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

  • From: "Scarberry, Mark" <Mark.Scarberry@xxxxxxxxxxxxxx>
  • To: "Sean Wilson" <whoooo26505@xxxxxxxxx>, <conlawprof@xxxxxxxxxxxxxx>
  • Date: Thu, 4 Mar 2010 18:04:54 -0800

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


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
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 <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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