Green's View of Constitutional Meaning
stevenjamar at gmail.com
Wed Apr 22 14:43:48 PDT 2009
Words have meaning, but they are ultimately only symbols for the meaning.
Founders could have intended (at least) two different meanings by choosing
a particular word: (1) The word "dog" means only "big dogs of breeds in
existence at the time the word was used" and was intended to mean that for
all time; or
(2) The word "dog" right at the time of the founders meant one and only one
thing: "big dogs of breeds in existence at the time the word was used", but
they understood that terms, even nouns like "dog" changes what it refers to
over time as new breeds come along and as people see various things as being
in the category or not differently over time. This can come about from word
meaning drift (includes big and small dogs; or includes all canines; or
includes all domestic pets generally; or includes people who do uncouth
things; or includes people who are particularly faithful to another person;
etc.) or from changed circumstances (new breeds are created).
The IP clause of the constitution uses words that mean something quite
different today from the time they were written ("promote the progress of
science and the useful arts"). Then "science" meant much of what we would
today call philosophy and knowledge in general and "useful arts" meant
technology, metal smithing, and such (more craft than what we generally
think of as "art"). They certainly did not know of the term "intellectual
property" -- a term of quite recent common usage. They did know of the
terms "copyright" and "patent" (though the latter included some things quite
different from what we think of today when using the word).
As I see it, the problem is just when are we to be bound by a narrower
original meaning and when are we to use broader or different current
meanings. I think philosophy and linguistics and history and etymology can
help bring this problem into focus, but cannot themselves provide a solution
for a couple of reasons.
First, the meanings and intentions and applications and circumstances
themselves change in such unforeseeable ways that rigid binding would be
unworkable (as it has proven to be).
Second, intention as to the meaning of the word as to whether it is to be
the general word meaning or a circumstances-now meaning (think of equality,
liberty, arms) will not always be clear, and indeed intentions may be
unknowable. Surely "arms" were understood to refer to things beyond those
in existence at the time. But "arms" is not of the same order as "religion"
or "equality" or "liberty" or "cruel and unusual punishment." The words are
by their very nature pointing to or standing as symbols of different sorts
Third, the drafters of the constitution, while pretty smart folk, did not of
the understanding of linguistics and philosophy and words that we do (or the
philosophers and linguists among you (I can't include myself there). So we
should not expect them to have the sort of intention with respect to meaning
that these sorts of understandings might impute to them.
We know the founders intended the document to be durable and to apply to
changing circumstances. We don't know and can't know (except apparently
Justice Scalia) what they would have done faced with current circumstances
either with respect to how to apply the meaning of the words themselves to
changed circumstances or with respect to what they would do in light of 200+
years of experience with varying interpretations.
How should search and seizure apply to cars? (see recent gant case).
Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice
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