Abstract

The resurgence of the new "originalism" among conservative American law professors is an intellectual movement that fundamentally misunderstands philosophy of language and law. The central problem is that most constitutional words are what Wittgenstein called "family resemblance ideas." This means that they consist only of a cluster of ideas that can be carried forth or implemented in numerous ways and formats. For example, what "cruel punishment" means linguistically are those choices, X, selected from an array of options, any combination of which bears a family resemblance to each other, had they been X. When generations make these choices to assemble their cruel-punishment "products," they are making "protocol choices." The central mistake of the new originalism is that it equates the protocol choices made by the framing generation with the meaning of the words in the constitution that necessitated the protocol election in the first place. This is a language fallacy. The meaning of language is always its use within the language culture, not the election of its cluster protocol. Hence, all that the framing generation ever gives us by way of their specific policy choices are illustrations of constitutional ideas. They do not give us the meaning of those words. Therefore, any generation that implements a legal rule containing a family-resemblance idea can only provide subsequent generations with suggestive guidance on how to carry out the rule. The new generation is always free to construct its own family protocol, so long as what it chooses belongs linguistically to the word's family-resemblance. What this means is that more than one culture across time can follow the same law differently, with each being obedient to its "original meaning." Also, unless law specifically says so, it never enacts any generation's cultural protocol. This is because the purpose of law is to regulate culture, not to sanctify it. Hence, culture is free to evolve and create new protocol that does not violate the grammar of the constitution.