Comments on: Analysis: Some revelations on Day Two http://www.scotusblog.com/2005/09/analysis-some-revelations-on-day-two/ The Supreme Court of the United States blog Mon, 23 Jan 2012 22:38:26 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Chris http://www.scotusblog.com/2005/09/analysis-some-revelations-on-day-two/#comment-7948 Chris Wed, 14 Sep 2005 15:46:35 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-some-revelations-on-day-two/#comment-7948 "Both [Scalia and Thomas] consider quite illegitimate the thought that the Constitution’s words should be given up-to-date meanings, as times change. Roberts drew a distinction between original motivation and the breadth of language actually chosen by constitutional draftsmen. One can accept why a provision was put into the Constitution, he suggested, but then see breadth -- and some fluidity -- in the concepts written into the document." <p>Our understanding of the legitimacy of "up-to-date meanings" would be much clearer, I think, if we used distinctions from the philosophy of language to mark a difference between changed meanings, on the one hand, and changed constitutional outcomes, on the other. Using the philosophy of language would help, I think. For what it's worth, <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=798466" rel="nofollow">here's my attempt to do that</a>, defending a half-dead, half-living Constitution. In Fregean language, we can have an up-to-date Bedeutung without an up-to-date Sinn. <p>I'm not sure if I'm the same sort of "interesting combination of a constitutional 'originalist' and a believer that the Constitution changes over time – that it is in some ways a living document" that Roberts may seem to be, but I agree that there is plenty of unexplored space there.</p></p> “Both [Scalia and Thomas] consider quite illegitimate the thought that the Constitution’s words should be given up-to-date meanings, as times change. Roberts drew a distinction between original motivation and the breadth of language actually chosen by constitutional draftsmen. One can accept why a provision was put into the Constitution, he suggested, but then see breadth — and some fluidity — in the concepts written into the document.”

Our understanding of the legitimacy of “up-to-date meanings” would be much clearer, I think, if we used distinctions from the philosophy of language to mark a difference between changed meanings, on the one hand, and changed constitutional outcomes, on the other. Using the philosophy of language would help, I think. For what it’s worth, here’s my attempt to do that, defending a half-dead, half-living Constitution. In Fregean language, we can have an up-to-date Bedeutung without an up-to-date Sinn.

I’m not sure if I’m the same sort of “interesting combination of a constitutional ‘originalist’ and a believer that the Constitution changes over time – that it is in some ways a living document” that Roberts may seem to be, but I agree that there is plenty of unexplored space there.

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