Legal Commentary

Ok.  So I?ve realized through my experience in conversations here on prawfs so far this month that very few people seem to share my view of contested constitutional meanings?and that?s alright.  I still have not been persuaded to reform my ways, however, and I want to take one more, brief, shot at stating my case.

Most arguments in favor of a particular normative theory of constitutional interpretation?that is, how we ?should? be doing it?seem to operate on the assumption that constitutional terms have some "meaning" outside of our argumentative practices about them; something we could "discover" if we just approached the problem correctly.  This is certainly true of the fixation thesis that Andrew Coan describes here, but it is true of most (all?) other normative theories, too.  I, however, (and I?m not totally alone) reject the thought that there is any concrete "meaning"--in the sense of a foundational referent--for terms like ?equal protection? or ?due process? or ?establishment? etc.  Something like the "meter stick" in Paris that actually defines what a meter is.  Rather, I believe that we only know these terms ?meaning? by looking to their proper use in constitutional argument.  There simply is nothing ?out there?, outside of the argument, for us to discover by looking to ?original public meaning? (which, as ?meaning?, is subject to the same kind of limitations) or anything else.  All that we can do is look at the ways these terms are (or "were" I suppose, if you're an originalist) properly or legitimately used in our arguments?there is no ?thing? in the world that ?equal protection? names.  As Philip Bobbitt said ?law is something we do, not something we have?.   But enough, I?ve beaten the horse to death and you probably still don?t agree with me.

Now, I have to admit that I have been persuaded, perhaps indoctrinated, into this view of language and meaning since first reading Wittgenstein in college.  And if someone can present me with a better account of meaning?one that can really convince me that these disputed kinds of constitutional terms actually point to something concrete and defined that we could identify if we looked hard enough or in the right way; something that has an existence separate and outside of our conversations?then I will have to change my mind.