Are previously excluded groups part of the "public" that determines meaning?

Sean Wilson whoooo26505 at
Sat Oct 17 14:41:54 PDT 2009

Hi Steve. 

I think it would be quite useful for lawyers and any academic whatsoever to have studied Wittgenstein. Indeed, Wittgenstein is really the new Plato, for people who are in the know. He ought to be required study for anyone exiting college and graduate school. No judge who sits to read words should be without some degree of Wittgensteinian skills. The insights Wittgenstein had as he traveled from analysis and logic, into meaning (and by implication, cognition), is a journey that any intellectual mind would want to follow. Indeed, one of the reasons we have a post-modern academy these days could probably be attributable to people half-understanding  Wittgensteinian notions. Once they get the other half, the irrational segments of post modernism will leave our culture. But the old mistakes will not return.

Regarding some of your specific concerns, I offer the following:

1. Wittgensteins views are not like normal philosophers. He does not offer "a theory," per se. He offers an insight and a technique. Anyone who thinks studiously about language will come to appreciate the new territory he entered. In this vein, it is helpful to note that many linguists pay homage to Wittgenstein. There is work done in the field on family resemblances, for example. Stephen Pinker mentions him. In many respects, Noah Webster and Samuel Johnson had made similar observations about language being what it does (hence the need for lexicographers). So my basic point to you is this: Wittgenstein is not offering some esoteric account of language. You don't need to be Buddhist here. It doesn't require a conversion. It just requires some thinking about things. If there were classes on Wittgenstein, language and law, people could be sensitized better.

2. The framers did not need to have any theory in mind when using language. That's the beauty of it. The brain is hardwired to do it. The fact that you can read words from the past and pick up the gist -- sometimes, with help of historical lexicography -- is testimony to the wonderment of language. The Constitution contains no technical code. We don't need a code-breaker. What we need is to clear ourselves of the nonsense that the meaning of ordinary words requires an imitation of the lives and behavior of forebears. 

3. A Wittgensteinian constitution is extremely workable.  1. Avoid polysemy. 2. Select a sense or use of a constitutional word that could be understood back in the day (my "telephone test"). 3. For which exact sense or use -- that is, which specific protocol -- use astute or prudential policy analysis, paying particular attention to the concerns of the relevant aesthetic community (legal culture and so forth). [Here is where you would argue, e.g., that stability would want some relationship to the past].   

Extremely workable.    

Regards and thanks. And long live Ludwig.
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
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From: Steven Jamar <stevenjamar at>
Cc: conlawprof at
Sent: Sat, October 17, 2009 4:31:42 PM
Subject: Re: Are previously excluded groups part of the "public" that determines meaning?

But Sean, you are relying on unjustified premises including at least (1) that Wittgenstein is in fact relevant to the constitutional interpretation business, or (2) that if relevant, his typology would control interpretation of the constitution, or (3) that his typology is the one and only proper theory of understanding language, or (4) law professors could or would want to understand it, or (5) that that sort of philosophical/rhetorical/linguistic theory really applies in the rough and tumble worlds of politics, power, language, political theory, and history, or (6) that the framers, or apologists, or public or farmers or whomever were writing the words with Wittgensteinian  interpretation in mind.   


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