind," and
usually do so through rituals of sacraments and so forth, not through
language. Drama and theater are behaviors that allows us to re-live the
psychology of other times. But law is neither, and never has been, theater,
religion, sacrament or the vehicle of cultural stagnation. Rather, it has
only ever been one thing: regulation through language. And if law is
language, the question of whether the framers can bind us is false. The only
question is in whether the language does. And because the great majority
of constitutional words are family resemblance ideas, how one complies with
them is only an EXAMPLE of compliance. Hence, subsequent generations can
surely comply with the language by electing a different EXAMPLE.
The rules for the language culture determine this, not the idolatry of the
past. See: http://ssrn.com/abstract=1405451
Regards and thanks
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860 Discussion Group:
http://seanwilson.org/wittgenstein.discussion.html
----- Original Message ----
From: Christopher Green <crgreen@xxxxxxxxxxx>
To: conlawprof@xxxxxxxxxxxxxx
Sent: Thu, February 11, 2010 11:46:45 AM
Subject: RE: Originalism
We've probably had this conversation before, but of course the Founders can
bind us, if they can convince us to take an oath to be "bound" by "this
Constitution," per Article VI. See http://ssrn.com/abstract=1227162. ; If my
op-ed today were somehow able to command the oaths of the denizens of 2240,
that'd do the trick, I think.
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