Green's View of Constitutional Meaning
whoooo26505 at yahoo.com
Wed Apr 22 16:44:16 PDT 2009
"Anthropological meaning" refers to the things that the language culture means when it uses the term. Because of the way most concepts work, this is a cluster, which means two things: (a) membership has only a family resemblance; and (b) what member or combination of members is being referenced can vary at any given time.
When generation-1 says "reasonable search," "cruel punishment," "excessive fines," "right to counsel" "religion," etc., they have for each of these terms various kinds of protocol that could comply. Same with "dog" or "chair." The mistake is to treat the protocol that they select as the DEFINITION or meaning of the term. Culture determines the meaning of words, not the protocol selection. If generation-1 wants to codify its protocol, it can do that directly in law by passing sentences like "branding is allowed" or "always use warrants" or "counsel is privately retained only." So long as it does NOT codify its protocol, any subsequent generation -- like any language user -- is free to enact its own protocol consistent with the family of uses of the words in question. The words "cruel" and "unreasonable" are not that different today as ideas compared to back then. If you could talk on the telephone to someone in 1787 (just pretend) and would say in
ordinary language, "gosh it's cruel not to give a foreign person meals from his homeland," you not only would be perfectly understood, but you might just get some agreement. And you would be understood because this sense of cruelty that you are conveying is in the family resemblance. It's in the lexicon. AND THAT IS ALL THAT MATTERS. It matters not one iota that the prior culture didn't want that cruelty product enacted. The law only calls for each generation to make a cruelty judgment, not to mimic the practices of the dead or invoke religiosity in constitutionalism.
The central fallacy of originalists is that they think that when a term passes the democratic ritual, its meaning is its intention, or its definition is what they do to implement the sentence. Only in fields like medicine are the meaning of terms the symptoms that get reported. The constitution cannot have meanings of ordinary sorts of words that are private or technical. Dogs = sean wilson's dogs. Chairs = whenzus. If it wants these things it needs to codify them. Otherwise, language anthropology tells us what is allowed.
Now, it is true that language changes over time. I've tried not to get into that because it opens a new can of worms. Right now, all of my examples concern different results for words that have NOT CHANGED.
I'm tired Chris. I'm going home.
Dr. Sean Wilson, Esq.
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: Wednesday, April 22, 2009 5:08:06 PM
Subject: RE: Green's View of Constitutional Meaning
I guess I'm still not understanding your hypothetical. If the reason small canines don't count as "dogs" is that you don't like them, it seems that you're imagining a world in which "dog" is (unchangingly) a normative term, meaning "good canine," and it is applied by people who have a different view about which canines are good, and so count as "dogs." Fine. Applying a normative term requires knowledge of normative reality, and the Founders could be wrong about that, just like they could be wrong about whether North Korea has ICBMs. Applying a term like that requires moral theorizing. Not a problem--see here at 626. But I still don't know what you're talking about with all the stuff about speaking in code and private languages and "anthropological meaning" and "sense of reference." It's just too cryptic.
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the Conlawprof