Bound by Constitutional Text?

Wed Sep 22 11:14:32 PDT 2010

"In positivistic legal regimes, for law to have sense 1, 2 or 3, it must
explicitly enact (describe) those senses. If it doesn't, any sense of the
idea could be used and be obedient to 'virtue.' Keep in mind that I don't
say this a priori. I say it because of the way legal systems operate. This
exact ethic is what caused the legalism in the UCC or Federal Sentencing
Guidelines to be created. The premise is that law is only its language, and
that, to avoid family resemblance problems, the sense of the idea needs
specified. If the sense is not specified, the job of the judge is to pick
the BEST SENSE, which may or may not be the one drafters/approvers liked
best when they codified the naked words."

These assertions don't seen right to me, and I haven't seen anything like
this in the UCC or sentencing-guidelines cases I've read.  When words are
ambiguous--i.e., express different senses in different
contexts--interpreters have to figure out which sense was expressed in the
actual context, not just pick the one they prefer on normative grounds.
What case has ever said anything different?

"As any good Wittgensteinian could surely attest, words do not have
essences; they have GRAMMAR."

All I need is for words to have definitions, not essences.  I'm only citing
Plato to make the distinction between a definition and an example clearer.

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sean Wilson
Sent: Wednesday, September 22, 2010 12:55 PM
To: conlawprof at lists.ucla.edu
Cc: metalaw at freelists.org; wittrsamr at freelists.org
Subject: Re: Bound by Constitutional Text?

(reply to Chris Green, who has offered a point about language and law that
endorses definitions and essences.)

Chris:

There are two issues here as I see it. The first is one about language; the
other about law. I want to take the easy one first. 

LAW
Let's imagine that the framers placed the following sentence in the
Constitution: "Republican Government requires Civic Virtue." And let's
assume that right-wingers win the presidential election in 2012. And let's
imagine that, in 2012, they contend that the President has the inherent
power to prorogue Congress, even though such a right is not in the
Constitution. The right-wingers believe this because the country doesn't
have a right to a Congress, absent sufficient civic virtue. Further, the
power to prorogue can be traced back to the ancients, and so can the
ideology of republicanism and virtue. And let's assume that, for present
purposes, there is no issue about what "republican government" means (for
the moment) or what "civic" is doing in the constitutional sentence. Rather,
the only issue is what "virtue" means and whether Americans are devoid of
it.

Your contention reduces to this. If we can find a dominate sense of the
expression "virtue" either in the culture at large or in the
drafters/approvers in particular, that this sense is therefore ordained in
the law. My point is that it is not, by virtue of how legal systems work.
To understand this, consider the following senses of "virtue:"

1. Roman. "VEER-too." To show "virtue" in Rome, one had to show "strong male
bravery and soldiery." You had to be, in short, a butt-kicker. Soldiers
would be honored for displaying their virtue (being a "he-man") in battle. 

2. English. Control of the passions. Virtue is showing that your obsessions
and desires can be controlled.

3. Washington during the war. Virtue comes to mean sacrifice. Those who show
true virtue are those who will die for noble things. Jesus had exemplary
virtue.

In positivistic legal regimes, for law to have sense 1, 2 or 3, it must
explicitly enact (describe) those senses. If it doesn't, any sense of the
idea could be used and be obedient to "virtue." Keep in mind that I don't
say this a priori. I say it because of the way legal systems operate. This
exact ethic is what caused the legalism in the UCC or Federal Sentencing
Guidelines to be created. The premise is that law is only its language, and
that, to avoid family resemblance problems, the sense of the idea needs
specified. If the sense is not specified, the job of the judge is to pick
the BEST SENSE, which may or may not be the one drafters/approvers liked
best when they codified the naked words. This means that generations are
free to select examples of "virtue" since all that is codified is the idea.
This is consistent with Scalia's idea that lawmakers must say what they mean
(and mind-reading is not part of the judicial chore).   

LANGUAGE   
The other issue here is whether "virtue" -- or your example, "pious" -- has
an "essence," which would allow a true definition to reveal it. As any good
Wittgensteinian could surely attest, words do not have essences; they have
GRAMMAR. This doesn't mean, of course, that words are willy-nilly -- for all
words surely have moorings of a sort.  But what it means is that the
moorings are of a cognitive phenomenon that become manifested as family
resemblance (unless the words are Kripkean). 

Therefore, the specific answer to the question of "what makes all things
pious" (the issue below) is something inherently ANTHROPOLOGICAL and
COGNITIVE. Given what we know, it is a set of things -- a, b, c, d, e, f --
which are combined and substituted for any use. Some uses are {a, b, d, f},
some {a, b, c, d}, others {a, c, e}. To really know this answer, one simply
needs to see what humans are doing with the idea in the language game. As
Wittgenstein says, "don't think, look!"      

(P.S. sent to metalaw and wittrs)

Yours forever a Wittgensteinian, 

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: Christopher Green <crgreen at olemiss.edu>
To: conlawprof at lists.ucla.edu
Cc: metalaw at freelists.org
Sent: Tue, September 21, 2010 2:45:04 PM
Subject: RE: Bound by Constitutional Text?

"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/

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