Online research in philosophy

This book explores two basic questions regarding constitutional theory. First, in view of a commitment to democratic self-rule and widespread disagreement on questions of value, how is the creation of a legitimate constitutional regime possible? Second, what must be true about a constitution if the regime that it supports is to retain its claim to legitimacy? Howard Schweber shows that the answers to these questions appear in a theory of constitutional language that combines democratic theory with constitutional philosophy. The creation of a legitimate constitutional regime depends on a shared commitment to a particular and specialized form of language. Out of this simple observation, Schweber develops arguments about the characteristics of constitutional language, the necessary differences between constitutional language and the language of ordinary law or morality, as well as the authority of officials such as judges to engage in constitutional review of laws.

The new originalism is the latest de riguer theory of constitutional interpretation. No longer concerned with the majoritarianism or judicial restraint that were the hallmarks of Borkian/Bergerian originalism, the new originalists blithely dismiss precedent as having little, if any, constraining force and contend that the countermajoritarian difficulty is of little concern (though they are not alone in this regard). Parallel to this, there is little concern in the new originalist camp with judicial activism. Suffice it to say, it is not a modest theory. The thesis of this short paper is that perhaps that the new originalists suffer from a form of cognitive dissonance. That is to say, one wonders if the new originalists are not dealing in constitutional reality and are instead rationalizing a constitutional vision that does not square with history or the empirical evidence. It is well-documented that originalists on the bench are far from consistent in their application of originalism. Worse yet, when the justices (both liberal and conservative) utilize originalists arguments, ideological cherry-picking inevitably follows. More than that, the new originalists seem uniformly resistant to recognizing that constitutional law does not happen - and cannot happen - in the original public meaning vacuum they advocate. It is more profitable to understand decisions as the result of the historical and cultural zeitgeist the justices find themselves in. In fact, it is ironic that originalism itself is rather plainly a product of the (partial) triumph of the New Right political movement! If I am right about this, I think it is time for the new originalists to explain how their constitutional vision fits into our historical and empirical reality. If they cannot reconcile their theory with this, perhaps it is time that the new originalists admitted their dissonance and developed some intellectual modesty.

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.

This book discusses one of the central problems in the philosophy of law--the question of legal determinacy. Is the law a seamless web or are there gaps? Bix argues that the major re-thinking of the common and "common sense" views about law that have been proposed by various recent legal theories is unnecessary. He offers a reconsideration of the role of language in the law, and the way ideas about language have been used and misused in recent legal theory. He explores in depth the relationship to legal theory of Hart's influential idea of "open texture," Dworkin's interpretative approach to law, and Wittgenstein's philosophy.

The dominant strain of constitutional interpretation in Canada holds both that originalist theories of constitutional interpretation are not a part of Canadian constitutional doctrine, and that this is a very good thing. The Canadian courts (and academy) fully subscribe to a theory of living constitutional interpretation. While living constitutional interpretation in Canada is most often defined in terms of its incompatibility with originalist interpretation, there has not been a meaningful engagement in Canada with contemporary schools of originalist interpretation. The originalism rejected by the Supreme Court of Canada in 1985 (and periodically reaffirmed thereafter), is not the New Originalism, and a rejection of this new family of interpretive theories does not necessarily follow from the fact of the Supreme Court of Canada's rejection of original intent originalism. Unfortunately, the Canadian courts have continued to affirm living tree constitutional doctrine and denounce originalism without providing much of an account of either theory.This paper is a prefatory study to an engagement with new originalist scholarship. I attempt a statement of the current commitments in Canadian living constitutional doctrine (pausing to engage with theoretical arguments that have been made in its defence) and, in passing, note the Supreme Court's attitudes towards originalism. My purpose is to determine what the central commitments of living tree constitutional doctrine are, as a preliminary step towards a later study to determine the extent to which Canadian doctrine is truly incompatible with orginalist interpretation. I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: (1) the doctrine of progressive interpretation; (2) the use of a purposive methodology in progressive interpretation; (3) the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and (4) the presence of other constraints on judicial interpretation.

Verifying an epistemic protocol involves creating a formalized version of the protocol in a suitable logical language, and next showing (i) that the steps of the protocol are in one to one correspondence with the steps in its formalized version, (ii) that the formalized version satisfies certain correctness conditions, and (iii) hence, that the original version also satisfies these conditions. We will show that DEL is a suitable medium for carrying out this program for an interesting example protocol.

Much has been written about originalism - the idea that the Constitution should be interpreted according to its original meaning. This essay goes beyond previous works by asserting that originalism may be nearing its demise. Ironically, the beginning of the end of originalism may have been prompted by the Supreme Court's decision in District of Columbia v. Heller, marking the first time that a majority of the Court signed onto an opinion emphatically taking an originalist slant. Heller may represent the apogee of originalism and, because it exposes the fundamental flaws of originalism, may also mark the beginning of its decline. This essay further differs from previous works concerning originalism. First, the essay shows that originalism is a radical departure from the Supreme Court's well-established jurisprudence of a living Constitution. From its very inception, constitutional law has been a dynamic process of creativity and the vast majority of Supreme Court decisions interpreting the Constitution have been non-originalist in their methodology. Originalism cannot explain the large body of constitutional doctrine that has developed over the years since the Constitution was adopted. The essay also focuses on fundamental flaws of originalism neglected in other works. At the most fundamental level, originalism misperceives the nature of history by presuming that it has an objective meaning that can be discovered through assiduous study of ancient material. However, the belief in a hard core of historical facts existing objectively is an illusion. The meaning of the Constitution does not reside in the past, and any attempt to ascertain the original meaning of the Constitution necessarily entails reconstructing the past in one's mind. Originalism, therefore, cannot eliminate the necessity of making value judgments to interpret the Constitution. Rather, it obscures the policy-making function of constitutional interpretation by pretending that the meaning of constitutional provisions can be recovered from historical annals. There is also a serious question of whether past understanding of the Constitution can be meaningfully transposed from one generation to another. Whatever the original meaning of the Constitution may once have been, it was formed in the context of a past reality and in accordance with past attitudes, both of which have changed considerably since the Constitution was drafted. Blindly following the presumed original meaning of constitutional provisions formulated in reaction to past conditions and attitudes that have long since changed is dysfunctional, an instance of cultural lag whereby the meaning of the Constitution is left dormant while the world around it changes. Heller displays all of the flaws of originalism. It succumbs to the illusion that the original meaning of the Second Amendment has an objective existence that can be recovered by studying the past. In falling prey to this illusion, Heller perpetrates a pretense of ob

Semantic originalism is a theory of constitutional meaning that aims to disentangle the semantic, legal, and normative strands of debates in constitutional theory about the role of original meaning in constitutional interpretation and construction. This theory affirms four theses: (1) the fixation thesis, (2) the clause meaning thesis, (3) the contribution thesis, and (4) the fidelity thesis.

The fixation thesis claims that the semantic content of each constitutional provision is fixed at the time the provision is framed and ratified: subsequent changes in linguistic practice cannot change the semantic content of an utterance.

The clause meaning thesis claims that the semantic content is given by the conventional semantic meaning (or original public meaning) of the text with four modifications. The first modification is provided by the publicly available context of constitutional utterance: words and phrases that might be ambiguous in isolation can become clear in light of those circumstances of framing and ratification that could be expected to known to interpreters of the Constitution across time. The second modification is provided by the idea of the division of linguistic labor: some constitutional provisions, such as the natural born citizen clause may be terms of art, the meaning of which are fixed by the usages of experts. The third modification is provided by the idea of constitutional implicature: the constitution may mean things it does not explicitly say. The fourth modification is provided by the idea of constitutional stipulations: the constitution brings into being new terms such as House of Representatives and the meaning of these terms is stipulated by the Constitution itself.

The contribution thesis asserts that the semantic content of the Constitution contributes to the law: the most plausible version of the contribution thesis is modest, claiming that the semantic content of the Constitution provides rules of constitutional law, subject to various qualifications. Our constitutional practice provides strong evidence for the modest version of the contribution thesis.

The fidelity thesis asserts that we have good reasons to affirm fidelity to constitutional law: virtuous citizens and officials are disposed to act in accord with the Constitution; right acting citizens and officials obey the constitution in normal circumstances; constitutional conformity produces good consequences. Our public political culture affirms the great value of the rule of law.

We can summarize semantic originalism as a slogan: The original public meaning of the constitution is the law and for that reason it should be respected and obeyed. The slogan recapitulates each of the claims made by semantic originalism, but it is potentially misleading because it does not clearly distinguish between the semantic claims made by the fixation and clause meaning theses, the legal claim made by the contribution thesis, and the normative claim made by the fidelity t

Constitutional interpretation is problematic because it can be difficult to distinguish legitimate interpretation from illegitimate change. The distinction depends largely on what a constitution is. A constitution, like any other law, necessarily has a meaning, which pre-exists judicial interpretation: it is not a set of meaningless marks on paper. Any plausible constitutional theory must offer an account of the nature of that meaning. In doing so, it must address two main questions. The first is whether the meaning of the constitution is given solely by its words, or also by additional evidence of underlying intentions, purposes or values. The second question is whether, in either case, its meaning is determined by the original meanings, intentions, purposes or values of the founding generation, or by contemporary meanings, intentions, purposes or values. This question divides so-called 'originalists' from 'non-originalists'. This article discusses all these alternatives, and the main arguments for and against them. It is subtitled 'Originalism' because it defends a moderate version of that position; however, it is argued that this is equivalent to a moderate version of non-originalism.