[LMP] Re: Originalism in the American Law Professoriate

"Graber, Mark" <MGraber@xxxxxxxxxxxxxxxxx> · Wed, 29 Dec 2010 17:26:44 -0500

I suspect I agree with most of this.  There are substantial semantic, 
linguistic and philosophical debates among people on this list, many of whom 
have far more expertise on semantics, linguistics, and the philosophy of 
meaning than I do, so may langauge on this tends to be a bit vague and should 
not be interpred as taking a position in the semantic, linguistic and 
philosophical debates.  I think the materials from the framing period are 
useful for demonstrating what various people thought they were doing when they 
made certain langauge choice and what obversers at the time may have thought 
they were doing.  What one learns is that there were usually a range of things 
the framers might have been doing (or thought to be doing), with at most some 
possibilities at bit more probable than others.

________________________________________
From: conlawprof-bounces@xxxxxxxxxxxxxx [conlawprof-bounces@xxxxxxxxxxxxxx] On 
Behalf Of Sean Wilson [whoooo26505@xxxxxxxxx]
Sent: Wednesday, December 29, 2010 5:16 PM
To: conlawprof@xxxxxxxxxxxxxx
Cc: wittrsamr@xxxxxxxxxxxxx; metalaw@xxxxxxxxxxxxx
Subject: Originalism in the American Law Professoriate

(sent to conlawprof)

Our Lord Graber writes the following,

"I'll add teaching originalism is quite difficult given that most existing
textbooks, political science or otherwise, have very little that would inform
students on what constitutional language meant in 1789. The long overdue
Gillman, Graber, Whittington (we are hoping will be available by the end of
2011) will correct that, but I can say I am more confident this is long over due
than anything else."

One of the things that may be EXTREMELY helpful here is to let students see that
the phrase "what constitutional language meant in 1789" is no different in what
it DOES than the phrase, "what constitutional language meant in 2010." And so,
let's invent a new theory called "2010-ism," and ask our students to apply it.
We'd tell them that the key premise to the belief system is thus: "in 2010, the
constitution language's is its true meaning." However, this has two problems.
First, the language is of the ordinary kind, having family resemblance. And two,
there is no such thing as an annual meaning of "speech" or "equal protection."
There is only sense, family, polysemy, idiom, etc. -- and, as well, philosophies
about what speech or equality program one likes best.

Also, note that, even within 2010, there is no such thing as a "public meaning"
of any words, constitutional or not. Rather, there is something of an ordinary
sense (or two), the uses of which (surely) involve exemplars. But even this has
absolutely nothing to do with calendar annuals and everything to do with
underlying culture.

So, how do proponents of the philosophy preserve "the 2010 meaning of 'speech'"
when we can't even deploy that very idea free of defect? What do we do? It would
be a lie if we told our kids in 20 years: "This is what 'speech' meant in 2010,"
if we meant to say that other senses of it were not included or understood back
then. Or that the word could not facilitate them. The problem is that language
meaning is never statist or majoritarian. It's isn't up for a vote. It's a
marketplace: whatever trades would yield, they yield. (This is true even for
speakers across generations)

And so, the trouble boils down to this: by telling students that there is an
original meaning of X, where X is a family resemblance idea, you have only told
them the following. "The sense and protocol of X that is in regimentation during
year-Y is what it was." But we would never call this "originalism" more than we
would simply call it Coach Denny Green's View ("they are who we thought they
were.")  And if you tried to build this into a theory of jurisprudence, note how
curious the transformation becomes:

"the sense and protocol in regimentation during year-Y is ... WHAT? The best
meaning? WHY? The real law? WHO SAYS?

There is nothing that can come of the expression "the original meaning of
language" other than confusion and nonsense. If what you mean is archaic sense,
say that. If what you mean is a draftsmen or floor-speaking intention or
assumption, say that. If what you mean is a program of implementation, be sure
to tell is it is an example of the idea. But at all costs, keep us from the
confusions of the outside world rather than making the television and radio even
worse.

(P.S. Sent to Wittrs)

Regards and thanks.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860
New Discussion Groups! http://ludwig.squarespace.com/discussionfora/

----- Original Message ----
From: "Graber, Mark" <MGraber@xxxxxxxxxxxxxxxxx>
To: David Forte <david.forte@xxxxxxxxxxxxxxx>
Cc: "conlawprof@xxxxxxxxxxxxxx" <conlawprof@xxxxxxxxxxxxxx>
Sent: Wed, December 29, 2010 3:06:56 PM
Subject: RE: Originalism in the classroom

I have no clue what goes on in other classrooms other than to note that I
suspect most people do a brief explanation of what originalism is and students
read opinions such as Heller in which students make originalist arguments.

I'll add teaching originalism is quite difficult given that most existing
textbooks, political science or otherwise, have very little that would inform
students on what constitutional language meant in 1789.  The long overdue
Gillman, Graber, Whittington (we are hoping will be available by the end of
2011) will correct that, but I can say I am more confident this is long over due
than anything else.

I shoudl note, while I am engaged in self-promotion that the sections on the
colonial, revolutionary, and early America are complete and have lots of
originalist material (and I am quite literally completing the Civil War and
Reconstructions, including long excerpts from the debates over the 13-15
amendments this week.  Always happy for feedback if anyone is interested.

Back to the Fifteenth Amendment.

MAG

On Dec 29, 2010, at 2:16 PM, David Forte <david.forte@xxxxxxxxxxxxxxx> wrote:

> It is now 25 years since former Attorney General Meese made his famous
> plea before the American Bar Association for a "return to the
> jurisprudence of original intent."  Since that time, the expanding and
> evolutionary literature on originalism has resulted in uncounted books
> and articles.  I have been asked to write a reportage kind of piece for
> a journal on the extent to which originalism--including its proponents,
> detractors, and its influence--is now part of law or undergraduate
> teaching about the Constitution.
>
> If members of the list would like to comment on their own or observed
> experiences in teaching about originalism, I should be very grateful.
>
>
> David Forte
> Cleveland State University
>
>
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Anyone can subscribe to the list and read messages that are posted; people can
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messages to others.

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To post, send message to Conlawprof@xxxxxxxxxxxxxx
To subscribe, unsubscribe, change options, or get password, see 
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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 
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messages to others.

[LMP] Re: Originalism in the American Law Professoriate

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