original-intent originalism, semantic instability, and the impact of linguistics on american constitutionalism
In his recent article, "Original-Intent Originalism: A Reformulation and Defense," Professor Scott Boykin argues that original-intent originalism is the proper interpretive method for deciding constitutional issues. While Boykin argues several points, all of them can be seen as a view of the nature of language that was known but rejected by the Founders when drafting the Constitution. Boykin’s erroneous linguistic argument for constitutional interpretation relies on Hirsch, Wittgenstein, Schleiermacher, and Searle, all of whom wrote their philosophies in the 20th century. Boykin’s argument on interpreting the language of the Constitution is flawed and anachronistic because it applies 20th-century linguistic theory to an 18th-century document. To properly solve the Constitution’s interpretive problem, it is imperative to understand what the Framers understood regarding the nature of language at the time they wrote the Constitution. Did they believe the meaning of words is fixed and static, as Boykin argues, or did they believe that language changes over time? This article will demonstrate that the drafters were heavily influenced by 18th-century political philosophers Thomas Hobbes, John Locke, and Charles de Secondat, Baron of Montesquieu, all of whom wrote on the changing nature of language. Furthermore, the drafters were also influenced by English jurist William Blackstone and his Commentaries on the Laws of England, in which, buried deep in its many pages, Blackstone articulates his view of the changing nature of legal language. These writers were correct in their estimation of the semantic instability of language, whose meaning changes over time and with the circumstances. In other words, the Founders were influenced by this changing nature of language and intentionally drafted the Constitution in imprecise terms to avoid the idea that language is fixed and static. It is through this "original" intent of the fluid meaning of language that the Constitution should be construed.
The extreme importance now given to opinion (by contrast with conduct) in the estimation of a person’s character has certain consequences. This is not to say that in the past a person’s opinions played no part in such an assessment, and no doubt there are some opinions so extreme or vicious, for example that some whole population should be mercilessly wiped out, that in any day and age one would hesitate to associate with someone who held them. But before, even when someone held an opinion that we considered very bad, we still also assessed the degree of seriousness with which he held it, the degree to which it was purely theoretical, the importance it played in his overall mental life. The holding of such an opinion would not redound to his credit, but if lightly held and with no likely effect on his actual behavior, it would detract only slightly from our view of him. He might still be a good man, albeit one with a quirk, a mental blind spot.
If we take as an example the question of capital punishment, it should be possible for people to disagree without concluding that those who take a different view from their own are morally deficient or defective. I am against the penalty on the grounds that even in the most scrupulous jurisdictions mistakes are made, and that for the state wrongly to execute one of its citizens is a heinous thing, moreover one which will bring the whole criminal justice system into disrepute. If it is argued that the state’s unwillingness occasionally to execute wrongfully will lead to more wrongful deaths by murder than would otherwise have occurred, I would reply that this is a price that must be paid (though I concede that there might in theory be a price too high to be paid, though I think this is unlikely in practice ever to eventuate). A person who declared himself in favor of summary execution without trial of all those with whom he disagreed or otherwise reprehended would probably be regarded as mad rather than bad, at least outside the purlieus of the Taliban.
The extreme importance now given to opinion (by contrast with conduct) in the estimation of a person’s character has certain consequences.
If someone were either for or against the penalty on more deontological grounds, that it was either just or barbaric in itself, I would recognize these as sensible arguments without necessarily subscribing to either, and without giving to them the weight that those who subscribe to them give them. Thus, it should be possible for us to have a discussion on the question, disagreeing but without casting aspersions on each other’s character. It seems to me, however (though I have no strict scientific evidence to prove it) that such reasonable discussions have become less and less frequent, precisely because opinion and not conduct has become the touchstone of virtue.
This naturally raises the temperature of any discussion and inclines participants to bad temper. But there are other consequences too.
For one thing, the elevation of the moral importance of opinion changes the locus of a person’s moral concern from that over which he has most control, namely how he behaves himself, to that over which he has almost no personal control. He becomes a Mrs. Jellyby who, it will be remembered, was extremely concerned about the fate of children thousands of miles away in Africa but completely neglected her own children right under her own eyes, in her house in London.
Perhaps the most popular mystery of fungi is how they manage to alter our consciousness. While books like Michael Pollan’s 2018 best seller How to Change Your Mind explore the human response to psychedelics, Sheldrake, ever interested in what he calls the “fungal point of view,” asks what’s in it for the mushrooms. No one yet knows why psychedelic mushrooms synthesize psilocybin, the compound responsible for our altered states. Yet some two hundred species of mushrooms found all over the world do it.
Scientists have proposed several theories about fungal motivations, one of which is inspired by Ophiocordyceps unilateralis, a fungus whose spores infiltrate the bodies of ants and quickly commandeer their nervous systems. Once inoculated with cordyceps, the ants abandon their usual routines and march straight up trees, where they perform a “death grip,” biting down hard on the underside of a leaf to anchor themselves. Mycelium sprouts from the ants’ feet and “stitches them to the plant’s surface,” Sheldrake writes. Then, a cordyceps mushroom erupts out of each ant’s head, killing the ant. The mushroom disgorges its spores, which rain down on the ants scurrying beneath and infect them, spreading the cycle of zombification and reproducing the cordyceps. For part of its life cycle, then, the cordyceps could be said to wear an ant’s body, using it to act through.
Channeling the work of the psychedelic plant-theorist Terrence McKenna, a family friend of Sheldrake’s, the author asks, “Do psilocybin fungi ‘wear our minds,’” as Ophiocordyceps wears ant bodies? After all, human behavior notably changes during and after consuming magic mushrooms—many report mystical experiences that impart a sense of awe and interconnection, a new understanding about the nature of reality, and a lessening of a clearly defined sense of self. Thousands of years of psilocybin mushroom use have left distinct traces in diverse human cultures, from chants to religious beliefs and devotional art.
The gene cluster responsible for psilocybin seems to have evolved separately in fungi several times, and to have jumped, via gene transfer, between species. According to Sheldrake, that alone suggests it must have provided “a significant advantage to any fungi who expressed it.” But what’s useful to fungi in the behavior of humans and other animals while under the influence of psilocybin? In McKenna’s view, fungi borrow the human body in an attempt, perhaps—as Sheldrake puts it—to “deflect our destructive habits as a species,” influencing a symbiotic partnership with possibilities “richer and even more baroque” than could be achieved by either humans or fungi alone.
Sacrifice is all-consuming, eternal, and never satisfied. It derives its power from the blood of the innocent. When misused and controverted for irreligious purposes it can entail immense cruelty and suffering. The only endpoint for this was the Cross of Christ. In this way the paradoxes of sacrifice are most disconcertingly exposed and most wondrously resolved. The perpetual sacrifice offered once and for all, a mystery to be acknowledged and entered into with humility and reverence in every sacrifice of the Mass. In the end, Calasso’s extended meditation on the nature of sacrifice led him to the same point as Anselm’s exegesis.
In this chapter, I take up Dworkin’s account of law as integrity and explore some of its unrecognized implications regarding the gravitational force of judicial decisions. Under law as integrity, past judicial decisions have gravitational force over present ones for reasons of equality or procedural fairness. Judges have a duty to help ensure that their legal system treats like cases alike, which means that past decisions exert force over present ones even if those past decisions were defective as a matter of substantive justice. I argue that, because equality is not an exclusively past-oriented ideal but rather an a-temporal one, future judicial decisions also exert gravitational force over present ones. Whenever future decisions are reasonably foreseeable, then, judges ought to follow their best predictions of those decisions, just as they ought to follow their best understandings of past precedents. Accordingly, future exercises of governmental authority have normative implications for how officials should exercise their authority today that Dworkin did not appreciate. On the bidirectional model of precedent that I propose here, compared to the conventional, exclusively backward-looking one that Dworkin hung onto, a judge takes a more expansive view of the legal practices that are relevant to the process of constructive interpretation, interpreting not only past judicial decisions but also future ones. This is necessary from the point of view of law as integrity, I argue, because under that view the law must really constituted by both.
What Aristotle meant is that if a regime is unjust, it will regard as good citizens only those who are unjust in the way the regime is unjust. Anyone who refuses to acquiesce in the regime’s injustice will be regarded as dangerous. Precisely the just men and women will be seen as disloyal to the ruling authority and as politically illegitimate. In the early 1940s, Germans who sheltered Jews were bad citizens of the Third Reich, and Russians who circulated books critical of Marxism were unfaithful to the ideals of the Soviet Union.
Of course, there were, and always are, degrees of complicity and resistance; just as there are degrees of unjust government. Not everyone trapped behind the Iron Curtain possessed the heroic courage and mighty pen of Alexander Solzhenitsyn; and not every unjust regime descends into the hell of the gulag and the gas chamber. One can’t even say that every political system is uniformly good or bad. Aristotle’s famous teaching about metabole, revolution, describes the transformation of one regime type into another—constitutional democracy into oligarchy, for example. During the transition, which might take some time, the political community will be a mixture. There will be some elements upholding the older regime, while others advance the emerging replacement. Though the moral distinctions may be less clear-cut, the good man will nevertheless seek to defend the moral and free parts (whether of the old order or the new) while resisting the dishonest and despotic elements.
The best American art is often hidden. Sometimes, it conceals itself in pop culture, hiding in plain sight by disguising itself as a commercial product. Think muscle cars, comic books, or the middle seasons of It’s Always Sunny in Philadelphia. In these instances, high art dons blue jeans and a T-shirt and mingles with the proles. More often, though, the best American art, and particularly literature, dies from underexposure. Without insinuating itself into a market, there simply isn’t an audience for it. Such was the case with Moby Dick until it was resurrected by D.H. Lawrence in the 1920s. Who knows how many masterpieces have yellowed into dust, unloved and unread, while the cultural machinery of the republic fed off the basest drives of the lowest common denominator?
The writing of Stephen Crane has the somewhat cumbersome fate of being hidden in both senses. He enjoyed massive commercial success at the end of the 19th century with exciting, often prurient works such as Maggie: A Girl of the Streets and The Red Badge of Courage. As celebrated novelist Paul Auster writes in his lush and fascinating new biography, Burning Boy: The Life and Work of Stephen Crane, “Once upon a time, almost every high school student in America was required to read The Red Badge of Courage.”
But Crane’s fortunes have changed. “Now,” writes Auster, “for reasons I find difficult to understand, the book seems to have fallen off the required reading lists.” Just as disturbing for Auster, none of his non-English-speaking literary acquaintances had ever heard of Crane, despite his work once being internationally acclaimed. Crane and his work, Auster tells us, “which shunned the traditions of nearly everything that had come before him, [and] was so radical for its time that he can be regarded now as the first American modernist, the man most responsible for changing the way we see the world through the lens of the written word,” has died a second death. Only a handful of specialists remain to pick over his corpse.
One of the most important reasons emergence has reappeared is science needs it. At the frontiers of research, there is a remarkable new field called complex systems. Drawing insights from physics, biology, and the study of social systems, the theory of complex systems has given scientists a wide range of examples where new entities and new rules appear to emerge from the networked interaction of simpler parts. Colloquially, the whole is greater than the sum of its parts.
These studies have drawn a new generation of philosophers to re-engage with the ideas of emergence, using the advances in science as a spur to unpack how chains of causation can be closed or opened and run from the bottom-up or the top-down. In these examinations, there have come distinctions like “weak” vs “strong” emergence, as well as those who challenge the need for that split. These are the kinds of issues I want to unpack in this series over the next few months.
To sum it up for now, when it comes to reductionism and emergence, there are many thorny issues that require scrutiny. What is clear, though, is that the simple picture reductionism offers of a world made solely of atoms can no longer be seen as the only “sober” view of science and its perspective on life, the universe, and everything.
The rabbi has been very clear: the Bar Mitzvah itself cannot have a theme. But in keeping with the theme we already established, we will defy God and Order, and Timothy’s Bar Mitzvah will have a theme. The theme will be Moby-Dick.
Voegelin never carried out a full-bore analysis of Locke as an exemplar of “spiritual pathology” or “pneumopathology.”[xiv] Although his view of Locke is lucid and unambiguous – “when it comes to Locke, my heart runs over. He is for me one of the most repugnant, dirty, morally corrupt appearances in the history of humanity” – he did not thoroughly analyze Locke’s works. In fact, within the recent fascination with Locke in political theory circles, no thorough analysis of Locke’s work has been conducted which seeks to discover whether and to what extent Locke intentionally feigned works of political theory as political philosophy to provide a deeper sense of philosophical veracity than was warranted by the actual substance of his ideas. Fortunately, the concept of pneumopathology was explored by Voegelin in some depth, and has since been taken up by other scholars.[xv] This analysis will build upon existing but scant pneumopathology literature by undertaking a thorough examination of Locke’s writings and ideas in order to determine whether Locke may be appropriately characterized as an ideological constructor who also possesses the pneumopathological spiritual character.
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