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The Fallacy of Originalism: What Philosophy of Language and Law Says About ?Original Meanings?

By Alliance Alert

SSRN: "The resurgence of the new 'originalism' among conservative American law professors is an intellectual movement that fundamentally misunderstands philosophy of language and law. The central problem is that most constitutional words are what Wittgenstein called 'family resemblance ideas.' This means that they consist only of a cluster of ideas that can be carried forth or implemented in numerous ways and formats. For example, what 'cruel punishment' means linguistically are those choices, X, selected from an array of options, any combination of which bears a family resemblance to each other, had they been X. When generations make these choices to assemble their cruel-punishment 'products,' they are making 'protocol choices.'"

Full post as published by Constitutionally Correct on May 19, 2009 (boomark / email).