Original-Intent Originalism, Semantic Instability, and the Impact of Linguistics on American Constitutionalism: A Reply to Professor Boykin

20 Pages Posted: 16 Nov 2021

See all articles by John A. Bruegger

John A. Bruegger

Southern New Hampshire University

Date Written: November 3, 2021

Abstract

In his recent article, "Original-Intent Originalism: A Reformulation and Defense," Professor Scott Boykin argues that original-intent originalism is the proper interpretive method for deciding constitutional issues. While Boykin argues several points, all of them can be seen as a view of the nature of language that was known but rejected by the Founders when drafting the Constitution. Boykin’s erroneous linguistic argument for constitutional interpretation relies on Hirsch, Wittgenstein, Schleiermacher, and Searle, all of whom wrote their philosophies in the 20th century. Boykin’s argument on interpreting the language of the Constitution is flawed and anachronistic because it applies 20th-century linguistic theory to an 18th-century document. To properly solve the Constitution’s interpretive problem, it is imperative to understand what the Framers understood regarding the nature of language at the time they wrote the Constitution. Did they believe the meaning of words is fixed and static, as Boykin argues, or did they believe that language changes over time? This article will demonstrate that the drafters were heavily influenced by 18th-century political philosophers Thomas Hobbes, John Locke, and Charles de Secondat, Baron of Montesquieu, all of whom wrote on the changing nature of language. Furthermore, the drafters were also influenced by English jurist William Blackstone and his Commentaries on the Laws of England, in which, buried deep in its many pages, Blackstone articulates his view of the changing nature of legal language. These writers were correct in their estimation of the semantic instability of language, whose meaning changes over time and with the circumstances. In other words, the Founders were influenced by this changing nature of language and intentionally drafted the Constitution in imprecise terms to avoid the idea that language is fixed and static. It is through this "original" intent of the fluid meaning of language that the Constitution should be construed.

Keywords: Constitutionalism, Originalism, Jurisprudence, Legal Theory, Legal History, U.S. Constitution, James Madison, John Adams, William Blackstone, John Locke, Language, Linguistics

Suggested Citation

Bruegger, John A., Original-Intent Originalism, Semantic Instability, and the Impact of Linguistics on American Constitutionalism: A Reply to Professor Boykin (November 3, 2021). Washburn Law Journal, Vol. 61, No. ____ (2022, Forthcoming), Available at SSRN: https://ssrn.com/abstract=3955907

John A. Bruegger (Contact Author)

Southern New Hampshire University ( email )

NH
United States

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