Green's View of Constitutional Meaning

Tue Apr 21 12:53:26 PDT 2009

I'm not sure I buy into the plausibility of a lot of Wittgenstein's views
enough to say much that would be helpful at this point.  I did want to
clarify my position, though.  You say, "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."  That's
not my view.  I think that the founders were eminently capable of "asserting
principles inconsistent with those on which they were acting," and that the
founders' understanding of the application of their language, even to
motivating paradigm cases, can sometimes be wrong.  See here
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=798466>  at 579-90.

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sean Wilson
Sent: Tuesday, April 21, 2009 1:39 PM
To: conlawprof at lists.ucla.edu
Subject: Re: Green's View of Constitutional Meaning

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 <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
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1227162> here at 21-22. 

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