[Wittrs] The New Originalism, Online
- From: Sean Wilson <whoooo26505@xxxxxxxxx>
- To: "LAWCOURT-L@xxxxxxx" <LAWCOURT-L@xxxxxxx>, "conlawprof@xxxxxxxxxxxxxx" <conlawprof@xxxxxxxxxxxxxx>, "Philscimind@xxxxxxxxxxxxxxxxxxx" <Philscimind@xxxxxxxxxxxxxxxxxxx>, "bistro@xxxxxxxxxxxxxxxxxxx" <bistro@xxxxxxxxxxxxxxxxxxx>, Wittgenstein's Aftermath <wittrs@xxxxxxxxxxxxxxxxxxx>
- Date: Thu, 7 Mar 2013 17:34:41 -0800 (PST)
... I just wanted to mention that I've got some lectures up about the new
originalism (with slides). Click the picture to see the slide or click "Full
Size" to hear it talk.
http://ludwig.squarespace.com/howcon8
One of the things that I think is key in this area is not letting these people
have their language. It's a blatant lie (orthodoxy) to tell students that old
originalism is about "framer intent" and new originalism is about "original
meaning." What must be taught, instead, is that this is merely a way of
speaking -- and a contrived one at that. Truth is, "new originalism" amounts to
four simple (and confused) philosophic positions:
1. That classical legal thought should be re-imposed ("original methods
originalism")
2. That the Constitution is really a toast to an old society (hegemony)
3. That plain language harbors fixed substantive content (misinformation)
4. That the Private Language Thesis is true.
Note that 3 and 4 are terrible dogmas about language. I couldn't believe my
eyes when I saw Stanley Fish, Keith Whittington and Larry Alexander endorsing a
private language thesis. And Whittington did so under the strange belief that
Wittgenstein supported him (?), something that became a terrible falsehood in
some circles, as evidenced by John O'Neil's 2005 book (p. 195). How these
scholars came to see Wittgenstein as believing that language meaning was
ultimately the secret intention of an author who gave life to barren marks, I
will never understand. It was always culture (a learned orientation) that gave
life to marks. Anyway, that has to go down as one of the worst intellectual
mistakes ever made by a an entire community of scholars (proponents) for well
over a decade.
And so, what we have here are two very false claims about language, and two
other claims (1 and 2 above) that are so "out there" as to be horribly
incongruent with current orientations. Please don't tell your kids that the new
originalism is about an "original meaning." Tell them the truth: it's about 4
terrible theses about language and jurisprudence.
Regards and thanks.
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
My New Book: http://flexibleconstitution.squarespace.com/
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