Holte's corner

Exemplars and Originalism

It is important to listen to someone who is an enemy of important
principles. For example understanding the Federalist papers requires
understanding Patrick Henry, "Cato and Brutus" every bit as much as
any of the Federalist.

It's important to understand a document and its sections principles,
context, literal meaning, original intent, and historical developments
in its interpretation. Scalia as a sophisticated person is important
to listen to, but because he is sophisticated, radical and partisan it
is important to read him in context with others or balance his words
with someone like Ms. Smiths. He makes claims to an objectivity he
doesn't in fact possess. Which is the fault of many who claim an
objectivist position. They are not really objective at all. In fact their opinions are highly subjective.

Better than this is to use the principles of logic to ensure that principles are elucidated and applied as they are "originally" defined in the sense of being true principles. Ms. Smith appears to be critiquing Scalia, but she's really explaining how to reason from principle to practice.

http://www.law.duke.edu/journals/djclpp/index.php?action=showitem&id=46

As she notes theories such as "popular will", "Dworkin", and
"minimalism" which all have the weakness of denying the very
possibility of objectivity, with the result that they don't really
offer a living alternative to Scalia's dead hand. As she says later in
her article;

"And here, we reach the junction that leads many to embrace
Originalism. If the law is a chameleon, depending on the preferences
favored in each of these theories, and if such unsettled,
unpredictable law is the alternative to Originalism, while Originalism
offers stability -- a single, constant standard, rooted in the
foundation of the laws that we agreed to say -- it seems clearly
superior as the only way to uphold the rule of law. Originalism's
objectivity, again, is its appeal. Would that that objectivity were
genuine."

The one thing that any student, settled teacher, conservative,
businessman or anyone who isn't going through an adolescent period
fears; is the arbitrary, unsettled, "chameleon" situation. The value
of originalism lies in its professions of fealty to something
unchanging and steady; Never mind that it is hubris in some cases.

she writes:

"In Scalia's view, words mean what those using those words had in mind
-- literally, the particular examples they would have associated with
a word. The Constitution's framers "were embedding in the Bill of
Rights their moral values," he emphasizes. While he recognizes that
they sought "to guarantee certain rights," he believes that the
content of those rights is unchanging over time. The Eighth Amendment,
for example, outlaws those punishments that were considered cruel and
unusual by those particular authors when they enacted it."

"Scalia fails to appreciate that words (other than proper names)
designate concepts and that concepts, to use the terminology of Ayn
Rand, are open-ended. Rand does not mean that meaning is elastic,
allowing a given user to control a word's meaning. Rather, the idea is
that the referents of a word -- the actual, concrete instances of that
concept -- are not a fixed, immutable set determined by the experience
or knowledge of a particular speaker."

A concept, such as liberty, even the word "all men" expresses an
abstract. An abstract is a fundamental meaning, but the understanding
of that abstract must change with time. "All men are created equal" is
a concept that now pretty much includes women, and one day might
include alien beings with feathers for hair and bug eyes. The concept
itself is abstract. Thus when concepts evolve that is a good thing,
and an unavoidable thing.

She writes:

"When Scalia charges that judges who uphold any right that the
Constitution's authors would not have upheld are making unlicensed
additions to the law -- when he claims that "cruel" punishment means
only punishments that would be considered cruel by the Constitution's
authors, or when, similarly, he claims that the Equal Protection
clause does not require female combat troops or recognition of gay
marriage because the authors of that Amendment did not envision such
applications of it -- he is denying the open-ended nature of concepts. "

It is possible that concepts can be understood better with time.

"He is insisting that we adhere to the particular images that a law's
authors had in their heads when they used particular language. Thus in
his view, seemingly, a word is a symbol for a finite quantity of
concretes. "Cruel" means simply those actions that they regarded as
cruel; "equal protection" refers to the set of protections to which
they thought it referred."

"Unfortunately for Scalia, this is untenable. One obvious problem is
that, on this model of words' meaning, no communication could take
place: When Mary says "man" and Bill says "man," they will obviously
have encountered different men in their experiences. Their lists of
referents associated with the term will not match. Thus, in Scalia's
view, they are not talking about the same thing."

Wikipedia defines "referent" as "An object which is referred to as a reference (where the reference leads) is called a referent." In other-words, a referent is the things that a concept infers, that flow from the logic of a concept.

http://en.wikipedia.org/wiki/Reference

She continues:

"The implication of Scalia's view is that abstracting is merely
pointing. If asked what a particular word means, one could only
answer: "Here, this -- and this, and this." In effect, only if another
person can replicate the items in the speaker's head when he says
"man" by pointing to exactly the same concretes would the two people
be talking about the same thing. While it is, of course, important to
be able to point to the actual referents of any valid concept, Scalia
misses the fact that such pointed-to concretes are simply examples.
They do not exhaust the meaning of the concept."

The reason that concepts change with time is that the richness of the
illustrating scenarios is enhanced by the ongoing narrative of how
things actually happen as they are put to practice. The founders
understood slavery from the point of view of owners. They were certain
they didn't want to experience it in the abstract from Britain, but
some of them were perfectly willing to put off its abolition or even
to excuse or condone its practice. To muddy the abstract idea of "all
men are created equal" they floated out ideas such as race and bogus
theories about gender which allowed them to limit the application of
that concept to rich white males, then to white males, and only
belatedly and after death and conflict to all males, and eventually to
all males and females. Words express pure concepts, and sometimes the
"original meaning" explanations express only a primitive
understanding of that concept.

Wikipedia defines "exemplar" as "the concrete problem-solutions that" are encountered when a principle is applied to the real world.
http://en.wikipedia.org/wiki/Exemplar

It is the exemplars and "referents" that define an abstract concept. This can even be reasoned by looking at the negative things people did. If George Mason had no intentions of ending slavery, they knew that the principles they expounded denied the righteousness of slavery. The fact that some of the people involved in creating the constitution were also involved in trying to prevent slave and free negroes from even reading the declaration of independence (In Charleston SC) is proof enough that those principles embodied incipient "referents" and exemplars from the beginning. When a theory implies something its "referents" are the things that flow from that theory. When a theory is applied, the solutions become exemplars.

In other words the very meaning of terms like "common sense" and "originalism" are based on one's references and exemplars, and those are based on concepts we hold in our minds. If we change our conception of reality, we can start to change the solutions we attempt to use to solve those problems that we are aware of.

http://www.law.duke.edu/journals/djclpp/index.php?action=showitem&id=46

Posted by cholte at April 29, 2008 11:35 PM