Kevin Baker at
The Smallest Minority is presently in a debate with another writer about gun rights and the meaning of the Second Amendment. Although I think that Kevin and I will largely agree about the individual right to keep and bear arms, we seem to approach it from somewhat different directions.
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:
CHICKENNeither 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.
That's the stand that Mark Kirkorian takes in this confusing post at the National Review's flagship blog. Among the vegetarian arguments that he addresses is that animal husbandry is often cruel in is methods of slaughter:
Antonia Griva
