[Wittrs] Re: What is "Originalism" [Larry Solum's View]
- From: "Rosenthal, Lawrence" <rosentha@xxxxxxxxxxx>
- To: <lsolum@xxxxxxxxx>, "Sean Wilson" <whoooo26505@xxxxxxxxx>
- Date: Sun, 2 May 2010 14:36:00 -0700
I am certainly not competent to engage in the theoretical debate between
Professor Solum and Dr. Wilson. But I do think that Professor Solum's last
point may explain why some of us suspect that the so-called New Originalism
provides no greater constraint that nonoriginalism, at least as both are
typically practiced.
An originalism based on the original intentions of the framing generation, as
reflected in the original expected applications of constitutional text, would
of course produce substantial constraint, and much different outcomes than
those generally advocated by nonoriginalists. But, as Professor Solum points
out, the current generation of originalist scholars, in the main, rejects
"original intended applications," and instead focuses on the original public
meaning of constitutional text, which can be applied much differently than in
the framing era if changed circumstances or understandings warrant. I wonder
if this approach is meaningfully different from nonoriginalism. Consider Jack
Balkin's claim that there is an originalist basis for a right to abortion. As
I understand his argument, it begins with the claim that the original meaning
of the Equal Protection Clause is to protect "equality," and then it sets
originalism aside and makes what a series of entirely nonoriginalist arguments
about how a prohibition on abortion denies women equality. Professor Balkin
also argues that the original meaning of the Privileges or Immunities Clause
(and maybe the Due Process Clause as well) is to protect rights regarded as
fundamental, and then makes a series of nonoriginalist arguments that amount to
the claim that since the framing era, the right to abortion has come to be seen
as part of a fundamental right of sexual autonomy. How would a nonoriginalist
approach the issue any differently? Nonoriginalists do not ignore text, even
though they think it has evolving content, and they typically make the same
arguments about equality and fundamental rights that Balkin advances. New
originalists concede that constitutional text can be vague or ambiguous, and
this may require nonoriginalist construction. Isn't that essentially the same
position as that of most nonoriginalists? It seems to me that all but the
most radical nonoriginalists agree that it is only the most open-ended texts
that are properly regarded as of an evolving character -- the same texts that
the New Originalists will generally concede are often vague or ambiguous
because the "original semantic meaning" is fixed at a high level of generality.
At the level of theory, there may be a sharp difference between New
Originalism and nonoriginalism, but when it comes to deciding actual cases,
isn't Professor Johnson right that original meaning is never where "the action"
is? Actual constitutional adjudication seems to always depend on the kind of
nonoriginalist arguments championed by Professor Balkin, at least when it comes
to the kind of open-ended constitutional text that nonoriginalists claim as
their domain.
Larry Rosenthal
Chapman University School of Law
________________________________
From: conlawprof-bounces@xxxxxxxxxxxxxx on behalf of Lawrence Solum
Sent: Sun 5/2/2010 2:07 PM
To: Sean Wilson
Cc: wittrsamr@xxxxxxxxxxxxx; conlawprof@xxxxxxxxxxxxxx
Subject: Re: What is "Originalism" [Larry Solum's View]
Once again, thank you to Sean Wilson for his very thoughtful comments, which
again deserve a far more thorough reply than I can provide on this occasion.
Ultimately, nothing hangs on the name we give a theory. Contemporary
originalism (the so-called "New Originalism" or "Original Public Meaning
Originalism") focuses on the original public meaning of each provision of the
constitutional text. My claim (which Sean disputes) is that the "original
public meaning" is the conventional semantic meaning as fixed by linguistic
facts as they stood at the time each provision was framed and ratified. So far
as I can tell, a generalized version of this claim (which accounts of the
differences between "original intentions of the framers," "original
understandings of the ratifiers," and "original public meaning" is one of two
focal points of the theorists who self identify as "originalist." The second
characteristic claim is that constitutional practice should be defeasibly
constrained by that original meaning of the text.
For this reason, I believe that the coined word "originalism" is now generally
understood to refer to views that affirm these two theses (fixation and
constraint). And therefore, I believe that my usage of the term "originalism"
is a fair one.
So when Sean writes,
It seems to me that for one to truly become "originalist," one must
leave linguistics altogether. That's the whole point, isn't it? That we cannot
take the meaning of the words in the Constitution as "their meaning," we must
delve into history and time in order to find the behavior and lives of dead
people so that we can pretend that ordinary words have fixed objects. We do
this not under warrant of any theory of language, but because this communion
with Noah is said to be what "law is."
I must respectfully disagree. The whole idea of the New Originalism as I
understand it, is to reject the equation of original meaning with original
expected applications, and to move instead to the linguistic meaning or
semantic content of the text. Originalism is not about "fixed objects" or
"fixed applications," it is about the constraining force of fixed semantic
content.
On Sun, May 2, 2010 at 3:51 PM, Sean Wilson <whoooo26505@xxxxxxxxx> wrote:
Hi Larry.
Thanks for your input. Let me offer this by way of brief reply. (Please
don't feel the need to answer if you don't want to).
My central objection to your view can be stated very succinctly. If
originalism is a theory about law that is predicated upon an accurate account
of linguistics -- which I contend it is not -- we could never call such a
thing "originalism." Rather, we should want to call it by either one of two
names: (a) the name of the purportedly-accurate linguistic theory; or (b) the
name for making sure judges get language right. Let me explain.
If you believe that family resemblance provides a loose structure for
words, and that this structure must be obeyed by judges whenever reading those
sorts of words, this would never be "originalist." It would be something like
"semanticist" (semanticistic?) or perhaps "cluster-theory interpretation"
(cluster-theory hermeneutics??).
Note that this works the same if family resemblance is not accurate
(say, if language was always determinate). Let's imagine a world where language
was Tractarian (meaning, a picture of reality). If, in fact, each use of
language matched some existing state of affairs in the world -- such that we
could form undeniable true/false propositions about the world -- the urging of
judges to be obedient to those propositions would not be "originalism." It
would be either a Tractarian or picture-semantic interpretive theory.
How about this: language only ever means what reasonable people of the
community say it means. This view is Russellian. So if one says that judges
should give words only their reasonable meaning, one is a Russellian
semanticist, not an "originalist."
It seems to me that for one to truly become "originalist," one must
leave linguistics altogether. That's the whole point, isn't it? That we cannot
take the meaning of the words in the Constitution as "their meaning," we must
delve into history and time in order to find the behavior and lives of dead
people so that we can pretend that ordinary words have fixed objects. We do
this not under warrant of any theory of language, but because this communion
with Noah is said to be what "law is."
Here's what I am trying to say: originailsm cannot come to anyone by
language, because there is nothing in language which says that meaning is
Amish. In fact, to say that meaning is Amish is to invite dogma. To say that
it is Tractarian or Russellian is only to invite error.
Regards and thanks.
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org <http://seanwilson.org/>
SSRN papers: http://ssrn.com/author=596860
Discussion Group: http://seanwilson.org/wittgenstein.discussion.html
________________________________
From: Lawrence Solum <lsolum@xxxxxxxxx>
To: Sean Wilson <whoooo26505@xxxxxxxxx>
Cc: conlawprof@xxxxxxxxxxxxxx; wittrsamr@xxxxxxxxxxxxx
Sent: Sun, May 2, 2010 3:01:50 PM
Subject: [C] [Wittrs] Re: What is "Originalism" [Larry Solum's View]
I regret that I cannot reply to Sean Wilson's point in detail. Let me
simply say three things.
First, I agree with Sean that "family resemblance" concepts (or words
and phrases) do pose an interesting challenge to the fixation thesis. There
are no fixed criteria for the determining the application of such concepts;
rather their applications are determined by the practices of the linguistic
community, or by "forms of life." Unlike Sean, I am skeptical of the claim
that most of the language in the constitution has this quality.
Second, I believe that Sean would agree that the meaning of a
particular utterance that employs a word or phrase that is a family resemblance
concept is "fixed" by linguistic facts at the time of utterance. Family
resemblance concepts are not utterly shapeless. To take Wittgenstein's
example, of "games." It might be the case that there are no features that all
games share, although there are a series of resemblances between particular
games that define a "family." But this does not imply that the meaning of the
word "game" on a particular occasion is not constrained by linguistic practices
at the time of utterance. Given linguistic practices today, some things cannot
count as "games"--goldfish, Pluto, and spark plugs. From my vantage point,
Sean's argument, if it were true, would establish that some words and phrases
have a certain amount of "looseness" built into them that goes beyond
vagueness. As I see it, if this claim were true, it
would require a careful restatement of originalism, but it would not
alter the core of the claim represented by the fixation thesis.
Third, it is important to distinguish between the different senses of
the term "meaning." I do not mean to claim that meaning is fixed in the
"applicative sense" of the word "meaning." It is the "linguistic meaning" or
"semantic content" that originalists believe is fixed by linguistic facts at
the time of utterance.
As always, I have profited from Sean's point. They deserve a full and
deep reply--which I hope I might offer on some future occasion.
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