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

  • From: Sean Wilson <whoooo26505@xxxxxxxxx>
  • To: conlawprof@xxxxxxxxxxxxxx
  • Date: Thu, 4 Mar 2010 20:14:53 -0800 (PST)

.. a couple of comments.  (Not intended to convert anyone, just to share).  

1. I haven't proposed a method for analyzing language. I'm Wittgensteinian; we 
don't do that. In fact, what I have tried to get you to see is that you are the 
one who is proposing an orthodoxy here. One does not need a method or 
orientation for knowing family resemblance terms; that's precisely their 
beauty. In fact, if you try to impose an orthodoxy, you end up creating 
an ideology of some sort. At some point, you originalists are going to have to 
come to terms with the fact that your constitution is framed in an ordinary and 
general parlance. And that there is absolutely nothing in language which would 
say that the meaning of such words are found in any example of them chosen by 
people at any discreet point in time.  

2. I also must note two things here. The real effect that neo-originalism has 
upon ordinary words is to invent a belief system that can transform them into 
technical or jargonized words. But because they are not, in fact, these kinds 
of words in the language culture, what this amounts to is turning them into a 
kind of secret code. Imagine someone saying that the meaning of "lunch" is what 
the founders ate. Or that, the original meaning of "food"  included a heavy 
diet of corn. If one accepts this, these words now have a sort of meaning that 
resembles a secret-code or secret-society of some sort. It feels like it 
confuses citizenship with membership in the Masonic Lodge or something. (The 
lawyers are here to tell us the secret Masonic meaning of "arms" and "speech" 
after we put on our lodge hats). 

Note also that this desire for technicality and precision in law is a product 
of the positivistic age. That is, you originalists today who promote this are a 
product of the current, post-industrial, post-Roosevelt, positivistic 
legal regime. So you expect "law" to regiment in the way, say, medicine does. 
You want phrases like "Schedule-II Controlled Substance" that has its meaning 
spelled out in paragraph (a), sub-section what-not. What you want in a way is 
to have you cognition regimented by words. You want law to tell you what to do. 
That's fine. That's all well and good.

But the problem is that your constitution doesn't do that with its language. So 
you have to invent a way to prevent others from giving it the meaning LANGUAGE 
ALLOWS. Now, what troubles me about this is that, all the while, you pretend to 
be guarding its meaning. You pretend as if eating something other than 
the framer's lunch is somehow injurious to "lunch." This is the part that 
surely has to stop.

3. This idea that following a new example of an ordinary word is somehow 
"pouring new meaning" into the word is not something that can be supported in 
linguistics. There is no violation of "basic law" here, because law is only 
language. This is the same premise that allows you to be positivistic when 
words and phrases are rigid. Don't you see that? The same thing that allows one 
to say "Schedule II Controlled Substance is only what is written here" is the 
very same thing that allows one to say "family resemblance on this one, judge." 
Don't you see they come from the same system of thought? Originalists are the 
ones who are double talking as far as jurisprudence goes. You want to be 
religious with your constitution, yet positivistic with your statutes.  One 
involves metaphysics and conjuring, the other "just reading." In one instance, 
Law is like serving a deity; in the other, it is only the cold, naked words.

4. The only time we really indulge historicism for purposes of meaning (outside 
of religion and metaphysics) is for celebratory purposes. For 
example, "Jefferson's Constitution." Or, what civil rights meant to Dr. King. 
That is, we sometimes indulge person-specific psychology in meaning for 
artistic purposes.  We cannot do this in law, because idolatry is not its 
vehicle. It would make the whole thing look like religious or cult worship, or 
authoritarian propaganda (See Saddam Hussein). Hence, we leave this sort of 
device only for art appreciation or theatrics or drama. 

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: Sean Wilson <whoooo26505@xxxxxxxxx>; conlawprof@xxxxxxxxxxxxxx
Cc: wittrsamr@xxxxxxxxxxxxx
Sent: Thu, March 4, 2010 9:04:54 PM
Subject: RE: Originalism, "Arms," and Family Resemblance

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 
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 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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