[Wittrs] Originalism, "Arms," and Family Resemblance

  • From: Sean Wilson <whoooo26505@xxxxxxxxx>
  • To: conlawprof@xxxxxxxxxxxxxx
  • Date: Thu, 4 Mar 2010 09:58:01 -0800 (PST)

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.

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.    

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
SSRN papers: http://ssrn.com/author=596860
Discussion Group: http://seanwilson.org/wittgenstein.discussion.html 

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

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


... 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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