Bound by Constitutional Text?

[Christopher Green]

"[T]he sense of any particular expression is itself required to be spelled
out in the language that is codified -- using rigid nomenclature."  

Why think that?  Doesn't seem plausible to me.

"We understand this perfectly well when lawyers devote their attention to
things like the UCC, the Federal Sentencing Guidelines, etc."

I don't think that's right.  There are lots of cases that struggle with
interpreting the UCC and sentencing guidelines, and I don't think there's
any generally-acknowledged rule of explicitness in them.  Never ran across
any cases like that in the UCC course I teach, for instance.

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sean Wilson
Sent: Tuesday, September 21, 2010 1:17 PM
To: conlawprof at lists.ucla.edu
Cc: metalaw at freelists.org
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
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________________________________
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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