Constructing the Constitutional Canon: The Metonymic Evolution of Federalist 10

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What is the connection between what I have called languages, functions from strings of sounds or marks to sets of possible worlds, semantic systems discussed in complete abstraction from human affairs, and what I have called language, a form of rational, convention-governed human social activity?

David Lewis (1)

David Lewis's question about the connection between "semantics" and "language-as-practiced" is, I think, analogous to the question at the center of this discussion, which is: how are we to understand the connection between constitutional text and constitutional meaning? (2) Recent and important work by Keith Whittington and Lawrence Solum approached this question by positing a fundamental distinction between the processes of "interpretation" and "construction" in our legal practices. (3) Put in these terms, the question resounds with echoes of a much older structural debate about the role of the judiciary in constitutional government, and seems to hint that such a distinction, if real, might help us identify the boundaries of legitimate judging. As a dedicated puzzle-solver within Philip Bobbitt's modal paradigm of constitutional theory and discourse, (4) however, I cannot take the hint as offered because I do not believe that the legitimacy of a constitutional practice rests upon externally imposed foundational or normative theories--theories that seem to suggest that there could be one correct kind of connection between Lewis's categories of "languages" and "language." Instead, I believe that legitimacy in constitutional practice arises when we follow certain organic, internally generated argumentative rules closely enough that other practitioners can recognize and comprehend--if not always endorse--our assertions of constitutional meaning. This is not to say that I am insensitive to the attractions--the allure of objectivity and constraint--that normative theories present. Nor do I doubt that the interpretation-construction distinction can be an important part of a precise species of historical arguments about constitutional meaning in a limited class of cases. The point, rather, is that I do not believe that, in general, these kinds of objectivity and precision are definitive or limiting features of our argumentative practices--those social processes by which we currently decide upon constitutional meanings. But, I hasten to add, I do not accept that this final assertion relegates me to the margins of contemporary theory, where I might commiserate with the legal realists about the vagaries of an unconstrained judiciary. To explain why, I must begin by briefly outlining the Wittgensteinian underpinnings of Bobbitt's modal theory.

One of Ludwig Wittgenstein's fundamental purposes in the Philosophical Investigations was to reject the search for a unified account of language's internal logic, which had occupied the bulk of his only published work: the Tractatus Logico-Philosophicus. (5) Rather, the later Wittgenstein suggested that language is not one activity, but a variety of different kinds of activities, each with different rules and purposes. (6) Across the spectrum of these myriad "language-games," the same word often serves a variety of different--though related--functions, each specific to the particular "game" within which it is employed. From this it follows that a word's meaning often does not derive from some foundational referent in the world, but, rather, is determined by the use to which it is properly put within a particular language-game. (8) The properly part is critical, for it precludes the impossible suggestion that a word can mean whatever we want to use it to mean, and, instead, grounds the generalized claim that "the meaning of a word is its use" in a more specific account of what it is to understand and follow the rules of a language-game. (9) Without getting too deeply into Wittgenstein's complex and controverted theory of how we identify, understand, and follow these rules, it is essential to remember that obeying a rule is also a social practice and "[h]ence it is not possible to obey a rule privately. …