[Wittrs] Re: What is "Originalism" [Larry Solum's View]
- From: Lawrence Solum <lsolum@xxxxxxxxx>
- To: Sean Wilson <whoooo26505@xxxxxxxxx>
- Date: Sun, 2 May 2010 20:47:59 -0500
Once again, I appreciate Sean's remarks. Of course, the phrase "public
meaning" is used by constitutionalist theorists, not philosophers of
language. But the idea, as opposed to the terminology, is well known in the
philosophy of language. So I suggest that we understand the phrase "public
meaning" as expressing the same idea as "conventional semantic meaning."
That phrase is widely used in the philosophy of language: even a casual
search will reveal hundreds of examples.
The notion that the meaning of both utterance tokens and utterance types can
be fixed is shared by a variety of approaches to the philosophy of language,
including the now-dominant "new theory of reference," pioneered by Kripke
and Putnam. Originalism requires only the notion that the meaning of a
particular utterance token (the text of a provision of the Constitution that
was ratified) can be fixed by linguistic facts (and by other facts as well)
at the time of utterance. This is perfectly consistent with the fact that
words change meaning over time--indeed, that fact motivates originalism.
Moreover, the position that Sean takes is mostly (perhaps completely)
consistent with the claim for which I have been arguing. Here writes:
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.
Applications can change, while the linguistic meaning remains the same. The
"sense of the idea" (to use Sean's phrase) is the same.
I sense that Sean and I may be reaching dialectical impasse, but, as always,
I have learned from his remarks.
On Sun, May 2, 2010 at 8:07 PM, Sean Wilson <whoooo26505@xxxxxxxxx> wrote:
> 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.
>
>
>
> _______________________________________________
> To post, send message to Conlawprof@xxxxxxxxxxxxxx
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as
> private. Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
--
Lawrence Solum
John E. Cribbet Professor of Law, & Professor of Philosophy
Co-Director, Program in Law and Philosophy
Co-Director, Program in Constitutional Theory, History and Law
University of Illinois College of Law
504 East Pennsylvania Avenue
Champaign, IL 61820-6909
lsolum@xxxxxxxxx or lsolum@xxxxxxxxxxxx
--
http://lsolum.typepad.com/legaltheory/
(blog)
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=327316
(ssrn page)
http://home.law.uiuc.edu/~lsolum/
(personal home page)
http://www.law.uiuc.edu/faculty/DirectoryResult.asp?Name=Solum,+Lawrence
(homepage at the University of Illinois College of Law)
http://www.phil.uiuc.edu/faculty/list/Solum/index.htm
(homepage at the University of Illinois Department of Philosophy)
http://www.pbase.com/lsolum/root
(photography galleries)
Assistant: Amy Fitzgerald
(217) 333-9115 / amfitzge@xxxxxxxxxxxx
Other related posts:
