From an online source on "Constitutional Texting" by Lawrence B. Solum, University of Illinois College of Law -- as published in the San Diego Law Review, Vol. 44, p. 123, 2007 -- Illinois Public Law Research Paper No. 09-09
""Constitutional Texting" introduces an account of constitutional meaning that draws on H. P. Grice's distinction between "speaker's meaning" and "sentence meaning.""
Grice, 1948. Meaning
also his WoW 1967, 1987.
"The constitutional equivalent of speaker's meaning is "framer's meaning," the meaning that the author of the constitutional text intended to convey in light of the author's beliefs about the reader's beliefs about the author's intentions."
Notably Benjamin Franklin, the only man with the brains in _that_ crowd.
"The constitutional equivalent of sentence meaning is "clause meaning," the meaning that an ordinary reader would attribute to the text at the time of utterance without any beliefs about particular intentions on the part of the author."
Call him "ignorant". It's like reading a novel by Cortazar without _caring_ it's a novel by Cortazar.
"Clause meaning is possible because the words and phrases used in the Constitution have conventional semantic meanings - ordinary meanings in a natural language, English, as it was used at the various times when constitutional text was created and promulgated."
And recall Benjamin Franklin's clever arguments (he used to be a royalist) that Smith's idea of having Hebrew as the text of the constitution, 'would shall require some self-same type of difficoult [sic] machineerie of the type-writers to be used'.
"The meaning of the Constitution should be understood as clause meaning."
And that's a clause.
"This Gricean view provides foundations for the theory that is sometimes called "original meaning originalism" or "the new originalism.""
Or the original oxymoronism, original.
"This theory of constitutional meaning is developed in the context of commentary on Smith's recent book, "Law's Quandary.""
Now in paperback and soon to be released as a movie, with Michelle Pfeifer -- as "the Lawyer".
"Smith argues that the meaning of legal texts must ultimately be cashed out in terms of the intentions of some author or authors."
--- "or authoress!", Pfeifer screams on the screen.
"This essay examines that claim in depth and argues that Smith's view is mistaken."
Or else we would have no journal here. (Cfr. The Maxims of Blog -- disgress, hint at what you have no evidence for, etc. -- elsewhere -- Order pizza).
"The meaning of the Constitution is not determined by the semantic intentions of the drafters or ratifiers;"
I hope Kramer will protest! (as he comes out of the lift).
"rather, the best theory of the meaning of the Constitution is based on the ordinary or technical meaning of its words and phrases as they would have been understood by the relevant audiences, citizens and lawyers, at the times particular constitutional provisions were adopted and promulgated."
Relevant audiences mean: "non-Blacks" etc. "All men (white, etc.) are created equal" (Franklin, "The innuendo, "But some are created more equal", to be cancelled?).
"Part I is entitled "Introduction: Talking and Texting," and it introduces the Gricean themes of the essay in the context of "text messages" or "texting." Part II is called "Constitutional Texting" and it situates the essay in contemporary constitutional theory. Part III is "Smith," and relates the themes of the essay to Smith's book, "Law's Quandary," in the context of Grice's theory of meaning. Part IV is called "Framer's Meaning and Clause Meaning" and it
develops a Gricean and anti-Smithian
account of constitutional meaning."
which is an excellent thing to develop. Cfr. the uncharm of "develops a Smithian and anti-Gricean account of constitutional meaning". I mean, what gives?
"Part V is "Conclusion: How to Do Things with Clauses," and it argues that successful constitutional texting requires that framers and interpreters attend to clause meaning as the meaning of the Constitution."
which _sounds_ the Anti-Grice, but ain't!
Cheers for Solum!
JLS
--- "Keywords: constitution, constitutional theory, meaning, interpretation, construction, Grice, Steven Smith, sentence meaning, speakers meaning, clause meaning, framer's meaning, originalism, original intent, original public meaning, new originalism, Whittington, Barnett"
"Solum, Lawrence B., Constitutional Texting. San Diego Law Review, Vol. 44, p. 123, 2007; Illinois Public Law Research Paper No. 09-09. Available at SSRN: http://ssrn.com/abstract=993442".
"Lawrence B. Solum
University of Illinois College of Law
504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
HOME PAGE: http://lsolum.blogspot.com."
Subscribe to:
Post Comments (Atom)
Posts
There's also this link of
ReplyDeleteinterest:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1120244
-- where Solum expands on the source of it all, when back in the late 1970s, none other than good ol' Harvardite R. Albritton recommended Solum to read Grice.
Solum expands on Grice WoW on the distinction between expression and utterer's meaning. He rightly points how Dworkin can have the cheek (my word) NOT to quote Grice in his work, when it's all about utterer's meaning. Also interesting to Skinner and he having totally misunderstood Grice (who he thought a disciple of Austin!). So, a true gem of joy for the Gricean entre nous. Etc.
You guys make everything so complicated, and I think it's because you exalt those damn reifying nouns (e.g., "meaning") over verbs (e.g. "interpret.")
ReplyDeleteMy view is that we should try to act consistently with the intention of the Framers, but that does not mean that we should try to glean that intention in any way we choose. Rather, we must start at the meta level and ask "By what strategy can we best reach political peace as to whether we are interpreting the Consitution consistently with the Framers' intentions?"
Constitutions are interpreted by people. In a self-governing society, we must decide who will determine how the Constitution is to be interpreted, and who will do the interpreting. In the US, both of those logical devices are embodied in the same physical device: the judiciary - human beings, fallible and possibly political, and usually assumed by the population to be both.
There is no sarcasm in the Constitution, no wit, no irony. Why not? Surely, a facetious provision could be interpreted correctly if we were certain that it was so intended, certain on the basis of other writings of the authors. But the authors knew better. They expected, as eighteenth century lawyers, that their words would be literally interpreted, and they, therefore, can be assumed to have chosen them carefully to be so interpreted. That alone makes a literal interpretation of the text an excellent strategy - strategy that credits the Framers with writing in standard English with the intention that their words be understood in standard English. (Framers can have interpretive intentions as well as substantive ones.)
What, then, can be added by looking for "intention" somewhere else? The Framers can be assumed to have expected that there would be no such looking, and the lookers will be necessarily relying on much less reliable data than the text itself, making their interpretations both substantively and politically suspect.
In short, then, I think we may be arguing a false dichotomy. A judge must decide cases on the basis of what the drafters of the governing documents intended. The most prudent strategy for determining what those authors intended is to rely on the plain meaning of the words they used. There may be better evidence of the authors' intent in any given case, but there is no better strategy for assessing it, especially in the case of so carefully drawn and politically charged a document as a constitution.
Having staked out some turf, let me ask a couple of questions:
ReplyDelete1. With respect to what provision does it matter whether the meaning of the Constitution is determined (i) by the semantic intentions of the drafters or ratifiers or (ii) by the ordinary or technical meaning of its words and phrases as they would have been understood by the relevant audiences, citizens and lawyers, at the times particular constitutional provisions were adopted and promulgated?
I would like to see such a provision and the analyses by which different consequences for real litigants would flow depending on whether (i) or (ii) applies.
2. Even with method (ii), which relies on plain meaning, and which I favor (assuming for the nonce that it makes a difference), there is the problem that meaning is rarely plain, and specifically, that it is often unclear whether the authors are speaking de dicto or de re. The Constitution provides that the President must be a naturally born citizen of the US and at least 35 years of age. The US has grown to include places that were not eligible to ratify the original Constitution in 1789. But the citizenship clause is clearly satisfied by a birth, say, in Hawaii after it became a state. But what if we switch to hexadecimal numbering? Surely, thirty-five would be interpreted as it was in 1789. Why does one meaning expand and the other not?
And what about that old chestnut "cruel and unusual"? It's entirely possible that the Framers intended that the phrase be interpreted to mean "cruel and unusual at the time applied," and that interpretation is a reasonable interpretation of the words they used. The argument that a punishment is constitutional because it was not cruel or unusual in 1789 fails, not because a contrary interpretation ignores what "cruel and unusual" meant in 1789, but because the argument assumes that the Framers were speaking de re, even though it was certainly possible even in 1789 that they were speaking de dicto
Excellent points, and I wish Solum could join in!
ReplyDelete----
Solum himself is a moderate Gricean. He dwells on the utterer's versus expression's meaning thing.
And as you say, too much reifying is a bad thing. For a Gricean it's easy enough to verbalise, or verb:
--- By uttering 'cruel and unusual' U meant that p iff U intended his audience to believe that...
A claim or 'specification' as Grice has it, or utterance (i.e. expression) meaning is different:
"cruel and unsual" means _here_ that p.
--- There are five or six specifications of utterance-meaning. He does not use "expression". He considers 'utterance part', as in
"cruel and unusual".
He wants to be able to identify or localise or narrow down the 'controversial' bit of the meaning of an utterance.
There's "timeless" meaning, which I never saw.
And there's "occasion-meaning". This can be for the utterer. "utterer's occasion meaning".
There's also "applied timeless meaning" of an utterance of course, never of an utterer. An utterer cannot display "timeless meaning". Only an utterance can.
"cruel" is used here with its timeless meaning. "Applied timeless meaning of an utterance part"
"cruel" may be being used with an occasional meaning which is not the timeless meaning -- e.g. in a way that it plays on the etymology or something.
And then there's the TYPE, rather than the token.
The constitution must be seen as a TOKEN, I would assume. Becauuse it's a CORPUS. But if you want to provide a dictionary of the constitution, and look for
'cruel'. And they give different quotes from here and there. Each quote or use is a token, but if they go on to propose a "general" definition of 'cruel' out of all the instances in the corpus -- i.e. they typify the tokens, then it's a type of an utterance part that they reach.
In England they don't write it, right?
Do you mean they don't write the constitution? There's no one document, but they have a Bill of Rights. Still it's an act of Parliament, so it's not clear what authority they cite for finding another act of Parliament ultra vires. It appears to be all common law.
ReplyDeleteThe US Bill of Rights has its own implicature, viz., that the rights it protects were not already protected by some sort of received common law. Apparently, some opponents of the Amendments thought that their addition would add to the powers of Congress by itemizing the things it could not do, with the implication that it could do everything else.
--- I'll delay discussion of the common law, etc.
ReplyDeleteI'm reading p. 139 of his review of Smith's book, at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=993442
which pretty much recapitulates the Gricean distinction and which Solum finds it is between
mean -- intransitive
and
mean -- transitive.
His example has the good thing that it's the same one:
(i) Spefication, first, of FRAMERS meaning:
The Framers meant THAT the Intellectual Property Clause of the Constitution MEANS that Congress must aim to promote the progress of science when it modifies copyright terms.
Then,
(ii) Specification of TOKEN-meaning, supposed to derive from the above:
The Intellectual Property Clause of the Constituion means that Congress must aim to promote the progress of science when it modifies copyright terms.
--- Solum's teacher was Albritton, to whom he dedicates this piece.
---
Solum considers that (ii) indeed is included in (i) -- but there are some serious purely philosophical further 'reductive' analyses one can try.
I think Grice (and Solum does not define his self as Gricean) would indeed postulate a reduction of expression-meaning to utterer-meaning (what an expression means is reducible to what an utterer means).
So, in both cases it's a co-relation with beliefs:
I. FRAMERS MEANING, i.e. utterers meaning
"By writing (uttering) the Intellectual Property Clause, the utterer (the collective framers of the constitution) meant, among other things, that Congress must aim to promote the progress of science when it modifies copyright."
II. Expression meaning:
"The Intellectual Property Clause of Congress 'means' that Congress must aim to promote the progress of science when it modifies copyright."
---- Surely this is derivative of what the Framers meant. For THEY Held real intentions, meaning-constitutive intentions. A piece of paper Kant! It's even metaphtonmyic to say that a piece of paper 'means'. It's like those 'spots' (which didn't mean anything to me).
In the book that Solum is criticising he quotes an example by my type of man: Smith. Smith is walking on the beach from Texas to Mexico. He sees a sign on the sand, which reads, apparently like
. . .
.
. .
. ...
. .
. . ...
i.e. as "real".
"Now if this was written by a _gringo_ it means 'existing'. If it was written by a Mexican, it means 'royal'. If it was written by the wind it means sh*t".
We _need to trace the intention to pronounce as to the meaning (and on occasion, 'meaning') of things.
Etc. And note that no reification: it's all 'verb' as conjugated. Followed by 'that' clauses, etc. Why Solum calls one transitive and the other intransitive escapes me. Both seem transitive to me. If he means the scare-quote device, that's another animal, which I should consider anon, as they say.
.
.
Solum concludes his reply to Smith with a confession to having provided good "Gricean hues" to an otherwise simplistic canvas. You have to like that!
ReplyDeleteArticle I.
ReplyDelete....
Section 8. The Congress shall have Power:
....
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
This language raises the question, and I think this is the correct way to ask it, "Does Congress have the power to secure for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries in a way that does not promote the Progress of Science and useful Arts?"
I find the other versions of the questions unhelpful. They are paraphrases, with all of the entropy that such entail. Why complicate the matter with what the clause "means" or Congress "meant" to do? Why ask if Congress "must do x when it does y"? Article I, Section 8 empowers Congress to do X by doing Y. So, the question is "Can it do y if doing y does not do X?"
I don't see any point in turning to the public meaning of the expression, at least not on this issue. The question arises because the public meaning is unclear. The clause is anomalous; no other enumerated power has its complex grammar. Its meaning being unclear, why ask what it means? We've already done that and come up empty! All we can ask is whether the Framers and ratifiers had a shared understanding of its import, and, if not, what then? ("What then?" is a question of constitutional jurisprudence beyond even my presumption.)
I think the question of what is a "limited time" more usefully raises issues of meaning. There we have an actual phrase to be interpreted, and one that can indeed change meaning over time as innovation speeds up and lifetimes lengthen. The "To" clause may shed some light on the meaning of "limited time," including on whether the phrase is being used in a fixed or contingent way. My gut goes with an historically contingent interpretation because that seems most consistent with the stated goal of promoting science and art.
Which, I guess, is my point: there is no reason that the original intention of the Framers (as understood by the ratifiers)cannot have been to establish rules for application by future Congresses and judges under future conditions. The poor originalists are thus left with a sturdy but empty 1789 bucket that only the zeitgeist can fill.
Genial, L. J. I.§8¶8 "to promote the Progress of Science & useful Arts, by securing for limited Times" We are asking for necessary and sufficient conditions: i.e. given "y" does it fall within the _statement_ of the thing? What _is_ the statement of the thing. Is "limited time" to be thought of as "fixed" (say, 14 yrs) or not (1 week, 1,000 yrs)"depends"? As Kramer puts it, the only relevant question here is: "Does" i.e. as a matter of fact, "Congress have the power to secure for limited Times to Authors & Inventors the exclusive Right to their respective Writ. & Disc. in a way that does NOT promote the Progr. of Sc. and useful Arts?" The answer is "It does not". How do we _verify_ that? How do we verify if a given 'reading' of the clause is consistent with having some "Y" course of action as, NOT promoting by reader R and YES promoting by reader R'? Kramer again: "It empowers Congress to do X by doing Y. The question is "Can it do Y if doing Y does not do X?". And the answer is: It can not. He then goes on to apply this to the key phrase. Let "limited times" be: 1 week, 14 years, 1000 years. When the limited time is 'too' limited, say, 1 week, it will/shall not promote, so the Congress cannot do that. But it it's limited-almost-unlimited, 1,000 yrs -- Mickey Mouse "Forever" below -- it does not promote -- for it creates monopoly, so it cannot do that. Within the extremes, there are variables, to be applied casuistically. Why not fix it at 14 yrs? I read from the wiki: "Although PERPETUAL copyrights are prohibited (it specifies "limited times" after all), the Supreme Court has ruled in Eldred v. Ashcroft (2003) that repeated extensions to the term of copyright do not constitute a PERPETUAL copyright." "In that case, the US Supreme Court rejected a challenge to the Sonny Bono (c) Term Extension Act, aka the "Mickey Mouse FOREVER Act"" "Petitioners in that case argued that successive retroactive extensions of copyright were functionally unlimited and hence "violated the 'limited times' language of the clause". Just. Ginsburg, writing for the Court, rejected this argument, reasoning that the terms provided by the Act were 'limited' in duration and noting that Congress had a long history of granting retroactive extensions. "Only 3 private (c) acts passed in America prior to 1783. Two of the acts were limited to 7 yrs, the other was limited to 5 yrs. Later "a certain time not less than 14 yrs" and "for another term of time no less than 14 yrs": 2 14-yr terms. Also single terms of 14, 20 and 21 yrs. The first federal copyright act, the Copyright Act of 1790 granted copyright for 1 term of "14 yrs" with a right of renewal for another 14 yrs if the author survived". Refs by wiki include: K. Fenning, 1929. "The Origin of the Patent and (c) Clause". J. of the Patent Office Soc. 11; O. Hatch "To Promote the Progress Of Science: The (c) Clause and Congress' Power to Extend (c)s". Harvard Journal 16: 1–23, and T. Ochoa, "The Anti-Monopoly Origins of the Patent and (c) Clause". J of the Patent & Trademark Office Soc. 84. But my favourite passage has to be with the Micky Mouse Forever:
ReplyDeletehttp://econ161.berkeley.edu/movable_type/archives/000835.html. "Congress has granted patents and copyrights for limited times." "100 yrs is a 'limited' time." "1,000 yrs would be a 'limited' time, so what is the problem?"
The 'problem', perhaps not fun, is that this, I.§8¶8, is not a categorial imperative, but one of the few hypothetical ones that actually STATE the means, nd 1,000 can be proved NOT to promote what the thing is supposed to be promoting. Or something.
I would not be so quick to say "it does not."
ReplyDeleteSuppose:
"Congress shall have the power to please God by decreeing that 4+4=8."
Mightn't the Framers be implying that such a decree will ipso facto please God, so the isssue cannot arise as to whether Congress has purported to decree that 4+4=8 but has failed to please God? Cannot the "To" clause be interpreted as a finding and not as a requirement?
The 1,000-year example is really a lawyer's delight. There are three logically distinct bases for rejecting a 1,000-year copyright.
1. Such a copyright violates the "To" clause interpreted as a rule.
2. Such a copyright is not for a "limited time" within the meaning of Art. I, Sec. 8 because it is constructively perpetual, so that the "To" clause is irrelevant.
3. Such a copyright is not for a "limited time" within the meaning of Art. I, Sec. 8, because if it were, it would be inconsistsnt with the "To" clause, and we wouldn't want that.
#'s 1 and 3 represent Constitutional jurisprudence in microcosm. Courts strive to interpret statutes so as not to raise constitutional issues. #s 1 and 3 interpret "limited time" to avoid dealing with the thornier question of whether the "To" clause is a rule or a finding, even though #3 invokes the "To" clause to reach its conclusion. Thus, the clause can be given relevance without its status being decided. Is that cool or what?
"#'s 1 and 3 represent Constitutional jurisprudence in microcosm. ... #s 1 and 3 interpret "limited time" to avoid dealing with the thornier question of whether the "To" clause is a rule or a finding, even though #3 invokes the "To" clause to reach its conclusion. Thus, the clause can be given relevance without its status being decided. Is that cool or what?"
ReplyDeleteYes, sort of who Framed US?
--- Bob Hoskins, "Who framed Peter Rabbit?" Anyway, will elaborate at a later date. I like your idea of 'constructively unlimited': 1,000. Etc. And the thing about the 4 + 4 = 8. At first I read that as a falsity, e.g. 7 + 5 = 13, say. And I was wondering if the Congress can decree that. A tautology seems, perhaps more otiosely so, but a thing that Congress could, even if perhaps should not, decree. Etc.
In "Benjamin Franklin, the humorist", I apply the Gricean theory to the effect that they framed us alright -- the well-called Framers. Etc. which relates to your previous point in this thread that people are very suspicious of things.
Oddly, when Grice uses 'draft', I think he means (i) a bit of wind coming from the door, (2) one of his papers. But lawyers draft things _for good_ right? (I once saw this witty fim, The Draughtsman's Dilemma, I think it was -- dir. by Peter Greenaway.
I'm surprised the Ratifiers were such a careless lot.
What is suprising too, is the Illocutionary Force of the thing: political power of Leviathan at best: "The Congress shall have power". It's all the 'herebyes' of Austin with a vengeance!
Austin was saddened to learn, when in Harvard (delivering his "How to do things with words") that "I do" is not required in the marriage ceremony, I forget if in Thailand or in England. Add Langland for delight. I think Dangland/Danglish works very well. Get off of Danglish lifts. Etc.
On "constructively" unlimited, the law is very Ockhamesque; it never invents a status when it can usefully pretend that a case is ocvered by an existing status. Thus, we have constructive trusts, evictions, dismissals, etc., all of which treat events that are not literally within a legal category as if they were in that category. That way, we don't have to decide what consequences we wish to flow from a new status; we just attach the consequences that flow from the constructive status.
ReplyDeleteIn some cases, the constructive device is used to avoid form trumping substance. A Landlord wants you out of his place, but you have a valid lease. If he throws your stuff in the street and changes the locks, you have been evicted. But if he turns off the heat and electricity, what then? That's a constructive eviction, because it is intended to achieve the same thing as an eviction.
In contrast, if I buy insurance on your life without having an insurable interest in your life, and you die, a court may rule that I hold the proceeds in constructive trust for your heirs. In such a case, I am not trying to create the equivalent of a trust, but the court uses the theory that I am a trustee for your heirs to create a legal basis(technically, an "equitable" basis, but we won't go into that) for ordering me to pay the money to them.
This flexibility in creating "constructive" stuff makes me feel comfortable that a court would find nothing jurisprudentially wrong with calling a sufficiently long copyright period constructively perpetual.
I see. I wrote now on "Provost's Dog, Constructed Cat", new post quoting your use, which is very good.
ReplyDeleteI liked the insurance life point, too.
And you are right about 1,000 being 'constructable' as unlimited.
One point to consider here is maybe what you said about 'fixed' and contingency. Solum quotes a lot from Kripke, in either of the articles. In one he goes so technical that he imagines someone protesting, as we did, "Surely we don't need the theory of Leibniz's law of the indescirnibles or Grice's theory of particularised implicatures" to read the law. But recall he is a professor: he is training future lawyers.
The 'fixed' thing struck me as what I think Solum mentions, perhaps as 'rigid designation' or 'original intention'. I can't see, as you seem to agree, how the framers may have meant specific "limited times" and not made them expicit. So the phrase was _meant_ as 'vacuous' or 'general': to be 'constructed' as it were (or deconstructed as Derrida wants it).
But back to uses of words, etc.
I guess a defense in the case of the life insurance case is to 'construct' an insurable interest in my life. I wonder how they can _prove_ that you haven't got any.
While I did refer to 'limited times' as one of the keywords in the thing, I would drop in "progress", too, not to mention 'arts'. I forget the clause-structure. It's interesting that 'clause' means the whole thing but also 'sub-clause' etc. So one has to be careful. The 'progress' thing is mentioned in the "to" clause (sub-clause).
So, the idea is that Mickey Mouse be BETTER in the public domain? Is this a conspiratorial thing against Monopoly?
Solum is basically concerned with those 'minor' issues of sentence meaning vs. utterance meaning. But I should find out who in England (with their Bill of Rights) found Grice inspiring. Seeing that they had giants like H. L. A. Hart and Dworkin (who Solum mentions as "Gricean" without the credit), I don't think they do need him. And it is interesting that Solum went Gricean after Albritton, only. Etc.