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					          Today’s Lecture:




               Originalism




Session


 13
Language Determinacy
             Positivism’s Solutions for the
          Problem of Language Determinacy


 review
… we’ve been considering what positivism tells the judge to do …
        The new advertisement for judging

• Gods will?
       • Sacred Traditions, Customs?

          • Reason/Nature
                    • Logic?

                       • Science?


                     Law = words
                  Judging = reading
              The New Humpty




I can read and follow
      directions
              The New Humpty




                                     Question:
                                 Will this approach
                               work for Constitutional
                                     questions?

I can read and follow
      directions
Everyone
 Votes!
           1.   Yes, of course it will.   0
           2.   Hell no. Has no chance.   0
              The New Humpty




                               Question:
                            What does the 9th
                           Amendment provide
                                to you?


I can read and follow
      directions
    9th
amendment?
             0
             0
             0
              The New Humpty
                                    Question:
                                 What is cruel and
                               unusual punishment?”

                                     Question:
                                   Are campaign
                                donations “speech?”

                                     Question:
                                What is a reasonable
                                search and seizure?
I can read and follow
      directions
punishment,
speech and
  seizures    0
              0
              0
             Positivism’s Solutions for the
          Problem of Language Determinacy


Language rigidity
-- positivism has a central problem
-- The problem is that legal words are sometimes not clear at
all. This is especially true of Constitutional words.
                   The language continuum

 “indeterminate”
                                                   “Rigid”
Vague. Uncertain. Flowery. You
may need “vibes” to get it.                Fixed, certain referent



   Poetry               Statutes         Computer programming
                                              languages
                                           Mathematical notation
              Bible              Certain scientific words
                                     (“water is H2O)
      Constitutions
                                      Proper names
                   The language continuum

 “indeterminate”
                                                  “Rigid”
Vague. Uncertain. Flowery. You
may need “vibes” to get it.               Fixed, certain referent



   Poetry               Statutes        Computer programming
                                             languages
        The Point:                        Mathematical notation
              Bible            Certain scientific
       Legal words will have varying degree of words
       indeterminacy.              (“water is H2O)
      Constitutions
                                       Proper names
        The Constitution will have its poetic moments;
        statutes tend to be more clear (although not
        always).
             Positivism’s Solutions for the
          Problem of Language Determinacy


3 basic “schools”
-- positivism believes that indeterminacy can be overcome by
deploying one of three solutions

 Originalism

          Neo-originalism

 Analytic Positivism


 Inductive or Kantian Positivism
         Originalism” and Neo-originalism


language game
-- the term “originalism” was in common use when Reagan had
appointed Judge Bork to the Court.

-- (Bork was not approved by the
Senate)
-- back then, the term “originalism”
referred to the idea of the
constitution being what its framers
legislatively intended


-- hence, the original intent of the constitutional convention and
ratifying assemblies was paramount
        An introduction to a Semantic Game:
         Originalism” and Neo-originalism

language game
-- However, recently, a new version of originalism has arrived
on the scene, called neo-originalism.
-- The difference:
   • not concerned with the corporate intention of any political
   institution that framed the constitution
   • Rather, it is concerned with what the framing CULTURE
   thought about the constitution
-- A good way of speaking?    Originalism: Institutional Desires
                      Neo-Originalism: Cultural\Epoch Desires
   Originalism and Neo-originalism
                                       Thinking that this
                                       is paramount is
     political culture                 “neo-originalism”
                                       according to how I
                                       use that term.
 Political               Desires
Assembly




     Thinking that this is paramount is “originalism”
     according to how I use that term. That is consistent
     with what “originalism” has always been called.
        An introduction to a Semantic Game:
         Originalism” and Neo-originalism

language game

-- Caution: what anyone means by “originalism” today is in flux.
   (This generation of conservative law professors have made
   a real mess of this area)
-- The true meaning of “originalism” – the thing all versions have
in common – is probably:

                    Stagnating certain aspects of cultural
                       modernity as a political objective
                   through the use of idolatry for American
                                 Colonial era
                      Originalism


A Formal Definition
-- To understand what legal words mean, you should consult
the political assembly’s intention when interpreting the word

  Statutes     (speeches, floor debates, committee reports,
               etc.)


Constitution                 Question:
                        What would you look
                       at for the constitution?
 what do you
look for in the
 constitution     0
                  0
                  0
                      Originalism


A Formal Definition
-- To understand what legal words mean, you should consult
the political assembly’s intention when interpreting the word

  Statutes     (speeches, floor debates, committee reports,
               etc.)


Constitution    Madison’s Notes, letters written to one
                another, “pantheon evidence??” ,
                anthropological evidence?
                        Originalism


“Speaker’s Meaning”

-- To properly deploy this idea, one has to appeal to something
called “speaker’s meaning.”
-- Here is the idea …
   Speaker’s Meaning




Imagine two people speaking
   Speaker’s Meaning

    Communicative context


         Utterance



            Dialogue




Imagine two people speaking
   Speaker’s Meaning

    Communicative context


          Utterance
                 Basic idea –

                 1. It’s not the word, but the
            Dialogue
                    speaker’s intention that
                    constitutes the real meaning

                 2. The word is only trying to
                    facilitate the intention

               3. successfully-used words do
                   speaking
Imagine two peoplethis. Unsuccessful do not
                 Speaker’s Meaning

                  Communicative context
                              Apply this to Legislatures –
                        Utterance
                                1. We should apply this to legal
     Question:                     words and to political
What might be wrong                assemblies
with this viewpoint?       Dialogue
                                2. If we don’t understand what
                                   was said, let’s go looking for
                                   what was most likely MEANT
                                   to be said in those words

                                This is what the judge
                               3.
                               should do according to hard
             Imagine two people speaking
                               positivism
what might be
 wrong with
     this       0
 viewpoint?     0
                0
                    Originalism


Problems with Speaker’s Meaning

Institutional problems
   • Multi-membered declarant
       -- hard to have perfectly collective meanings that share
       specifics
       -- some participants may only have surface-level
       understandings
       -- some may only have thought intensively about one
       aspect of the bill, not every word
                    Originalism


Problems with Speaker’s Meaning

Institutional problems
   • Not possible to have institutional dialogue
       -- The judge can’t call them up and say, “Hey Teddy,
       what did you mean when you wrote this?”
       (the people are dead today, of course)
                     Originalism


Problems with Speaker’s Meaning

Institutional problems
   • Who are the framers?
       -- the person who introduced the legislation
       -- the people in committee who revised it?
       -- the people who passed it on the floor?
       -- the president who signed it (in the case of a statute)
       or the ratifiers who ratified it?
                    Originalism


Problems with Speaker’s Meaning

Institutional problems
   • What do you do with tie-breaker intentions?
       -- what if legislation doesn’t pass unless it gets watered
       down. Are the people who demand the watering down
       version the true light bulbs of intention?
                     Originalism


Problems with Speaker’s Meaning

Political Problems
   • What do you do with strategic behavior?
      -- logrolling, reciprocity
          (mention Bob Byrd)
      -- attachments
          (mention the federal sentencing guidelines)
          (mention funding for Heinz Field)
                     Originalism


Problems with Speaker’s Meaning

Political Problems

   Pollution in the record
   • Scalia mentions this on pages 32 and 33:
       -- Congressmen don’t read or approve of committee
       reports when they vote on bills
       -- The Committee reports are often politicized
       (people throw stuff in them to try to influence the courts.
       The idea is that what they can’t get passed on the floor,
       maybe they can thrown in by the courts)
                     Originalism


Problems with Speaker’s Meaning

Constitutional problems
   • There really isn’t a legislative record for the constitutional
   convention. All we have are Madison’s notes, published
   some 50 years later.
       -- adequate for history, but not the stuff you need for a
       good legislative record
                    Neo-Originalism


Retreat
-- New-age originalists tried to repair their orthodoxy. They did
so because of the following reasons:
   • claiming to “read minds” in law is problematic; it doesn’t
   seem objective (“psychoanalyze the lawgiver”) [too
   metaphysical]
   • it is especially bad for framers and for the Constitution
   … so what did they do?
                Neo-Originalism


Retreat

   For Statutes …     -- Become analytical. (Analytical
                      Positivists). Explained next time.
                      (in essence, are not originalists for
                      statutes – except, maybe, really,
                      really old ones)

For Constitutions …    -- do something rather strange …
                       (adopt a language fallacy)
         Picture-Theory of Meaning


              Liberty

                           Examine liberty behaviors –

                           1.

                           2.

                           3.



   Imagine two people speaking; but not
necessarily to one another (speaking about)
         Picture-Theory of Meaning


              Liberty

                           Examine liberty behaviors –

                           1.          Question:

                           2. What kind of behavior was
                              committed by people when
                           3.    they used the word
                                      “liberty”?


   Imagine two people speaking; but not
necessarily to one another (speaking about)
what kind of
behavior for
  “liberty”    0
               0
               0
         Picture-Theory of Meaning


              Liberty

                           Examine liberty behaviors –

                           1. slavery

                           2. women and patriarchy

                           3. no gay sex



   Imagine two people speaking; but not
necessarily to one another (speaking about)
         Picture-Theory of Meaning
                                        Question:
                                 Is this what the word
              Liberty               “liberty” means?

                           Examine liberty behaviors –

                           1. slavery

                           2. women and patriarchy

                           3. no gay sex



   Imagine two people speaking; but not
necessarily to one another (speaking about)
Everyone
 Votes!
           1.   Yes, it means how people        0
                behaved at a discreet time      0
           2.   No, it isn’t limited to that.
         Picture-Theory of Meaning


               Equal
             Protection
                           Examine equal-protection
                           behaviors –

                           1.

                           2.

                           3.


   Imagine two people speaking; but not
necessarily to one another (speaking about)
         Picture-Theory of Meaning


               Equal
             Protection
                           Examine Equal-Protection
                           behaviors –

                           1.         Question:
                              What kind of behavior was
                           2. committed by people when
                              they used the word “equal
                           3.        protection”?


   Imagine two people speaking; but not
necessarily to one another (speaking about)
what kind of
behavior for
   “equal      0
 protection”   0
               0
         Picture-Theory of Meaning


               Equal
             Protection
                           Examine Equal-Protection
                           behaviors –

                           1. voting for women?

                           2. no racial intermarriage

                           3. no school desegregation?


   Imagine two people speaking; but not
necessarily to one another (speaking about)
         Picture-Theory of Meaning
                                 Rhetorical Question:

               Equal             Is this what the word
                              “equal protection” means?
             Protection
                           Examine equal-protection
                           behaviors –

                           1. voting for women?

                           2. no racial intermarriage

                           3. no school desegregation?


   Imagine two people speaking; but not
necessarily to one another (speaking about)
         Picture-Theory of Meaning


               Lunch

                           Examine lunch –

                           1.

                           2.

                           3.



   Imagine two people speaking; but not
necessarily to one another (speaking about)
         Picture-Theory of Meaning
                                       Question:
                                What kind of behavior is
               Lunch            committed when people
                                 use the word “lunch?”
                           Examine lunch –

                           1.

                           2.

                           3.



   Imagine two people speaking; but not
necessarily to one another (speaking about)
what kind of
behavior for
  “lunch”      0
               0
               0
         Picture-Theory of Meaning


               Lunch

                           Examine liberty behaviors –

                           1. sandwich

                           2. Tacos

                           3. Spaghetti



   Imagine two people speaking; but not
necessarily to one another (speaking about)
         Picture-Theory of Meaning
                                 Rhetorical Question:
                                 Is this what the word
               Lunch                “lunch” means?

                           Examine liberty behaviors –

                           1. sandwich

                           2. Tacos

                           3. Spaghetti



   Imagine two people speaking; but not
necessarily to one another (speaking about)
         Picture-Theory of Meaning
                                      Question:
                              Can steak and potatoes be
               Lunch                   “lunch”

                           Examine liberty behaviors –
                                      Question:
                           1. sandwich vitamin bar be
                                 Can a
                                       “lunch?”
                           2. Tacos
                                         Question:
                           3. Spaghetti
                                 Can Fritos and a beer be
                                         “lunch?”

   Imagine two people speaking; but not
necessarily to one another (speaking about)
    steal &
  potatoes,
vitamin bar,    0
Fritos & beer   0
                0
     Wittgensteinian Notions

Meaning is Use                 Polysemy
Family
Resemblance       “chair”
 Wittgensteinian Notions



 Family Resemblance
-- Most constitutional words are family-resemblance kinds of
words (very ordinary words)

Liberty                                   Lunch

Rights                                     Chair

                                          Joy
Speech

“arms”

privileges and immunities
 Wittgensteinian Notions



protocol
-- The main criticism against neo-originalism is that it confuses
the protocol of a word with its meaning

 protocol       -- protocol is an EXAMPLE of the word
                (you could have other examples)


  e.g., “joy”    -- whatever one generation chooses for
                 this idea need not be what another
                 chooses, just as lunch need not be the
                 same for any two individuals
                          Neo-Originalism


    Retreat

        Original Intent       (old school originalism)

           Original              (supposed to be new school)
         Expectations
                                 e.g., “original policy expectations of
                                 the equal protection clause”
                                                  Question:
          Question:
                                        Does law require that anyone
Does this pretend to be about
                                         be obedient to the original
 language-meaning, or is it a
                                            expectations of any
  moral proposition in its own
                                                generation?
            right?
after the fact
                 0
                 0
                 0
                     Neo-Originalism


Antonin
Scalia

-- Leading proponent of “the new
originalism.”
-- believes that Constitution words
have to mean what they have
traditionally meant in American
history
 but he believes that the
 tradition in this respect IS   language fallacy?
 the meaning of the word
                   Neo-Originalism               Time



 real issue

-- What does the democratic ritual pass (the “ayes” have it)?
-- Does it pass along cultural protocol (the behavior of the
forebears), or does it simply pass along language (sentences)
-- Positivism is SUPPOSED to believe law is merely its words
(and nothing more)

                                     Question:
                            How does Scalia’s position
                           compare with classical legal
                          thought and with Blackstonian
                                    thought?
Scalia and
Blackstone
             0
             0
             0
END SESSION

				
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