[Wittrs] What is "Originalism" [Larry Solum's View]
- From: Sean Wilson <whoooo26505@xxxxxxxxx>
- To: conlawprof@xxxxxxxxxxxxxx, wittrsamr@xxxxxxxxxxxxx
- Date: Sun, 2 May 2010 11:26:53 -0700 (PDT)
Hi Larry.
Your position is that "originalism" in law reduces to two premises: (1) "the
fixation thesis (linguistic meaning of the text is fixed at the time of
utterance);" and (2) "some version of the constrain system (there is a[n]
... obligation to conform legal practice (doctrine and application) to the
linguistic meaning ...". So we have two things: language is fixed, and judges
must abide that.
The central problem as I see it lies in your first premise. I need an
example of a sentence that has a "fixed meaning," so I can see what "fixed" is
doing here. (Clearly, fixed isn't "fixed"). The main of language philosophy
would hold that only certain kinds of words (rigid designators) resist family
resemblance. So it seems that a better account of language would focus on the
kinds of words used, and not start from the rather large premise, "every
sentence has a fixed meaning."
Indeed, what you really seem to be saying is this: every utterer of a sentence
has a single meaning in his or her mind when declaring it. Note that the unit
of analysis has changed from what language means to what the speaker thinks
when saying it. This, for sure, would be a much better account of "originalism"
-- for that is what "originalism" has historically been. Always, it has been
about the search for communion with certain dead brains of the past in order to
relive their mental lives and lionize their world understanding (for whatever
enjoyment that pathos brings).
Note also that there may be a false dichotomy lurking here. I hope you are not
of the belief that IF ordinary language is not "fixed" (as you say), that it
must therefore be "willy nilly." I don't believe you have ever argued this, but
I want to be clear. Wittgenstein would see language as being something
STRUCTURING. Is this "fixed" in your view? Let's say that most language comes
to us in the form of a family resemblance. Such a thing would ultimately be a
cognitive phenomenon (I assume), and would therefore "loosely bind." One might
say: language channels. What is wrong if language binds in this way? (There is
good reason to believe from cognitive sciences that human brains are hardwired
to receive messages precisely in this format).
So my point is that your fixation thesis seems to be less about language and
more about what one might call "declarant psychology."
Also, there is another important enthymeme here: when legislatures pass law, do
they enact their declarant psychology with respect to the language
being anointed (assuming such a thing can exist in a corporate form)? I think
it is quite problematic to say that such a thing happens as a matter of the way
law works. It surely goes against our positivistic understanding of law being
only its language and not any generation's selected protocol for it.
So I would say that once we repair your fixation thesis to make it
(appropriately) a theory about intention, the meaning of "originalism" becomes
quite clear. At time X, generations form pictures P concerning the ritual of
enactments Q, and for all time after X, P is the law, not Q. Pretty much, this
idea has been dumped in legal history and is only now resurfaced among
conservative law professors.
Where is my error?
Regards and thanks.
(PS -- sent this to my list Wittrs, too, since it is about language)
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: Lawrence Solum <lsolum@xxxxxxxxx>
To: Miguel Schor <mschor@xxxxxxxxxxx>
Cc: "conlawprof-bounces@xxxxxxxxxxxxxx" <conlawprof-bounces@xxxxxxxxxxxxxx>;
"conlawprof@xxxxxxxxxxxxxx" <conlawprof@xxxxxxxxxxxxxx>
Sent: Sun, May 2, 2010 12:17:41 PM
Subject: Re: Overturning Slaughterhouse: Resistance to incorporating 9th
Amendment
I am not really sure what Miguel Schor is asserting here. Of course,
"originalism" as a name for a theory is used primarily in the United
States--although constitutional theorists and jurists in many other systems
with national courts have some awareness of our debates on these issues. To
determine whether Schor's assertion is verified by the evidence we would need
to have a working definition of originalism and then determine whether the
practices of other national systems that can be characterized as achieving some
minimum level of the "rule of law" do or do not conform to the requirements of
the theory. If we characterize originalism as the conjunction of the fixation
thesis (linguistic meaning of the text is fixed at the time of utterance) and
some version of the constrain system (there is a defeasible obligation to
conform legal practice (doctrine and application) to the linguistic meaning,
then I think it is actually the case that most
national legal systems are "originalist."
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