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

  • From: Sean Wilson <whoooo26505@xxxxxxxxx>
  • To: conlawprof@xxxxxxxxxxxxxx
  • Date: Fri, 5 Mar 2010 21:28:06 -0800 (PST)


... 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 

 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" 
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. 

Michael Curtis

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