Ian Bartrum: Wittgenstein's Poker
Ian Bartrum (University of Nevada School of Law) has posted Wittgenstein's Poker: Contested Constitutionalism and the Limits of Public Meaning Originalism on SSRN. Here is the abstract:
The last two decades have seen an explosion in scholarship exploring the intersection between linguistic indeterminacy (usually vagueness), as analyzed within the philosophy of language, and legal interpretive theory. This essay claims that such indeterminacies are an inevitable, and even valuable, part of contested language games—such as our contested constitutionalism—which employ linguistic uncertainty to further different communicative or political ends. It further suggests that two particular types of constitutional indeterminacy—intentional contemporary ambiguity and incidental evolutionary vagueness—present substantial problems for public meaning theories of originalism. Resolving an intentional ambiguity seems to require at least some recourse to authorial intentions, which are beyond the scope of public meaning originalism; and historical usages can offer little guidance when new constitutional problems reveal a latent textual vagueness.
When combined with the problems of intentional vagueness—which the New Originalists already concede to modern construction—these types of indeterminacy seriously undermine the practical value of public meaning originalism as an interpretive method. Indeed, many—if not most—of our non-trivial constitutional disputes are contests over just these sorts of textual uncertainties. In all of these cases, then, the New Originalist must either resort to intentionalist theories—with all of their well-known epistemological and jurisprudential problems—or concede the question to modern judicial construction. This, in turn, means that public meaning originalism’s claims about the existence of “empirical” constraints on our constructive practices can inform only a small, and relatively uncontroversial, set of actual constitutional controversies.
An interesting and challenging paper. Without dismissing the problems of indeterminacy in public meaning originalism, I would make two quick points. (1) Most originalist approaches do not suppose that there will be 100% certainty on most questions; the inquiry is rather which of two competing interpretations more probably reflects the original meaning. (2) Although public meaning originalism focuses on the meaning of the text, that does not prevent originalists from consulting historical sources, both as to the common usage of words and as to the goals and interpretations of the enactors. These points, among others, make the inquiry more manageable than it might appear.
Also see some of my further thoughts on originalism and indeterminacy here.