[Wittrs] ConHist

  • From: Robert Sheridan <rs@xxxxxxxxxxxxxxxxxx>
  • To: "Scarberry, Mark" <Mark.Scarberry@xxxxxxxxxxxxxx>
  • Date: Thu, 04 Mar 2010 18:41:37 -0800

Busy elsewhere lately and not following the thread, I thought nevertheless that this might be an appropriate place to offer a thought. When we look back to the intent of the Founders, the Framers, or the intent of the legislators (such as in the case of the 14th Amend., we're leaving the realm of case-law interpretation as taught to first year law students in the introductory course, where the rule is said to be that one may take the facts, the issue, and decision to deduce the rule of law with or without the help of the rest of the opinion. But as discussions here so often show, ConLaw is as much ConHist as it is the interpretation of cases.


This gives Conlaw a much richer dimension than ordinary case-law interpretation, for when parsing historical examples, or episodes, or eras, such as that of Lochner or the New Deal, for governing principles, we're all over the map. What did the American Revolution accomplish? The Civil War? The 14th Amend.? What is a militia, etc?

Volumes are written on such things, yet we can't cite to any definitive history, or historical interpretation, the way we can to, say, Marbury, for the proposition, whether we like it or not, that the Court has arrogated to itself a power to nullify acts of its own and coordinate branches and states called 'judicial review.' Why? Because while cases are decided authoritatively by the Supreme Court of Law, we don't have a Supreme Court of History, except in cases where, as in NYT v. Sullivan, the Court pronounces, for example, that in the Court of History the Alien and Sedition Acts have been determined to be unconstitutional as a FA violation.

This has caused me to reach for the two volume set entitled "Constitutional Law In Context" by Michael Kent Curtis, J. Wilson Parker, Davison M. Douglas, & Paul Finkelman (Carolina Academic Press, 2003, 2006), in which I see that the whole thrust has been to provide the history without which not much law can be understood. In Crawford v. Washinton, the recent hearsay case, Justice Scalia invoked Sir Walter Raleigh's case, among other celebrated miscarriages of justice, to set forth the modern rule as the Court now defines it.

The study of Conlaw is the study of ConHist, and vice versa.

Why don't we call this the ConHistProfs listserv?

rs

Sorry for intruding...


Scarberry, Mark wrote:
Hello Sean. I'm sorry, but I don't find your method of analyzing language to be authoritative for purposes of constitutional law. I also think it is not at all surprising that a society that adopts basic law (a constitution) would expect that law to be persistent even when a new generation arises that knows not Madison. If each new generation gets to pour new meaning into the old wineskins of constitutional provisions, the system will be inclined to rupture, as those of us who decline to be governed by the new rules that are thus created object to the creation of the new rules. (There is of course the question of who within each new generation gets to do the pouring; if it's the courts, then I want the judges to be elected, and I think I want a hefty supermajority of those elected judge/legislators to have to agree before new meaning can be thus poured.) Mark S. Scarberry
Pepperdine University School of Law
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*From:* conlawprof-bounces@xxxxxxxxxxxxxx [mailto:conlawprof-bounces@xxxxxxxxxxxxxx] *On Behalf Of *Sean Wilson
*Sent:* Thursday, March 04, 2010 9:58 AM
*To:* conlawprof@xxxxxxxxxxxxxx
*Cc:* wittrsamr@xxxxxxxxxxxxx
*Subject:* Originalism, "Arms," and Family Resemblance

Hello Mark.
In your comment below, you use this language: "[Sean's point of view is that] we can't really be bound by what the persons who adopted authoritative language meant by that language." Two issues: language and generations. LANGUAGE For family resemblance terms, there is no meaningful difference between our use of such words and theirs, even though the example of it differs. This is the same as my use of the word "lunch" and yours, where we eat different things. The fallacy here is to think two things: (a) that language must be a picture of something empirical in the word (essentially, a reification problem); and (b) that its meaning is given to us by the examples and behavior of forebears. Point (a) is a common mistake; point (b) is a dogma. Hence, the term "arms" in language can mean a family of things and has different senses. The persons who enshrined this language into law did nothing but enshrine a family of things, and then merely chose as their protocol one example of it. We understand this uncontroversially when we leave constitutions and look at statutes, where we see elaborate definitions and legalisms. The constitution doesn't come to us that way -- it comes only as generalities. In this situation, the language doesn't mean how a prior generation behaved under those generalities, any more than what you eat for "lunch" must be the thing the prior generation ate, or else you are violating the meaning of "lunch." Family resemblance terms don't work like that. GENERATIONS If you think about it, it is extremely strange that a current generation of Americans would be told by someone that they were legally bound to follow the choices of their father's and forefathers with respect to anything. Even in American families, this isn't much of an ethic anymore. At best, the choices of forefathers are offered only as examples or suggestions. And if you look at social institutions that actually do bind their progeny -- the Amish, fraternities, religious sacraments, etc. -- you can clearly see that neither the democratic ritual nor its resultant legalism is concerned with it. All that generations do through constitutions is pass along a linguistic framework from which subsequent ones can choose to follow existing examples or pick new ones. There is nothing in law or language that requires otherwise. So if one is going to get "up in arms" because we today have chosen examples different from the likes of Patrick Henry and Bushrod Washington, one would want to know what on earth is the cause of this misplaced political enthusiasm. It probably is very simple: we live in peculiar times in American history. We live in an epoch where segments of American conservatism (a.m. radio and teabaggers) have become so indulged with cultural idolatry that they think "law and language" requires imitation of the hegemonic beliefs and practices of agrarian society in the late 1700s. What I hope happens in the future is that the law professor academy would come to universally understand that the meaning of a family-resemblance word is never the imitation of another's discreet example of it. There is no significant mystery about what "arms" means. Any English speaker has a decent understanding of the idea. There is only the question of what sense to give it when justices choose to speak the language in decisions. They can give it good or bad sense. This is the same choice that you and I have when choosing to use the expression in language. So the question is never "what it means," but always whether the use of it by justices amounts to a reasonable sort of vernacular. Regards and thanks.
Dr. Sean Wilson, Esq.

Assistant Professor

Wright State University

Personal Website: http://seanwilson.org <http://seanwilson.org/>

SSRN papers: http://ssrn.com/author=596860

Discussion Group: http://seanwilson.org/wittgenstein.discussion.html



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*From:* "Scarberry, Mark" <Mark.Scarberry@xxxxxxxxxxxxxx>
*To:* conlawprof@xxxxxxxxxxxxxx
*Sent:* Wed, March 3, 2010 10:47:33 PM
*Subject:* RE: Originalism and Arms

I'm afraid that a thorough-going acceptance of Sean's point of view -- that we can't really be bound by what the persons who adopted authoritative language meant by that language -- would lead to a more literal application of his conclusion than he might have intended: We might indeed be "free to make [our] own arms choices." That is, we might need to take up arms of our own choice to preserve what we thought was the constitutional order. But thankfully there is no such need for another armed American revolution. Mark Scarberry
Pepperdine

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*From:* conlawprof-bounces@xxxxxxxxxxxxxx on behalf of Sean Wilson
*Sent:* Wed 3/3/2010 3:15 PM
*To:* conlawprof@xxxxxxxxxxxxxx
*Subject:* Originalism and Arms

(Eugene)

... a minor quibble. It's doubtful that a "scope question" is limited by the "historical meaning of arms," unless one is wanting from the start to imitate the culture of the forebears for some reason (see Colonial Williamsburg). But lacking an interest in drama or theatrics, one would rather say that, if the scope is to be limited by legal words at all, it should be limited only by whatever meaning "arms" has in the English language culture -- which is a family resemblance (and always has been). In other words, any sense that "arms" has in the lexicon is available to this generation to use, just as it would be if one were choosing to speak the word. The only linguistic limitation here is that the sense we choose is understandable to the original generation. They wouldn't have to agree with it, just understand the expression. That is all that language ever requires of its users. Once you begin using a word with a sense that has no understanding to others versed in the same language as yours, only then can you say that you are "cheating language." Here's what I want to say: there is no such thing as incorrect sense of "arms" in language where the same is cognizable to others in the language game -- i.e., where the sense is redeemable for cash value in the language marketplace. Rather, there are only good and bad PERFORMANCES of language. Think of it as art. What this view reduces to, I think, is saying that the sense we choose should have semantic integrity -- or, that it should be a good example of the aesthetic. This view allows both law (language) to exist while allowing for generations to "cheat" by picking cases of sound policy that interact with respectable linguistics. And let me say this. Those of you who want the arms protocol of the past to govern us today, as opposed to an arms protocol we select, really have to tell us WHY we should follow the forebears for reasons other than language. Because those reasons are flawed. Originalism can never come to you by means of language authority. It must always come, if at all, on its own terms.

The simple fact of the matter is that no person of this generation is bound by the arms choices of the past. They are free to make their own arms choices.
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



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