[C] [Wittrs] Re: Bound by Constitutional Text?
- From: Sean Wilson <whoooo26505@xxxxxxxxx>
- To: metalaw@xxxxxxxxxxxxx, conlawprof@xxxxxxxxxxxxxx, wittrsamr@xxxxxxxxxxxxx
- Date: Thu, 23 Sep 2010 14:19:52 -0700 (PDT)
Chris.
As I understand the matter, this is your claim: when language is ambiguous or
capable of different senses, that its true meaning (or correct sense) can be
found in "historical context." Although we need examples to flush this out, I
have two basic replies.
The first is that this only works with polysemy. Short of that, one would need
to have the details of what you are calling "context" spelled out in law so
that
it, itself, can be enacted. Secondly, I see no practical difference between
how
one thinks of "intent," "context" or "expectation" when talking about what "the
law is." All of these "mind terms" are subject to the Scalia principle (for
statutes). Lawmakers never enact their their subjective intentions,
assumptions,
contexts, etc. They only enact language. Therefore, if a generation passes a
law
containing very general words, yet actually means something specific, it is not
the specific thing that is the law. Instead, the specific thing is merely the
favorite CHOICE (for that epoch) of the thing that is enacted.
Examples.
(a) The framers pass a law that says, "republican government requires civic
virtue." (See prior mail). If our cultural arrangement becomes more Roman, the
sense of virtue could change over time, because the framers had never enacted
their cultural arrangement into the sentences that form this law. The same is
true if our culture becomes more pious. Because both a roman sense of virtue
and
a pious sense are within the family resemblance of "virtue," either can be
reasonably said to be the meaning of "virtue" in our language arrangements.
(b) The framers say, "children in public schools shall be provided lunch." The
framers have in mind corn, milk and other staples of 18th century midday
nourishment commonly given to children. If the sense of "lunch" changes over
time and some children are given vitamin bars, the law is not violated, because
the framers have only placed the "lunch concept" into law.
To enshrine a context into law, you need to pass extremely complicated
sentences
(legalisms). And inasmuch as constitutions are sort of "the law for the
law-making process," my sense is that enshrining a cultural regiment or
protocol
would never work. It seems only to work with passing concepts and ideals.
What I want to say here is this: Constitutions and Wittgenstein seem made for
each other.
Regards and thanks.
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
(Subscribe: http://ludwig.squarespace.com/sworg-subscribe/ )
SSRN papers: http://ssrn.com/author=596860
New Discussion Groups! http://ludwig.squarespace.com/discussionfora/
________________________________
From: "crgreen@xxxxxxxxxxx" <crgreen@xxxxxxxxxxx>
Cc: metalaw@xxxxxxxxxxxxx; conlawprof@xxxxxxxxxxxxxx; wittrsamr@xxxxxxxxxxxxx
Sent: Wed, September 22, 2010 10:13:23 PM
Subject: Re: Bound by Constitutional Text?
"If the sense ACTUALLY existed (was expressed), there would be no ambiguity in
the first place."
That doesn't seem right. Ambiguity means that the same chunk of language can
express different things in different contexts. But in a particular context,
it
can still express one thing.
"[T]he 'historically expressed sense' (your view) must be compared to other
senses that language itself permits -- and that, if spoken, would themselves be
cognizable to the framing generation."
Once we know what sense was expressed by the constitutional text in its actual
context, I don't see why (as a constitutional matter) we should care at all
what
meaning that chunk of text would express in other contexts.
"The job of the judge, where the mind is not 'pinned' by words, is to speak the
language of the framers (back to both them and to future generations) using a
sense that can be understood by all in the language culture."
I'm not sure why this is the case. The interpretive job of the judge isn't to
speak the language of the framers, but to understand it. And the framers are
certainly not the audience for our present interpretive work.
--- Original message ---
>Subject: Re: Bound by Constitutional Text?
>From: Sean Wilson <whoooo26505@xxxxxxxxx>
>To: <conlawprof@xxxxxxxxxxxxxx>, <metalaw@xxxxxxxxxxxxx>,
><wittrsamr@xxxxxxxxxxxxx>
>
>Date: Wednesday, 09/22/2010 4:54 PM
>
>
>Chris:
>
>
>Here is the problem.
>
>
>1. When a person plods through a legal ambiguity, they are not picking "the
>true
>
>sense that exists;" they are picking the one that makes BEST SENSE for the
>issue
>
>at hand. If the sense ACTUALLY existed (was expressed), there would be no
>ambiguity in the first place. The mere presence of ambiguity means that law is
>not binding (behaviorally) with respect to that issue. Therefore, what
>originalists really do is re-write sentences to accord with how the framers
>would have written them if they had a second chance at drafting the issue.
>That
>is, what they do is promote something that never passed the democratic ritual
>into the status of "law." Therefore, the "historically-expressed sense" (as
>you
>put it) is treated as having been itself codified -- when, in fact, it never
>was. Neither positivism in general, nor Scalia's view of how legislatures
>"speak" (in particular), would seem to support such a view.
>
>2. Keep in mind that I'm not saying that meaning-contests do not erupt inside
>legalistic codes (UCC and FSG). What I am saying is two things: (a) that
>meaning-contests are reduced by rigidity in language (by spelling things out);
>and (b) that positivistic culture creates codes and manuals for this explicit
>purpose. There is a hidden premise (enthymeme) here for positivism is this:
>law
>is only what minds are pinned to (regimented) in language. Anything else is an
>argument for what law SHOULD BE -- which is the very question that the judge
>referees.
>
>
>If originalists could only see this (1 and 2), they would come to see that
>they
>are not defending "law;" they are defending a view for what law SHOULD BE. And
>as such, the "historically expressed sense" (your view) must be compared to
>other senses that language itself permits -- and that, if spoken, would
>themselves be cognizable to the framing generation. The job of the judge,
>where
>the mind is not "pinned" by words, is to speak the language of the framers
>(back
>
>to both them and to future generations) using a sense that can be understood
>by
>all in the language culture. The judge's job, therefore, is to select the best
>family resemblance in the language game -- to give the Constitution good
>grammar
>
>(as it were).
>
>
>DEFINITIONS
>1. If the law sets forth a definition-section, then what you say here may be
>more applicable. Our constitution doesn't do this. So we are not presented
>with
>a situation where the law attempts to set forth a stipulation (or criteria)
>for
>the use of a word. That's why, incidentally, codes and manuals usually do such
>things -- so that there are fewer issues as to what sense is actually enacted.
>
>
>Here's what the bottom line is: legal culture in America has become
>linguistically pedantic (law is only what words point to). It is not possible
>to
>
>entertain originalism without changing the assumptions of this culture with
>respect to what codification is or does. This may be more of an issue than the
>language assumptions originalists make. The real money may revolve around
>one's
>philosophy of codification. (One's philosophy of what the democratic ritual
>really does).
>
>
>Regards and thanks.
>
>Dr. Sean Wilson, Esq.
>Assistant Professor
>Wright State University
>Personal Website: http://seanwilson.org
> (Subscribe: http://ludwig.squarespace.com/sworg-subscribe/ )
>SSRN papers: http://ssrn.com/author=596860
>New Discussion Groups! http://ludwig.squarespace.com/discussionfora/
>
>
>
>
>
________________________________
From: Christopher Green <crgreen@xxxxxxxxxxx>
>To: conlawprof@xxxxxxxxxxxxxx; metalaw@xxxxxxxxxxxxx; wittrsamr@xxxxxxxxxxxxx
>Sent: Wed, September 22, 2010 2:14:32 PM
>Subject: RE: Bound by Constitutional Text?
>
>
>"In positivistic legal regimes, for law to have sense 1, 2 or 3, it must
>explicitly enact (describe) those senses. If it doesn't, any sense of the idea
>could be used and be obedient to 'virtue.' Keep in mind that I don't say this
>a
>priori. I say it because of the way legal systems operate. This exact ethic is
>what caused the legalism in the UCC or Federal Sentencing Guidelines to be
>created. The premise is that law is only its language, and that, to avoid
>family
>
>resemblance problems, the sense of the idea needs specified. If the sense is
>not
>
>specified, the job of the judge is to pick the BEST SENSE, which may or may
>not
>be the one drafters/approvers liked best when they codified the naked words."
>
>These assertions don't seen right to me, and I haven't seen anything like this
>in the UCC or sentencing-guidelines cases I've read. When words are
>ambiguous--i.e., express different senses in different contexts--interpreters
>have to figure out which sense was expressed in the actual context, not just
>pick the one they prefer on normative grounds. What case has ever said
>anything
>
>different?
>
>"As any good Wittgensteinian could surely attest, words do not have essences;
>they have GRAMMAR."
>
>All I need is for words to have definitions, not essences. I'm only citing
>Plato to make the distinction between a definition and an example clearer.
>
>
>
________________________________
From: conlawprof-bounces@xxxxxxxxxxxxxx
[mailto:conlawprof-bounces@xxxxxxxxxxxxxx] On Behalf Of Sean Wilson
>Sent: Wednesday, September 22, 2010 12:55 PM
>To:conlawprof@xxxxxxxxxxxxxx
>Cc: metalaw@xxxxxxxxxxxxx; wittrsamr@xxxxxxxxxxxxx
>Subject: Re: Bound by Constitutional Text?
>
>
>(reply to Chris Green, who has offered a point about language and law that
>endorses definitions and essences.)
>
>Chris:
>
>There are two issues here as I see it. The first is one about language; the
>other about law. I want to take the easy one first.
>
>
>
>LAW
>Let's imagine that the framers placed the following sentence in the
>Constitution: "Republican Government requires Civic Virtue." And let's assume
>that right-wingers win the presidential election in 2012. And let's imagine
>that, in 2012, they contend that the President has the inherent power to
>prorogue Congress, even though such a right is not in the Constitution. The
>right-wingers believe this because the country doesn't have a right to a
>Congress, absent sufficient civic virtue. Further, the power to prorogue can
>be
>traced back to the ancients, and so can the ideology of republicanism and
>virtue. And let's assume that, for present purposes, there is no issue about
>what "republican government" means (for the moment) or what "civic" is doing
>in
>the constitutional sentence. Rather, the only issue is what "virtue" means and
>whether Americans are devoid of it.
>
>
>Your contention reduces to this. If we can find a dominate sense of the
>expression "virtue" either in the culture at large or in the
>drafters/approvers
>in particular, that this sense is therefore ordained in the law. My point is
>that it is not, by virtue of how legal systems work. To understand this,
>consider the following senses of "virtue:"
>
>
>1. Roman. "VEER-too." To show "virtue" in Rome, one had to show "strong male
>bravery and soldiery." You had to be, in short, a butt-kicker. Soldiers would
>be
>
>honored for displaying their virtue (being a "he-man") in battle.
>
>
>2. English. Control of the passions. Virtue is showing that your obsessions
>and
>desires can be controlled.
>
>
>3. Washington during the war. Virtue comes to mean sacrifice. Those who show
>true virtue are those who will die for noble things. Jesus had exemplary
virtue.
>
>
>In positivistic legal regimes, for law to have sense 1, 2 or 3, it must
>explicitly enact (describe) those senses. If it doesn't, any sense of the idea
>could be used and be obedient to "virtue." Keep in mind that I don't say this
>a
>priori. I say it because of the way legal systems operate. This exact ethic is
>what caused the legalism in the UCC or Federal Sentencing Guidelines to be
>created. The premise is that law is only its language, and that, to avoid
>family
>
>resemblance problems, the sense of the idea needs specified. If the sense is
>not
>
>specified, the job of the judge is to pick the BEST SENSE, which may or may
>not
>be the one drafters/approvers liked best when they codified the naked words.
>This means that generations are free to select examples of "virtue" since all
>that is codified is the idea. This is consistent with Scalia's idea that
>lawmakers must say what they mean (and mind-reading is not part of the
>judicial
>chore).
>
>
>LANGUAGE
>The other issue here is whether "virtue" -- or your example, "pious" -- has
>an "essence," which would allow a true definition to reveal it. As any good
>Wittgensteinian could surely attest, words do not have essences; they have
>GRAMMAR. This doesn't mean, of course, that words are willy-nilly -- for all
>words surely have moorings of a sort. But what it means is that
>the moorings are of a cognitive phenomenon that become manifested as family
>resemblance (unless the words are Kripkean).
>
>
>Therefore, the specific answer to the question of "what makes all things
>pious"
>(the issue below) is something inherently ANTHROPOLOGICAL and COGNITIVE. Given
>what we know, it is a set of things -- a, b, c, d, e, f -- which are combined
>and substituted for any use. Some uses are {a, b, d, f}, some {a, b, c, d},
>others {a, c, e}. To really know this answer, one simply needs to see what
>humans are doing with the idea in the language game. As Wittgenstein says,
>"don't think, look!"
>
>
>(P.S. sent to metalaw and wittrs)
>
>
>Yours forever a Wittgensteinian,
>
>Dr. Sean Wilson, Esq.
>Assistant Professor
>Wright State University
>Personal Website: http://seanwilso n.org
> (Subscribe: http://ludwig.squarespace.com/sworg-subscribe/)
>SSRN papers: http://ssrn.com/author=596860
>New Discussion Groups! http://ludwig.squarespace.com/discussionfora/
>
>----- Original Message ----
>From: Christopher Green <crgreen@xxxxxxxxxxx>
>To: conlawprof@xxxxxxxxxxxxxx
>Cc: metalaw@xxxxxxxxxxxxx
>Sent: Tue, September 21, 2010 2:45:04 PM
>Subject: RE: Bound by Constitutional Text?
>
>"Here's what I want to say: the oath isn't a loyalty to a prior age or
>culture or set of minds. It is a loyalty only to things that can be said to
>be in the document's language."
>
>Right.
>
>"And because the langue involves family resemblance, the things given to us
>by forebears are only examples of that language. Other examples are
>possible."
>
>This doesn't seem right. Sufficiently-foresighted founders might give us
>definitions, rather than just examples. See
>http://classics.mit.edu/Plato/euthyfro.html ("I did not ask you to give me
>two or three examples of piety, but to explain the general idea which makes
>all pious things to be pious. ... Tell me what is the nature of this idea,
>and then I shall have a standard to which I may look, and by which I may
>measure actions, whether yours or those of any one else, and then I shall be
>able to say that such and such an action is pious, such another impious.").
>
>-----Original Message-----
>From: conlawprof-bounc es@xxxxxxxxxxxxxx
>[mailto:conlawprof-bounc es@xxxxxxxxxxxxxx] On Behalf Of Sean Wilson
>Sent: Tuesday, September 21, 2010 1:30 PM
>To: conlawprof@xxxxxxxxxxxxxx
>Cc: metalaw@xxxxxxxxxxxxx
>Subject: Re: Bound by Constitutional Text?
>
>... just to be clear on this, what I mean is that the bits and pieces of
>historical evidence that allow one to construct a "sense" of an expression
>-- or to make the expression fixed upon some specific object -- are not,
>themselves, ever blessed by the ritual. It's really the same argument that
>Scalia makes about Congress and its intentions. If you cannot say what you
>mean in the blessing ("the ayes have it"), you have, by definition, left it
>for others to pick among the possible things that the general words could be
>said to have said.
>
>Here's what I want to say: the oath isn't a loyalty to a prior age or
>culture or set of minds. It is a loyalty only to things that can be said to
>be in the document's language. And because the langue involves family
>resemblance, the things given to us by forebears are only examples of that
>language. Other examples are possible.
>
>And so, if you don't say exactly what you mean when passing law, you can't
>claim that the things left out of the ritual are secretly hiding there. They
>aren't, by virtue of how legalism works.
>
>
>Regards and thanks.
>
>Dr. Sean Wilson, Esq.
>Assistant Professor
>Wright State University
>Personal Website: http://seanwilso n.org
> (Subscribe: http://ludwig.squarespace.com/sworg-subscribe/ ) SSRN papers:
>http://ssrn.com/author=596860 New Discussion Groups!
>http://ludwig.squarespace.com/discussionfora/
>
>
>
==========================================
Need Something? Check here: http://ludwig.squarespace.com/wittrslinks/
Other related posts:
- » [C] [Wittrs] Re: Bound by Constitutional Text? - Sean Wilson
