Originalism, "Arms," and Family Resemblance

Fri Mar 5 08:21:07 PST 2010

I do not claim to be an originalist, because I am not sure what it means.  

History including historical context and  original meaning strike me as factors, not the only factors.  & I agree that the ultimate question is what do these words mean to us--but what does that mean?  It does seem to be legitimate to look for multiple sources of understanding the meaning to us of words in the text of the Constitution and that history and historical context is one source of understanding; precedent is another; and there are more. Courts appeal to history and have at least since John Marshall.  What sorts of problems influenced the writing of the provision?  Is this not a relevant question?  

If someone (Bork) says the words of the privileges or immunities clause of the 14th Amendment are an inkblot, is it legitimate to show that the words were commonly used to describe particular liberties in the Bill of Rights--running from early American history through the Civil War, in Court opinions (e.g. Palko and others), and e.g., in FDR's proclamation of Bill of Rights Day.  If this is to be ruled out, it is hard for me to see why.  Where exactly does Wittgenstein say that looking at usage is not a way to see how the language game is played?  (This is not a rhetorical question, I have only very slight knowledge of Wittgenstein).  If what the words meant in 1866-68 is a factor, then would not usage then be relevant?  

Whether 18th or 19th century common usage or any single factor should be controlling is another matter.  Even those who say it is, won't follow this approach consistently--see Scalia-- (a good thing at least sometimes) so they do their own picking and choosing.  

Judges invoke of principles in one context and then different values produce different decisions-- as in invocation of federalism to strike down the Gender Violence Act and ignoring it in striking down state tort laws as preempted by language that does not seem to do that.  Complaining about less textually explicit rights for gays (Lawrence) and finding them for states (Alden v. Maine).

Michael Curtis

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Patrick Wiseman
Sent: Friday, March 05, 2010 8:10 AM
To: CONLAWPROF at lists.ucla.edu
Subject: Re: Originalism, "Arms," and Family Resemblance

The way I prefer to make Prof. Wilson's point is simply to say that
our interpretive task is to figure out what the Constitution means
(now, to us), not what it meant (at some other point in time, to
someone else).

Patrick
-- 
Patrick Wiseman
Professor of Law
GSU College of Law

On Thu, Mar 4, 2010 at 11:14 PM, Sean Wilson <whoooo26505 at yahoo.com> wrote:
> (Mark)
>
> .. a couple of comments.  (Not intended to convert anyone, just to share).
>
> 1. I haven't proposed a method for analyzing language. I'm Wittgensteinian; we don't do that. In fact, what I have tried to get you to see is that you are the one who is proposing an orthodoxy here. One does not need a method or orientation for knowing family resemblance terms; that's precisely their beauty. In fact, if you try to impose an orthodoxy, you end up creating an ideology of some sort. At some point, you originalists are going to have to come to terms with the fact that your constitution is framed in an ordinary and general parlance. And that there is absolutely nothing in language which would say that the meaning of such words are found in any example of them chosen by people at any discreet point in time.
>
> 2. I also must note two things here. The real effect that neo-originalism has upon ordinary words is to invent a belief system that can transform them into technical or jargonized words. But because they are not, in fact, these kinds of words in the language culture, what this amounts to is turning them into a kind of secret code. Imagine someone saying that the meaning of "lunch" is what the founders ate. Or that, the original meaning of "food"  included a heavy diet of corn. If one accepts this, these words now have a sort of meaning that resembles a secret-code or secret-society of some sort. It feels like it confuses citizenship with membership in the Masonic Lodge or something. (The lawyers are here to tell us the secret Masonic meaning of "arms" and "speech" after we put on our lodge hats).
>
> Note also that this desire for technicality and precision in law is a product of the positivistic age. That is, you originalists today who promote this are a product of the current, post-industrial, post-Roosevelt, positivistic legal regime. So you expect "law" to regiment in the way, say, medicine does. You want phrases like "Schedule-II Controlled Substance" that has its meaning spelled out in paragraph (a), sub-section what-not. What you want in a way is to have you cognition regimented by words. You want law to tell you what to do. That's fine. That's all well and good.
>
> But the problem is that your constitution doesn't do that with its language. So you have to invent a way to prevent others from giving it the meaning LANGUAGE ALLOWS. Now, what troubles me about this is that, all the while, you pretend to be guarding its meaning. You pretend as if eating something other than the framer's lunch is somehow injurious to "lunch." This is the part that surely has to stop.
>
> 3. This idea that following a new example of an ordinary word is somehow "pouring new meaning" into the word is not something that can be supported in linguistics. There is no violation of "basic law" here, because law is only language. This is the same premise that allows you to be positivistic when words and phrases are rigid. Don't you see that? The same thing that allows one to say "Schedule II Controlled Substance is only what is written here" is the very same thing that allows one to say "family resemblance on this one, judge." Don't you see they come from the same system of thought? Originalists are the ones who are double talking as far as jurisprudence goes. You want to be religious with your constitution, yet positivistic with your statutes.  One involves metaphysics and conjuring, the other "just reading." In one instance, Law is like serving a deity; in the other, it is only the cold, naked words.
>
> 4. The only time we really indulge historicism for purposes of meaning (outside of religion and metaphysics) is for celebratory purposes. For example, "Jefferson's Constitution." Or, what civil rights meant to Dr. King. That is, we sometimes indulge person-specific psychology in meaning for artistic purposes.  We cannot do this in law, because idolatry is not its vehicle. It would make the whole thing look like religious or cult worship, or authoritarian propaganda (See Saddam Hussein). Hence, we leave this sort of device only for art appreciation or theatrics or drama.
>
> Regards and thanks.
>
> Dr. Sean Wilson, Esq.
> Assistant Professor
> Wright State University
> Personal Website: http://seanwilson.org
> SSRN papers: http://ssrn.com/author=596860
> Discussion Group: http://seanwilson.org/wittgenstein.discussion.html
>
>
>
>
> ________________________________
> From: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
> To: Sean Wilson <whoooo26505 at yahoo.com>; conlawprof at lists.ucla.edu
> Cc: wittrsamr at freelists.org
> Sent: Thu, March 4, 2010 9:04:54 PM
> Subject: RE: Originalism, "Arms," and Family Resemblance
>
>
> Hello Sean. I'm sorry, but I don't find your method of analyzing language to be authoritative for purposes of constitutional law. I also think it is not at all surprising that a society that adopts basic law (a constitution) would expect that law to be persistent even when a new generation arises that knows not Madison. If each new generation gets to pour new meaning into the old wineskins of constitutional provisions, the system will be inclined to rupture, as those of us who decline to be governed by the new rules that are thus created object to the creation of the new rules. (There is of course the question of who within each new generation gets to do the pouring; if it's the courts, then I want the judges to be elected, and I think I want a hefty supermajority of those elected judge/legislators to have to agree before new meaning can be thus poured.)
>
> Mark S. Scarberry
> Pepperdine University School of Law
>
>
>
>
> ________________________________
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sean Wilson
> Sent: Thursday, March 04, 2010 9:58 AM
> To: conlawprof at lists.ucla.edu
> Cc: wittrsamr at freelists.org
> Subject: Originalism, "Arms," and Family Resemblance
>
>
> Hello Mark.
>
> In your comment below, you use this language: "[Sean's point of view is that] we can't really be bound by what the persons who adopted authoritative language meant by that language." Two issues: language and generations.
>
> LANGUAGE
> For family resemblance terms, there is no meaningful difference between our use of such words and theirs, even though the example of it differs. This is the same as my use of the word "lunch" and yours, where we eat different things. The fallacy here is to think two things: (a) that language must be a picture of something empirical in the word (essentially, a reification problem); and (b) that its meaning is given to us by the examples and behavior of forebears. Point (a) is a common mistake; point (b) is a dogma.
>
> Hence, the term "arms" in language can mean a family of things and has different senses. The persons who enshrined this language into law did nothing but enshrine a family of things, and then merely chose as their protocol one example of it. We understand this uncontroversially when we leave constitutions and look at statutes, where we see elaborate definitions and legalisms. The constitution doesn't come to us that way -- it comes only as generalities. In this situation, the language doesn't mean how a prior generation behaved under those generalities, any more than what you eat for "lunch" must be the thing the prior generation ate, or else you are violating the meaning of "lunch." Family resemblance terms don't work like that.
>
> GENERATIONS
> If you think about it, it is extremely strange that a current generation of Americans would be told by someone that they were legally bound to follow the choices of their father's and forefathers with respect to anything. Even in American families, this isn't much of an ethic anymore. At best, the choices of forefathers are offered only as examples or suggestions. And if you look at social institutions that actually do bind their progeny -- the Amish, fraternities, religious sacraments, etc. --  you can clearly see that neither the democratic ritual nor its resultant legalism is concerned with it. All that generations do through constitutions is pass along a linguistic framework from which subsequent ones can choose to follow existing examples or pick new ones. There is nothing in law or language that requires otherwise.
>
> So if one is going to get "up in arms" because we today have chosen examples different from the likes of Patrick Henry and Bushrod Washington, one would want to know what on earth is the cause of this misplaced political enthusiasm. It probably is very simple: we live in peculiar times in American history. We live in an epoch where segments of American conservatism  (a.m. radio and teabaggers) have become so indulged with cultural idolatry that they think "law and language" requires imitation of the hegemonic beliefs and practices of agrarian society in the late 1700s. What I hope happens in the future is that the law professor academy would come to universally understand that the meaning of a family-resemblance word is never the imitation of another's discreet example of it.
>
> There is no significant mystery about what "arms" means.  Any English speaker has a decent understanding of the idea. There is only the question of what sense to give it when justices choose to speak the language in decisions. They can give it good or bad sense. This is the same choice that you and I have when choosing to use the expression in language.  So the question is never "what it means," but always whether the use of it by justices amounts to a reasonable sort of vernacular.
>
> Regards and thanks.
>
> Dr. Sean Wilson, Esq.
> Assistant Professor
> Wright State University
> Personal Website: http://seanwilson.org/
> SSRN papers: http://ssrn.com/author=596860
> Discussion Group: http://seanwilson.org/wittgenstein.discussion.html
>
>
>
>
> ________________________________
> From: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
> To: conlawprof at lists.ucla.edu
> Sent: Wed, March 3, 2010 10:47:33 PM
> Subject: RE: Originalism and Arms
>
>
> I'm afraid that a thorough-going acceptance of Sean's point of view -- that we can't really be bound by what the persons who adopted authoritative language meant by that language -- would lead to a more literal application of his conclusion than he might have intended: We might indeed be "free to make [our] own arms choices." That is, we might need to take up arms of our own choice to preserve what we thought was the constitutional order. But thankfully there is no such need for another armed American revolution.
>
> Mark Scarberry
> Pepperdine
>
> ________________________________
> From: conlawprof-bounces at lists.ucla.edu on behalf of Sean Wilson
> Sent: Wed 3/3/2010 3:15 PM
> To: conlawprof at lists.ucla.edu
> Subject: Originalism and Arms
>
>
> (Eugene)
>
> ... a minor quibble. It's doubtful that a "scope question" is limited by the "historical meaning of arms," unless one is wanting from the start to imitate the culture of the forebears for some reason (see Colonial Williamsburg). But lacking an interest in drama or theatrics, one would rather say that, if the scope is to be limited by legal words at all, it should be limited only by whatever meaning "arms" has in the English language culture -- which is a family resemblance (and always has been). In other words, any sense that "arms" has in the lexicon is available to this generation to use, just as it would be if one were choosing to speak the word. The only linguistic limitation here is that the sense we choose is understandable to the original generation. They wouldn't have to agree with it, just understand the expression. That is all that language ever requires of its users. Once you begin using a word with a sense that
>  has no understanding to others versed in the same language as yours, only then can you say that you are "cheating language."
>
> Here's what I want to say: there is no such thing as incorrect sense of "arms" in language where the same is cognizable to others in the language game -- i.e., where the sense is redeemable for cash value in the language marketplace. Rather, there are only good and bad PERFORMANCES of language. Think of it as art. What this view reduces to, I think, is saying that the sense we choose should have semantic integrity -- or, that it should be a good example of the aesthetic. This view allows both law (language) to exist while allowing for generations to "cheat" by picking cases of sound policy that interact with respectable linguistics.
>
> And let me say this. Those of you who want the arms protocol of the past to govern us today, as opposed to an arms protocol we select, really have to tell us WHY we should follow the forebears for reasons other than language. Because those reasons are flawed. Originalism can never come to you by means of language authority. It must always come, if at all, on its own terms.
>
> The simple fact of the matter is that no person of this generation is bound by the arms choices of the past. They are free to make their own arms choices.
>
> Regards and thanks.
>
> Dr. Sean Wilson, Esq.
> Assistant Professor
> Wright State University
> Personal Website: http://seanwilson.org/
> SSRN papers: http://ssrn.com/author=596860
> Discussion Group: http://seanwilson.org/wittgenstein.discussion.html
>
>
>
>
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