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

  • From: Mark Stein <chmyankel@xxxxxxxx>
  • To: <mark.scarberry@xxxxxxxxxxxxxx>, <whoooo26505@xxxxxxxxx>, <conlawprof@xxxxxxxxxxxxxx>
  • Date: Thu, 4 Mar 2010 21:23:10 -0500

Mark, you talk a good game, but if you were seriously disposed to commit 
treason (take up arms against the United States) in response to liberal 
nonoriginalism, why didn't you do so when liberal nonoriginalism was in its 


Subject: RE: Originalism, "Arms," and Family Resemblance
Date: Thu, 4 Mar 2010 18:04:54 -0800
From: Mark.Scarberry@xxxxxxxxxxxxxx
To: whoooo26505@xxxxxxxxx; conlawprof@xxxxxxxxxxxxxx
CC: wittrsamr@xxxxxxxxxxxxx

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; 
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 

From: conlawprof-bounces@xxxxxxxxxxxxxx 
[mailto:conlawprof-bounces@xxxxxxxxxxxxxx] On Behalf Of Sean 
Sent: Thursday, March 04, 2010 9:58 AM
Subject: Originalism, "Arms," and Family 

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 
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 
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 
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 
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 
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" 
To: conlawprof@xxxxxxxxxxxxxx
Sent: Wed, March 3, 2010 10:47:33 
Subject: RE: Originalism and 

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
Subject: Originalism and 


... 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 
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 

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State 
Personal Website: http://seanwilson.org/
SSRN papers: 
Discussion Group: 

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