(Michael) ... these are good questions. A couple of comments. 1. The point that is being objected to is when a person confuses an example of a word with its meaning. And also when they compound the problem by believing that, if it's the framer's example, the issue goes away. (It actually gets worse). So let's take several examples: "chair," "liberty," "lunch," "game," "speech,", and "food," If you found that the framing generation selected an example of each, it would be a fallacy to take this example as being "the original meaning of" chair, liberty, lunch, game, speech or food. The meaning of these words is never a single example of them, because the words are family resemblance terms. Imagine that most in the framing generation said the following of something our generation generally called a chair (e.g., a living-room beanbag): "that's not a chair!" Under such circumstances, it would NOT be the case that either of us disagreed with the meaning of "chair" or that we had "separate meanings." Rather, it would only be that we differed over which examples we liked or decided to include. But in such cases of disagreement, both of us understand what "chair" stands for in the language game perfectly well (a seating-utility device of some sort). Please note that, in law, it is only "chair" that is passed along to the next generation, not the examples (protocol) of it. Imagine Patrick Henry and Dr. King disagreeing over whether X counted as "liberty." This disagreement would not be over what "liberty" means in language; rather, it would be over whether this case or example should count. If generations want to regiment progeny with regard to the TYPE of chairs or the EXAMPLES of liberty, they need to pass along language different than "chair" or "liberty" -- they need, in short, language that speaks to the level of protocol (of examples). Otherwise, such words operate in language the same then as they do now. They say, in essence, "pick a member of the family" or "select your example of it." 2. Nothing I have ever said would suggest that anthropology or historicism should never be used for understanding language. The use here would be the same, I suppose, as dictionaries. Indeed, if the language culture changes significantly -- of or a use is idiosyncratic -- you need to consult such things. Example: Plato's use of "the forms." The issue here would be to avoid polysemy or to catch a colloquialism or a local parlance, of some sort. But once both of us know what family resemblance we are dealing with -- "chair," "game," "lunch," etc. -- historicism has come to an end in terms of stating language meaning. 3. Please note that we might use all sorts of historicism as suggestive guidance to tell us WHICH chair, liberty, etc., to pick. My point is only that the pick is OURS. And we are not violating either language or law when we pick an example different or even objected to by those who preceded us. So my view isn't "don't use history." It is: quit telling us that the original meaning of the constitution is the examples picked by the framing generation. If any parent of any generation has ANYTHING relevant to add to our lives, let it come through whatever inherent wisdom it offers rather than through both a language fallacy and an ideological program. Any originalism (or tradition) that ever comes to us must do so on its own making. 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 ----- Original Message ---- From: "Curtis, Michael K." <curtismk@xxxxxxx> To: Patrick Wiseman <pwiseman@xxxxxxx>; "CONLAWPROF@xxxxxxxxxxxxxx" <conlawprof@xxxxxxxxxxxxxx> Sent: Fri, March 5, 2010 11:21:07 AM Subject: RE: Originalism, "Arms," and Family Resemblance I do not claim to be an originalist, because I am not sure what it means. History including historical context and original meaning strike me as factors, not the only factors. & I agree that the ultimate question is what do these words mean to us--but what does that mean? It does seem to be legitimate to look for multiple sources of understanding the meaning to us of words in the text of the Constitution and that history and historical context is one source of understanding; precedent is another; and there are more. Courts appeal to history and have at least since John Marshall. What sorts of problems influenced the writing of the provision? Is this not a relevant question? If someone (Bork) says the words of the privileges or immunities clause of the 14th Amendment are an inkblot, is it legitimate to show that the words were commonly used to describe particular liberties in the Bill of Rights--running from early American history through the Civil War, in Court opinions (e.g. Palko and others), and e.g., in FDR's proclamation of Bill of Rights Day. If this is to be ruled out, it is hard for me to see why. Where exactly does Wittgenstein say that looking at usage is not a way to see how the language game is played? (This is not a rhetorical question, I have only very slight knowledge of Wittgenstein). If what the words meant in 1866-68 is a factor, then would not usage then be relevant? Whether 18th or 19th century common usage or any single factor should be controlling is another matter. Even those who say it is, won't follow this approach consistently--see Scalia-- (a good thing at least sometimes) so they do their own picking and choosing. Judges invoke of principles in one context and then different values produce different decisions-- as in invocation of federalism to strike down the Gender Violence Act and ignoring it in striking down state tort laws as preempted by language that does not seem to do that. Complaining about less textually explicit rights for gays (Lawrence) and finding them for states (Alden v. Maine). Michael Curtis ========================================= Need Something? Check here: http://ludwig.squarespace.com/wittrslinks/