[Wittrs] Re: What is "Originalism" [Larry Solum's View]
- From: Sean Wilson <whoooo26505@xxxxxxxxx>
- To: conlawprof@xxxxxxxxxxxxxx, wittrsamr@xxxxxxxxxxxxx
- Date: Mon, 3 May 2010 13:32:40 -0700 (PDT)
Hi again Larry.
Been thinking about what you've said. Here's how I see the matter.
1. I can't bring myself to understand "semantic content" and "linguistic facts"
without examples. I refreshed my look at Dworkin's chapter in Scalia's, A
Matter of Interpretation (116), and see his point quite clearly. He
distinguishes between what we expect to happen from our directives versus what
we intended to say in the words of those directives. But I don't see how this
will help our discussion. Here's why.
Consider Dworkin's example. Imagine a board of directors that said to X, "hire
the most qualified." Imagine that the board thought that Graber should be
hired, because they thought him most qualified. But X thinks Solum is the
guy. You and I agree that who is hired is not the issue. It's whether X has
understood the language -- and has, as a result, behaved properly. You and I
also agree that if "most qualified" has a dominant cultural protocol in one era
but not in another, it is fine for eras to switch. So if test scores
are paramount for one generation, X might use that as his or her basis, but if
things other than tests are paramount in another era, X's progeny can use a
different criteria for "most qualified." In both case, neither violates the
language.
So far, no one has violated what you call the "semantic content" of "most
qualified." Now, let's up the ante.
2. Let's suppose X uses a minority (or non-standard) protocol that he or she
can defend, but that is not what most people at the time think to be the best
protocol. For example, let's say X uses "getting along with others and
promoting good morale among the other workers." And let's assume that most
people do not have this in mind when the law is announced. This gets us into
your "public understanding" issue. My point is simple: this cannot be a
LINGUISTIC criterion for meaning. We could never take the position that the
protocol in the minds of most people when they hear "most qualified" is what
the law actually is -- either then or now. Is this your position?
The reason why "public understanding" cannot be "semantic content" is very
simple. "Best qualified" works the same way as "lunch." The most dominant thing
eaten is not the meaning of the idea. And if someone has a protocol for "best
qualified" that is not popular, the only question for language is whether the
use of collegiality (and so forth) will be UNDERSTOOD when the person says
"I've chosen the best qualified." If the use of language is intelligible, it
has satisfied what language means.
Now, we can't confuse something here. If X's protocol (criteria) is such that
it produces a poor account of "most qualified" -- if it begins to make
a mockery of the idea -- all that can be said is that the CASUISTRY is POOR.
That X is a poor judge, so to speak. We can't say that X has violated language;
we can only say that X has poor faculties (or a bent perspective).
3. Note that for language to solve all of these problems, it needs to set
forth rigid nomenclature. And that brings me to Kripke
For words in constitutions to be Kripkean, the words need to be like
scientific jargon. They need to be reducible to atomistic things. So, for
example, words like "Schedule-2 Controlled Substance" qualify as
"protocol-bearing words." This means that they regiment another person's
behavior. They tell you how to behave, specifically. For something to be a
Schedule-2 substance, its has to be put there by the definition.
Words like this are not in the constitution. (Also, there isn't a definitions
section). This means that the American constitution is home to family
resemblance, and that anything that is intelligible in the words is
officially "there" as something we could theoretically pick, so long as what we
pick isn't polysemous (in the wrong family). That doesn't mean that any pick
would be wise, of course. What is good judging is not the same as what is
intellectually forbidden.
4. The last point of disagreement I have is with labels. Originalism cannot
mean merely that judges must follow language. It must mean something more. It
must mean that something from the past is more important than language -- that
something from the past governs language itself. Historically, this has meant
intentions of the lawgiver. In recent forms it has meant expectations of the
original publics or popular psychology about the protocol of ideas. None of
these things have anything to do with language.
And so the last point I would make is that if we extend "originalism" to cases
where a judge follows only language, we are going to need to invent a new word
for cases where they follow the ancients in celebration of whatever choices
language affords.
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: Lawrence Solum <lsolum@xxxxxxxxx>
To: Sean Wilson <whoooo26505@xxxxxxxxx>
Cc: conlawprof@xxxxxxxxxxxxxx; wittrsamr@xxxxxxxxxxxxx
Sent: Sun, May 2, 2010 9:47:59 PM
Subject: [Wittrs] Re: What is "Originalism" [Larry Solum's View]
Once again, I appreciate Sean's remarks. Of course, the phrase "public
meaning" is used by constitutionalist theorists, not philosophers of language.
But the idea, as opposed to the terminology, is well known in the philosophy
of language. So I suggest that we understand the phrase "public meaning" as
expressing the same idea as "conventional semantic meaning." That phrase is
widely used in the philosophy of language: even a casual search will reveal
hundreds of examples.
The notion that the meaning of both utterance tokens and utterance types can be
fixed is shared by a variety of approaches to the philosophy of language,
including the now-dominant "new theory of reference," pioneered by Kripke and
Putnam. Originalism requires only the notion that the meaning of a particular
utterance token (the text of a provision of the Constitution that was ratified)
can be fixed by linguistic facts (and by other facts as well) at the time of
utterance. This is perfectly consistent with the fact that words change
meaning over time--indeed, that fact motivates originalism.
Moreover, the position that Sean takes is mostly (perhaps completely)
consistent with the claim for which I have been arguing. Here writes:
>
>And what is critical is that, although the popular behaviors that exemplify
>"lunch" and "chair" today are DIFFERENT from 1787, there is no indication that
>even the sense of the idea is any different. And if it works like this for
>"lunch" and "chair," it seems to work the same way for "equal protection,"
>"privileges and immunities," "liberty," and so forth. Each epoch can have
>a different cultural regimentation for the same ballpark idea. You are not
>violating the language meaning by choosing an example different from the first
>generation, so long as they could understand your use of the idea in question.
>
Applications can change, while the linguistic meaning remains the same. The
"sense of the idea" (to use Sean's phrase) is the same.
I sense that Sean and I may be reaching dialectical impasse, but, as always, I
have learned from his remarks.
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