His opponent strangely asserts that the original intent of the amendment was not to protect that individual right, but I'm not going to get into that right now. Kevin responds:
Obviously, the Founders didn't all hold one homogeneous intent that became each part of the Constitution, instead they wrote law, and in law it isn't the intent that matters, what matters is what the words say and how they are understood at the time they were written. This is called "Original Understanding Theory." There is a third, "Original Public Meaning." All three theories carry the moniker of "Originalism," but Original Understanding is the theory under which law is supposed to function, and it is the one most accepted by "Originalists" on the courts today. What was intended doesn't matter. What it says is.
I disagree. Original intent is the only legitimate approach to understanding communication (oral or written) because communication is an attempt to convey the internal workings of a mind outside of itself. Language is nothing more than an approximation of thought, a code used as a substitute for thoughts. Words, in their various forms and arrangements, have no instrinsic meaning. They simply stand as crude replacements for the actual thought. Example:
dholghuwehfo dfuhywe pgjh vn myw idfmn
What does this mean? Unless you know what the code is, this is gibberish. But then, all language is gibberish (that is, without meaning) unless the reader/listener knows the code. Words, if spoken, are simply particular sounds. If written, they are only specific drawings. To say "What it says is" asserts an objective reality to that which is only a reflection of the actual reality, which is the thought that originated the communication.
Here is an example. This is not a chicken:
Neither is this:
The first is a word that represents the bird in the English language. But not if you don't speak English. If you don't speak English, it's just a bunch of angular black markings. The second is not a chicken either. It's a picture of a chicken. Both are drawings that represent my mental concept of a chicken (but not necessarily yours), but neither is an actual chicken, or else you would be able to eat it.
Nor are they equivalent. The expression does not equal the concept. The first does not even look like a chicken, and the second is not even a picture of a chicken. It's a drawing representing a chicken, but not a picture of an actual chicken. We look at the drawing and guess that it stands for a chicken, but if it were a substantially more abstract drawing, we wouldn't even know that. It is only because it approximates a two-dimensional expression of a chicken that we share in common that we are able to communicate the concept of 'chicken' through it. As an objective reality, neither is an actual chicken.
The only way that a language could be objective is if all of its components are operating from an agreed-upon code. If, let us say, the authors of the Constitution had a fixed dictionary in the words had only one meaning and only certain constructions thereof had discrete functions, then one might say that it would be possible to objectively know the meaning of their text.
But language very rarely operates this way. Only constructed languages could even attempt it. Natural languages -- those that spontaneously form and change over time as they are used by a population -- can be roughly understood by philologists, but their meanings cannot be contained because users use words based upon what they think that they mean, not what official dictionaries and grammars say that they mean.
It's possible to gain a sense of what the authors of the Constitution thought that words and phrases meant by reading documents of the era to see how words were used in relation to each other. But this data set is vastly incomplete because it does not even come close to encompassing every use of the words and phrases that they used. Our data set consists entirely of a comparative handful of surviving written communications, and none of the oral communications whatsoever.
We may, however, make good guesses about what the authors of the Constitution meant by a written expression by analyzing how these words and phrases were used in the context of their writings. But we cannot know with objective certainty in the same way that we can know that 2+2 will always equal four.
Even though this is an educated guess, it is a superior way of knowing than asserting that units of a language can have objective meanings. Remember that these units of language are communications -- imperfect attempts to express inner thought to an outer world. If you're not attempting to discern what the speaker or writer is trying to communicate, then you're rejecting communication conceptually. And if you're rejecting communication, then uses of language might as well be random.
But for a moment, assume that language meaning can be objectively knowable. How would you test the hypothesis "Communication X represents concept Y"? If X and Y are not placed in reflection of other uses of X and Y, and there is no codebook in which to look up X and Y, how can their meaning be known?
This problem does not go away, as Kevin suggests, because a unit of language is a law. Laws remain attempts to communicate concepts. If you're rejecting original intent, you're deciding not to try to discern the communications of the authors of the law, and are left without any guide as to what the words and phrases in a given law mean.
"What it says is" simply isn't knowable. What the writers were trying to say is, at least, researchable.
12 comments:
John:
When it comes to law, what is important is not the intent, but what the words mean.
I'll give you an example from my experience; gun control.
In 1994 the Federal government passed an "Assault Weapons Ban." The title of the legislation was, in actuality "Violent Crime Control and Law Enforcement Act of 1994" Title XI, Subtitle A of that bill was called "Assault Weapons," and Section 110102 was titled "RESTRICTION ON MANUFACTURE, TRANSFER, AND POSSESSION OF CERTAIN SEMIAUTOMATIC ASSAULT WEAPONS."
The Congress and the media told us endlessly that the intent of the legislation was the banning of ASSAULT WEAPONS.
But that's not what the words said. The words made illegal nine specific firearms by their trade names and/or model numbers. It also laid out certain combinations of features that were restricted.
So, on the one hand we know what Congress said they intended.
And we know what the words in the law said.
And we know what the results were.
I own an AR15 rifle I had custom-built. It doesn't have a collapsable stock, nor a bayonet lug, but pre-ban 30-round magazines work in it just fine, and it cycles just like every other AR15 rifle ever made.
Congress may have intended to write law banning all AR15 rifles, but they managed only to ban the ones built by Colt. Mine has a Bushmaster lower receiver, FN Herstal upper receiver and parts, a Douglas premium barrel, and a Jewell trigger - and it was perfectly legal.
Legal language is a thing unto itself, and the meaning had better be crystal clear. The "Assault Weapon Ban" language was, and the courts treated the meaning of the words as binding, not the advertised "intent."
In my opinion you have performed a reductio ad absurdum with the original quote and have committed a strawman fallacy in doing so.
The original author asserts that law can be interpreted by reading the law as written without regard to intent. You set up a related proposition that states that words have no meaning without intent and carried it to a logical extreme by saying that language cannot convey intent because it is only a symbolic representation of intent and not the actual intent. You then conclude that language carries no meaning because language itself is only a substitute for and is not the original intent. That is where you set up a strawman to the original authors argument.
In fact language can and does carry meaning separate from intent. The fact that that meaning may be different from intent does not negate the formation of meaning. If you want to make your point, and nullify completely the orignalist theory that law should be interpreted as written without reference to intent, you need to prove by different means that langauge absent intent cannot communicate anything. Which I highly doubt can be done.
. . . you need to prove by different means that langauge absent intent cannot communicate anything.
That's called critical language theory, much in vogue among the Progressive Intelligentsia. That way they can find any meaning they want in any sentence they choose.
So, I'm wondering, does...
dholghuwehfo dfuhywe pgjh vn myw idfmn
mean anything? IS there a code there is it merely gibberish?
John writes, "The only way that a language could be objective is if all of its components are operating from an agreed-upon code."
But even then language is not objective because of the need for a code at all. The agreed upon code has a narrative context.
Kevin, I get what you're saying. But I think that we're describing different types of scenarios.
In your example of the assault weapons ban, I think that there are a few possible explanations between the disconnection between what Congress said they intended and what effect the law had:
1. Congress lied about its intentions.
2. The bill was so complex that members didn't understand the specifics of the law that they were passing. And possibly didn't even read it.
3. Congress was being honest, but the law has been misapplied by the courts. In which case, the problem isn't what the words mean, but how they were used.
The last possibility is hypothetically possible, but far fetched. I think that the first two are more likely, especially given their track record.
But there's a difference between trying to express one's thoughts in a lenghty law, and trying to do so in a single sentence. Because the Second Amendment is only one sentence long, and its meaning was debated by members of the Constitutional Convention at length, it is possible to gain a sense of what they were trying to express in it.
And really, what choice to we have? How can we objectively know the meaning of any word in that sentence except by examining it in the context of its usage at the time, and the writings of its authors about what they were attempting to accomplish?
How, for example, would you define the term "bear" in the sentence without refering to some external source?
How can you know that a word means something -- anything -- objectively?
Larry B wrote:
You then conclude that language carries no meaning because language itself is only a substitute for and is not the original intent. That is where you set up a strawman to the original authors argument.
Language is a substitute for original thought, not the original intent.
In fact language can and does carry meaning separate from intent. The fact that that meaning may be different from intent does not negate the formation of meaning.
If a unit of language can have an objective meaning, how? How would you go about knowing the meaning of a unit of language that does not refer to outside of that unit?
Dan wrote:
mean anything? IS there a code there is it merely gibberish?
Without any context from a written language, or code from a purely constructed one, there's no way to tell.
Allan wrote:
But even then language is not objective because of the need for a code at all. The agreed upon code has a narrative context.
Please explain.
On the whole John, I think your reasoning fits right in with those authors I had to read in my Philosophy class... they tended to twist my mind into a pretzel!!
Do 2+2 = 4 in another number base?
No, but if you cover all of the variables such as number base, you can come up with a definite answer in math. With language, the possible available permutations are infinite.
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