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The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers

41 Pages Posted: 24 May 2015 Last revised: 11 Jun 2015

John Mikhail

Georgetown University Law Center

Date Written: May 23, 2015

Abstract

The main purpose of this Article is to begin to recover and elucidate the core textual basis of a progressive approach to constitutional law, which appears to have been embraced in essential respects by many influential figures, including Wilson, Hamilton, Marshall, and the two Roosevelts, and which rests on an implied power to promote the general welfare. To pursue this objective, the Article relies on two strange bedfellows: the law of corporations and the philosopher Paul Grice. An ordinary language philosopher like Grice, who writes about truth-functional connectives, bald French kings, and the like, might seem like an unlikely ally to enlist in this endeavor. As this Article seeks to demonstrate, however, underestimating the significance of Grice’s ideas for constitutional law would be a mistake. Plausibly interpreted, the Constitution vests an implied power in the Government of the United States to promote the general welfare, and Grice’s distinction between semantic and pragmatic implication is a helpful means of understanding why. After a general introduction, the Article first summarizes some key aspects of Grice’s philosophy of language and then briefly illustrates their relevance for constitutional law. The remainder of the Article is then devoted to explaining how, along with a relatively simple principle in the law of corporations, according to which a legal corporation is implicitly vested with the power to fulfill its purposes, Grice’s distinction between semantic and pragmatic implication helps to illuminate a thorny problem of enduring interest: What powers does the Constitution vest in the Government of the United States?

Keywords: James Wilson, Charles Beard, James Madison, Gouverneur Morris, Paul Grice, constitution, implication, implicature, entailment, semantics, pragmatics, implied powers, enumerated powers, preamble, vesting clause, necessary and proper clause, sweeping clause, tenth amendment, originalism

Suggested Citation

Mikhail, John, The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers (May 23, 2015). Virginia Law Review, Vol. 101, No. 4, 2015. Available at SSRN: https://ssrn.com/abstract=2609739

John Mikhail (Contact Author)

Georgetown University Law Center ( email )

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Washington, DC 20001
United States
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202-662-9409 (Fax)

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