[Wittrs] Re: What is "Originalism" [Larry Solum's View]
- From: Sean Wilson <whoooo26505@xxxxxxxxx>
- To: conlawprof@xxxxxxxxxxxxxx, wittrsamr@xxxxxxxxxxxxx
- Date: Sun, 2 May 2010 18:07:48 -0700 (PDT)
Hi Larry.
Once again, I appreciate your input. Regarding your last mail, just a few more
remarks.
1. I'm not aware of a theory in language that says there is such a thing as
a "public meaning" (then or now). If you would use this expression today --
e.g., "the public meaning of happiness" -- it would sound rather problematic.
What this idea appears to advocate is the view that Bertrand Russell once
espoused: that the meaning of a word is what a community would reasonably think
it to be. All you've done is roped off the community over time. In so doing,
you are setting forth two a priori (or statist) criteria for what a word means:
(a) majority preference (or something like that); and (b) of these certain
people, X, at this discreet point in time, Y.
I don't know of any linguist or philosopher that could support this criteria of
meaning. That's why I am highly skeptical that your account of originalism has
anything at all to do with language.
Consider for a moment what Wittgenstein does to a view like this. He showed us
that any "statist" account of language was problematic. The reason was
simple: meaning was out of our hands. If something is INTELLIGIBLE in language,
it has meaning. What this says is that language is a free market. If I can use
any expression that successfully "makes a trade" in the marketplace, the
expression has the "cash value" in that market that it does. You can never take
away or void successful trades in the language marketplace on the grounds
that pre-existing criteria have been violated, or that the trade in the
expression is less popular. Another way of saying this is that language is a
behavior. (It's like dance).
2. If the above is correct, there is no such thing as a "public meaning" which
we would treat as an orthodox understanding for language. Instead, there are
things like senses, connotation, idiom, family resemblance, archetypes,
prototypes, extensions, convenient boundaries and polysemy. For example, one
would never speak today of the public meaning of "lunch" or of "chair."
Instead, we might speak of the cultural behaviors that are popular to exemplify
these ideas (versus the past).
And what is critical is that, although the popular behaviors that exemplify
"lunch" and "chair" today are DIFFERENT from 1787, there is no indication that
even the sense of the idea is any different. And if it works like this for
"lunch" and "chair," it seems to work the same way for "equal protection,"
"privileges and immunities," "liberty," and so forth. Each epoch can have
a different cultural regimentation for the same ballpark idea. You are not
violating the language meaning by choosing an example different from the first
generation, so long as they could understand your use of the idea in question.
And you will note that the cure for all of these things -- both in language and
law -- is to use rigid nomenclature. The more rigid the semantics, the less
likely the trade in the expression will have additional "sense" or examples.
And so that may be what it all boils down to. Just as intentions do not
secretly pass into law when the "ayes have it," so too are the popular protocol
of the expressions not themselves codified. For they are only examples (for
which others are possible). We understand this without controversy when dealing
with statutes, so it is not clear to me why constitutions are different --
especially if all this is predicated upon a proper account of language.
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
________________________________
From: Lawrence Solum <lsolum@xxxxxxxxx>
To: Sean Wilson <whoooo26505@xxxxxxxxx>
Cc: conlawprof@xxxxxxxxxxxxxx; wittrsamr@xxxxxxxxxxxxx
Sent: Sun, May 2, 2010 5:07:44 PM
Subject: Re: What is "Originalism" [Larry Solum's View]
Once again, thank you to Sean Wilson for his very thoughtful comments, which
again deserve a far more thorough reply than I can provide on this occasion.
Ultimately, nothing hangs on the name we give a theory. Contemporary
originalism (the so-called "New Originalism" or "Original Public Meaning
Originalism") focuses on the original public meaning of each provision of the
constitutional text. My claim (which Sean disputes) is that the "original
public meaning" is the conventional semantic meaning as fixed by linguistic
facts as they stood at the time each provision was framed and ratified. So far
as I can tell, a generalized version of this claim (which accounts of the
differences between "original intentions of the framers," "original
understandings of the ratifiers," and "original public meaning" is one of two
focal points of the theorists who self identify as "originalist." The second
characteristic claim is that constitutional practice should be defeasibly
constrained by that original meaning of the text.
For this reason, I believe that the coined word "originalism" is now generally
understood to refer to views that affirm these two theses (fixation and
constraint). And therefore, I believe that my usage of the term "originalism"
is a fair one.
So when Sean writes,
It seems to me that for one to truly become "originalist," one must leave
linguistics altogether. That's the whole point, isn't it? That we cannot take
the meaning of the words in the Constitution as "their meaning," we must delve
into history and time in order to find the behavior and lives of dead people so
that we can pretend that ordinary words have fixed objects. We do this not
under warrant of any theory of language, but because this communion with Noah
is said to be what "law is."
>
>I must respectfully disagree. The whole idea of the New Originalism as I
>understand it, is to reject the equation of original meaning with original
>expected applications, and to move instead to the linguistic meaning or
>semantic content of the text. Originalism is not about "fixed objects" or
>"fixed applications," it is about the constraining force of fixed semantic
>content.
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