The Gravitational Force of Originalism

In Part I of this Article, I describe four aspects of the New Originalism: First, New Originalism is about identifying the original public meaning of the Constitution rather than the original Framers’ intent. Second, the interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry. Third, there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed. Finally, distinguishing between the activities of interpretation and construction identifies the limit of the New Originalism, which is only a theory of interpretation. In Part II, I then discuss how originalism can influence the outcome of such cases as District of Columbia v. Heller, McDonald v. City of Chicago, and National Federation of Independent Business v. Sebelius (NFIB). I suggest that, so long as there are justices who accept the relevance of original meaning, originalism can exert a kind of “gravitational force” on legal doctrine even when, as in McDonald and NFIB, the original meaning of the Constitution appears not to be the basis of a judicial decision

The Interpretation-Construction Distinction

The interpretation-construction distinction, which marks the difference between linguistic meaning and legal effect, is much discussed these days. I shall argue that the distinction is both real and fundamental – that it marks a deep difference in two different stages (or moments) in the way that legal and political actors process legal texts. My account of the distinction will not be precisely the same as some others, but I shall argue that it is the correct account and captures the essential insights of its rivals. This Essay aims to mark the distinction clearly! The basic idea can be explained by distinguishing two different moments or stages that occur when an authoritative legal text (a constitution, statute, regulation, or rule) is applied or explicated. The first of these moments is interpretation – which I shall stipulate is the process (or activity) that recognizes or discovers the linguistic meaning or semantic content of the legal text. The second moment is construction – which I shall stipulate is the process that gives a text legal effect (either my translating the linguistic meaning into legal doctrine or by applying or implementing the text). I shall then claim that the difference between interpretation and construction is real and fundamental. Although the terminology (the words interpretation and construction that express the distinction) could vary, legal theorists cannot do without the distinction. One more preliminary point: the topic of this Essay is narrow and conceptual. This Essay, has three goals: (1) to explicate the nature of the interpretation-construction distinction, (2) to argue that this distinction marks a real difference, and (3) to suggest that the distinction is helpful in that it enables legal theorists to clarify the nature of important debates, for example debates about constitutional interpretation. The Essay does not offer any particular theory of interpretation or construction – that it is, it remains agnostic about questions as to how linguistic meaning can be discerned or how legal content ought to be determined. Nor does this theory offer an account of the history and origins of the distinction. Those topics are important, but raising them in this Essay might shift attention away from prior questions about the nature and value of the distinction itself. Here is the roadmap. In Part II, this Essay shall discuss two preliminary sets of ideas: (1) vagueness and ambiguity, and (2) semantic content and legal content. In Part III, this Essay shall use these preliminary ideas to answer the questions, What is interpretation? and What is construction? In Part IV, this Essay shall consider some objections to the interpretation-construction distinction. In Part V, this Essay shall develop the argument that the distinction is fundamental and indispensable

An Algorithmic Approach to Information and Meaning

I will survey some matters of relevance to a philosophical discussion of information, taking into account developments in algorithmic information theory (AIT). I will propose that meaning is deep in the sense of Bennett's logical depth, and that algorithmic probability may provide the stability needed for a robust algorithmic definition of meaning, one that takes into consideration the interpretation and the recipient's own knowledge encoded in the story attached to a message.Comment: preprint reviewed version closer to the version accepted by the journa

Theories of vagueness and theories of law

It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, the metaphysics/metasemantics of (legal) content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law

Thoroughly modern Mannheim and the postmodern Weltanschauung.

There are a number of features of Mannheim’s method for the interpretation of weltanschauung that laid the foundations for his later sociology of knowledge and that could be considered as prefiguring the methodological principles of a postmodern world-view. Like postmodernists he stresses the significance of culture, and addresses the role of ideas and meaning in the form of society. His tripartite theory of meaning moves away from a determination of meaning by authorial intentions and towards the indeterminacy of documentary meaning. His theory of ‘relationism’ follows a similar pattern to the postmodernist concept of ‘difference’ and ultimately relies on immanent criteria of validity. Despite these continuities with postmodern perspectives I argue that Mannheim cannot be turned into a postmodernist because he seeks a foundation for meaning and its interpretation in historicism. Moreover, while his method analyses material objects and social subjects in the same way, he nonetheless maintains an ontological distinction between objects and subjects that distinguishes his approach from the hyperrealist perspective of postmodernism. If Mannheim cannot be claimed as a postmodernist before its time, his approach to analysing world-views reveals the modernist pretensions of theories that describe a postmodern weltanschauung as if the current epoch could be characterised in a unitary and coherent way

The Misconceived Assumption About Constitutional Assumptions

Both originalists and nonoriginalists alike often assume that background assumptions widely held when the Constitution or its amendments were enacted are part of the original meaning of the text. Originalists sometimes appeal to these background assumptions to render the meaning of more abstract words or phrases more determinate; nonoriginalist point to odious or outmoded assumptions as proof that original meaning is objectionable and should be rejected. In this paper, the author examines the proper role of background assumptions in constitutional interpretation when ascertaining the meaning of the terms, and in constitutional construction when applying this meaning to particular cases and controversies. Rather than present a normative argument on behalf of originalism, he merely tries to identify what the original meaning of the text really is—in particular, the circumstances in which background assumptions become a part of that meaning. While this analysis should be of obvious interest to originalists, it should also be of interest to any nonoriginalist who believes that the original meaning of the text is at least one factor or “modality” of constitutional interpretation to be balanced against other considerations. In Part I, the author explains how express and implied in fact terms provide the meaning of both written contracts and written constitutions. In Part II, he distinguishes this meaning of the text from the background assumptions that can result in the failure of a contract when circumstances arise about which the text is silent. Unlike contracts, however, with constitutions “failure” is not an option. Further, while background assumptions can be relevant to interpreting the meaning of ambiguous terms in both contracts and constitutions, most sustained disputes over constitutional terms concern, not the interpretation of ambiguity, but the construction of terms whose meaning is vague. Part III considers how one’s approach to the construction of vague terms will depend on one’s theory of constitutional legitimacy—that is, what makes a constitution “binding.” If, like contracts, the legitimacy of constitutions is based on original consent of the governed then, as with contracts, background assumptions can be viewed as silently conditioning that consent. On the other hand, if constitutional legitimacy is based on the justice of imposing laws on a nonconsenting public, then odious background assumptions are irrelevant to construing vagueness. This divide is illustrated by the antebellum debates over the constitutionality of slavery. Finally, in Part IV, this analysis is applied to three background assumptions: (1) that there are unenumerated natural rights, (2) that there is an unenumerated police power of states, and (3) that certain interpretive methods would be employed by courts

Realism about the Wave Function

A century after the discovery of quantum mechanics, the meaning of quantum mechanics still remains elusive. This is largely due to the puzzling nature of the wave function, the central object in quantum mechanics. If we are realists about quantum mechanics, how should we understand the wave function? What does it represent? What is its physical meaning? Answering these questions would improve our understanding of what it means to be a realist about quantum mechanics. In this survey article, I review and compare several realist interpretations of the wave function. They fall into three categories: ontological interpretations, nomological interpretations, and the \emph{sui generis} interpretation. For simplicity, I will focus on non-relativistic quantum mechanics.Comment: Penultimate version for Philosophy Compas

Incorporation and Originalist Theory

Does the Fourteenth Amendment of the United States Constitution incorporate the Bill of Rights contained in the first eight amendments? And how should an originalist answer that question? This paper focuses on the latter question--the issues of originalist theory that are raised by judicial and scholarly debates over what is called incorporation. The inquiry proceeds in six parts. Part I answers the questions: What is incorporation? and What is originalism? Part II examines the theoretical framework for an investigation of incorporation that operates within the narrow confines of interpretation of the linguistic meaning text based on the assumption that the original meaning of the text is solely determined by the public meaning for ordinary citizens at the time of framing and ratification. Part III relaxes the assumption that original meaning is determined solely by the linguistic practices of the whole community and considers the possibility that the phrase privileges or immunities was a term of art with a technical meaning for those learned in the law. Part IV relaxes the assumption that the incorporation debate must be resolved solely by interpretation of linguistic meaning and considers the possibility that incorporation doctrine might be viewed as a construction of an under determinate constitutional text. Part V considers the implications of the possibility that the privileges or immunities clause instantiates what might be called a failure of constitutional communication, considering the possibility of a saving or mending construction of the clause. Part VI concludes with why incorporation matters for originalists