Bound by Constitutional Text?

[Sean Wilson]

... just to be clear on this, what I mean is that the bits and pieces of 
historical evidence that allow one to construct a "sense" of an expression -- or 
to make the expression fixed upon some specific object -- are not, themselves, 
ever blessed by the ritual. It's really the same argument that Scalia makes 
about Congress and its intentions. If you cannot say what you mean in the 
blessing ("the ayes have it"), you have, by definition, left it for others to 
pick among the possible things that the general words could be said to have 
said.

Here's what I want to say: the oath isn't a loyalty to a prior age or culture or 
set of minds. It is a loyalty only to things that can be said to be in the 
document's language. And because the langue involves family resemblance, the 
things given to us by forebears are only examples of that language. Other 
examples are possible.

And so, if you don't say exactly what you mean when passing law, you can't claim 
that the things left out of the ritual are secretly hiding there. They aren't, 
by virtue of how legalism works.  
 

Regards and thanks.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
  (Subscribe:  http://ludwig.squarespace.com/sworg-subscribe/ )
SSRN papers: http://ssrn.com/author=596860
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----- Original Message ----
From: Sean Wilson <whoooo26505 at yahoo.com>
To: conlawprof at lists.ucla.edu
Cc: metalaw at freelists.org
Sent: Tue, September 21, 2010 2:17:05 PM
Subject: Bound by Constitutional Text?

(responding to Chris Green)

... except that, in positivistic legal systems, the sense of any particular 
expression is itself required to be spelled out in the language that is codified 


-- using rigid nomenclature. This is why legalism appears the way it does, and 
why the craft of lawyering is sometimes considered "pedantic." We understand 
this perfectly well when lawyers devote their attention to things like the UCC, 
the Federal Sentencing Guidelines, etc.

However, if the ritual of "passing law" results in an expression where its sense 


is not codified -- but lies in bits and pieces here and there (in history) -- we 


are left with choosing among a broad family of things to say what the general 
words amount to.  This is because of how positivism treats the ritual of 
"passing law" (how the activity of  "passing law" works).  The issue with 
originalists, therefore, may not only be a language fallacy; it is that they 
treat the ritual of "passing law" the way one would the passing of a sacrament. 
The activity becomes metaphysical rather than legalistic.

So much of the confusion of originalism centers upon what actually takes place 
in the democratic ritual (the "ayes" have it). 


(P.S. Sent to Meta Law)

Regards and thanks.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
  (Subscribe:  http://ludwig.squarespace.com/sworg-subscribe/ )
SSRN papers: http://ssrn.com/author=596860
New Discussion Groups! http://ludwig.squarespace.com/discussionfora/




________________________________
From: Christopher Green <crgreen at olemiss.edu>
To: conlawprof at lists.ucla.edu
Sent: Tue, September 21, 2010 1:57:39 PM
Subject: RE: Ratifier Intent.


But unpacking "this Constitution" tells us what officials are  bound to in the 
Article VI oath--as I see it, the meaning historically expressed  by the 
constitutional text.


      
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