Green's View of Constitutional Meaning

Sean Wilson whoooo26505 at yahoo.com
Tue Apr 21 11:39:20 PDT 2009


Professor Green:

Firstly, let me say that finding an analytic philosopher among law professors doing what in essence is jurisprudence with Frege and Russell is by far an improvement over what law professors have been doing for far too long in this area. And I don't include Dworkin as a "law professor" -- I rather think of him  as a philosopher (and a very good one at that). But my opinions aside (which I realize are far from important so far), let me now indicate what is problematic with your accounting of language: 

1.  Let's say I tell you to get me a chair. That's my command. Let's say you bring me something archetypal. (Extremely charish). The fact that you have brought me an exemplar does not mean that my word "chair" means an exemplar. Nor does it mean that if I specifically intend an exemplar that this intention can act as the meaning of the word "chair" when I say it. This is because "chair" is a word in English that connotes a family of things. And if we play a game where the command "give me a chair" is passed on to others, what is said to validly conform will be charishly things like thrones, recliners, barstools and even living-room beanbags. (Linguists like Stephen Pinker endorses this Wittgensteinian idea in Words and Rules).  

Therefore, the meaning of chair is never said to be my intention; the meaning is only its USE, which is a function of anthropology. If I want language to say "bring me an exemplar chair," then I have to form a much more complicated sentence. I might also have to use a rigid designator: "bring me a Whenzu Times Co Guest Chair Model with Cushion Backrest, Model WJ277572"  (see Kripke). 

If I just say "chair," look here to see what would comply with the meaning:  http://www.globalsources.com/manufacturers/Chair.html

2. With respect, here is your mistake. You think that if the generation that enshrines the command "bring me a chair," brings a Whenzu thingy 
(see link), that this is the "sense of chair." It quite clearly is not. If one were to say that the framers intended "chair" to meant the Whenzu sense, one would be proposing that the Constitution is some kind of elaborate code -- maybe something that only the masons know of when they dawn their funny lodge hats or something. (I don't know anything about the masons, so just go with me here).

Here is what I have said to you: both intentions and cultural protocol is irrelevant to someone who is trying to make words the unit of analysis. The only thing that matters is the anthropology of language. If, without changing the meaning of words, one generation could communicate to another -- both understand what chair means -- it matters not that one picks the Whenzu and the other the recliner. So what I have said to you is that you do not appear to recognize the significance of Wittgenstein (and I might even say Kripke). Frege is good, and I'm quite happy to be reading your three papers right now that I have downloaded. Very good stuff in there. But how about considering more of the man who both was a poster-child for, and then put an end to, the analytics? (I'm a Wittgensteinian). I'll be done with a philosophy paper on Wittgenstein, language use and originalism in about a week. Maybe you can have a look at it.  

Regards and thanks.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org
Daily Visitors: http://seanwilson.org/homepagelucy.html
SSRN papers: http://ssrn.com/author=596860
Find Wilson!: http://twitter.com/seanwilsonorg
 




________________________________
From: Christopher Green <crgreen at olemiss.edu>
To: conlawprof at lists.ucla.edu
Sent: Tuesday, April 21, 2009 11:59:23 AM
Subject: RE: Green's View of Constitutional Meaning


"What it means to be bound by a constitution is to be bound by the family resemblance of its language-concepts."  I'm not sure that "Officials shall be bound to support the family resemblance of the language-concepts contained in the text of this Constitution" is a good translation of Article VI, in part because I'm not sure what that means.  I'm more a Frege guy than Wittgenstein.  If Frege's basic account of meaning (as tweaked by later people like Carnap and Chalmers) is fatally flawed, so's my theory.

I'm not sure that "identical sense of reference" means.  My view is that the historic textually-expressed sense of constitutional language is interpretively binding, but not its historically-intended or historically-understood reference.  Or put another way, that the founder's analytic judgments of constitutionality are binding, but not their synthetic judgments of constitutionality. I don't mind saying that there's a division of labor between the founders and interpreters today, but I think that division of labor is established with the phrase "this Constitution," and we have to get into the details of that phrase in order to figure out exactly what that division is.
 

________________________________
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sean Wilson
Sent: Tuesday, April 21, 2009 10:39 AM
To: conlawprof at lists.ucla.edu
Subject: Green's View of Constitutional Meaning


What it means to be bound by a constitution is to be bound by the family resemblance of its language-concepts. So long as generations could in theory speak to one other with the same language meaning, they satisfy all that law requires. All that this means, in short, to be bound by a linguistic criteria for behaving.  Imagine a contract to hire an independent contractor. The  [laborer]  controls the details of the work, but labors under the general arrangement. So it is with constitutions across generations. The contract isn't violated because one painter has a different regimentation for the work. 

P.S., I think your idea that language must keep its identical sense of reference across time is interesting, but I think the failure here is to say that one creates a sense in language rather than an instantiation. If one were to follow this line of logic, one would turn the words of the constitution into the perpetual use of slogan or colloquialism -- into a sort of private language. An account of language can't say, e.g., that if I apply cruelty judgment 1, that this is now my "sense of cruelty." One can only say that it is my arrangement of the cruelty concept, which has a general sense that allows for a family of arrangements.    

The fallacy among many "originalists" is to believe that language is a picture rather than a codex.  
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org/
Daily Visitors: http://seanwilson.org/homepagelucy.html
SSRN papers: http://ssrn.com/author=596860
Find Wilson!: http://twitter.com/seanwilsonorg
 
Professor Green writes:  

What does it mean to be bound by a Constitution, if not to be bound by its meaning?  ...  See here at 21-22. 


      
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