Bound by Constitutional Text?

Christopher Green crgreen at olemiss.edu
Tue Sep 21 11:45:04 PDT 2010


"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." 

Right.

"And because the langue involves family resemblance, the things given to us
by forebears are only examples of that language. Other examples are
possible."

This doesn't seem right.  Sufficiently-foresighted founders might give us
definitions, rather than just examples.  See
http://classics.mit.edu/Plato/euthyfro.html ("I did not ask you to give me
two or three examples of piety, but to explain the general idea which makes
all pious things to be pious. ... Tell me what is the nature of this idea,
and then I shall have a standard to which I may look, and by which I may
measure actions, whether yours or those of any one else, and then I shall be
able to say that such and such an action is pious, such another impious.").

-----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 1:30 PM
To: conlawprof at lists.ucla.edu
Cc: metalaw at freelists.org
Subject: Re: Bound by Constitutional Text?

... 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 New Discussion Groups!
http://ludwig.squarespace.com/discussionfora/




----- 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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