|Abstract||The view (most prominently advocated by Justice Scalia) that original meaning entails the constitutionality of original practices has strong intuitive appeal and has been broadly assumed by originalists and nonoriginalists alike. But the position is mistaken. We suggest that a failure to distinguish between two different notions of meaning accounts for the position's wide currency. According to the first notion, the meaning of a term is roughly what a dictionary definition attempts to convey--the semantic or linguistic understanding necessary to use the term, as opposed to nonlinguistic facts about the objects or activities to which the term applies. In contrast, according to the second, looser notion, the meaning of a term incorporates the objects or activities to which the term is applied. The first notion lies behind originalism's theoretical force; it is untenable that the meaning of the Constitution in the first sense could evolve. In sharp contrast, it is not only tenable but inevitable that changes occur over time in the class of things to which a constitutional provision is applied. Once recognized, the distinction undermines the seemingly natural move from the necessity of interpreting the Constitution in accordance with how it was originally understood to the necessity of upholding practices originally understood to be constitutional. By taking the distinction on board and rejecting the assumption, originalism can readily deflect the challenges based on unacceptable original practices; as a consequence, however, it will not be tenable for originalism, in any case challenging an original practice, simply to rule out the possibility of the practice's invalidity.|
|Keywords||No keywords specified (fix it)|
|Through your library||Only published papers are available at libraries|
Similar books and articles
A. H. T. Fergus & J. I. A. Rowney (2005). Sustainable Development: Lost Meaning and Opportunity? Journal of Business Ethics 60 (1):17 - 27.
John Collins (2011). Why the Debate Between Originalists and Evolutionists Rests on a Semantic Mistake. Law and Philosophy 30 (6):645-684.
Frederick Mark Gedicks, Conservatives, Liberals, Romantics: The Persistent Quest for Certainty in Constitutional Interpretation.
Catherine Legg (2005). The Meaning of Meaning-Fallibilism. Axiomathes 15 (2).
C. J. L. Talmage (1994). Literal Meaning, Conventional Meaning and First Meaning. Erkenntnis 40 (2):213 - 225.
Austin W. Bramwell (2004). Against Originalism: Getting Over the U. S. Constitution. Critical Review 16 (4):431-453.
Ned Block (1995). Ruritania Revisited. Philosophical Issues 6:171-187.
Jeffrey Goldsworthy (2009). Constitutional Interpretation: Originalism. Philosophy Compass 4 (4):682-702.
Added to index2009-01-28
Total downloads31 ( #39,249 of 548,976 )
Recent downloads (6 months)2 ( #37,438 of 548,976 )
How can I increase my downloads?