Bound by Constitutional Text?

[crgreen at olemiss.edu]

On Thursday 09/23/2010 at 4:23 pm, Sean Wilson wrote:
> Chris.
>
> As I understand the matter, this is your claim: when language is 
> ambiguous or
> capable of different senses, that its true meaning (or correct sense) 
> can be
> found in "historical context." Although we need examples to flush this 
> out, I
> have two basic replies.
>
> The first is that this only works with polysemy.
Sounds fine, though I'm not sure what you mean by "polysemy."  Some 
language can express different senses in different contexts.  David 
Kaplan put it in terms of a term's "character"--a function from 
contexts to senses.
> Short of that, one would need
> to have the details of what you are calling "context" spelled out in 
> law so that
>
> it, itself, can be enacted.  Secondly, I see no practical difference 
> between how
>
> one thinks of "intent," "context" or "expectation" when talking about 
> what "the
> law is."
Context is just the historical setting in which language is added to 
the Constitution.  That's totally different from intentions or 
expectations.

> All of these "mind terms" are subject to the Scalia principle (for
> statutes). Lawmakers never enact their their subjective intentions, 
> assumptions,
>
> contexts, etc. They only enact language. Therefore, if a generation 
> passes a law
>
> containing very general words, yet actually means something specific, 
> it is not
> the specific thing that is the law.
Right.  That's my main point in using the sense-reference distinction. 
 See http://ssrn.com/abstract=1658010  at 8-9 n.14 for more.
> Instead, the specific thing is merely the
> favorite CHOICE (for that epoch) of the thing that is enacted.

I disagree here.  That's a false dichotomy.  The sense expressed by a 
term in a particular setting is distinct from the specific thing 
framers have in mind, but the specific thing isn't just a favorite 
choice; it's the result of plugging the facts as the framers saw them 
into the textually-expressed function from possible worlds to specific 
things.  See http://ssrn.com/abstract=798466 for lots more.
>
> Examples.
>
> (a) The framers pass a law that says, "republican government requires 
> civic
> virtue." (See prior mail). If our cultural arrangement becomes more 
> Roman, the
> sense of virtue could change over time, because the framers had never 
> enacted
> their cultural arrangement into the sentences that form this law. The 
> same is
> true if our culture becomes more pious. Because both a roman sense of 
> virtue and
>
> a pious sense are within the family resemblance of "virtue," either 
> can be
> reasonably said to be the meaning of "virtue" in our language 
> arrangements.
If "virtue" means "bearing a family resemblance to example X," fine, 
but not all terms are like that.
>
> (b) The framers say, "children in public schools shall be provided 
> lunch." The
> framers have in mind corn, milk and other staples of 18th century 
> midday
> nourishment commonly given to children. If the sense of "lunch" 
> changes over
> time and some children are given vitamin bars, the law is not 
> violated, because
> the framers have only placed the "lunch concept" into law.
If "lunch" is a family resemblance term, which I don't think all 
constitutional terms are.
>
> To enshrine a context into law, you need to pass extremely complicated 
> sentences
>
> (legalisms). And inasmuch as constitutions are sort of "the law for 
> the
> law-making process," my sense is that enshrining a cultural regiment 
> or protocol
>
> would never work. It seems only to work with passing concepts and 
> ideals.

I've never really understood all of this "protocol" talk and what 
basis there is for it.
>
> What I want to say here is this: Constitutions and Wittgenstein seem 
> made for
> each other.
Doesn't seem that way to me--I have a short paragraph on Wittgenstein 
in http://ssrn.com/abstract=1658010 at 8 n.14, FWIW.
>
> 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/
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/conlawprof/attachments/20100924/11f459b0/attachment.htm>