Originalism and the Sense-Reference Distinction
74 Pages Posted: 12 Sep 2005
I deploy the sense-reference distinction and its kin from the philosophy of language to answer the question what in constitutional interpretation should, and should not, be able to change after founders adopt a constitutional provision. I suggest that a constitutional expression's reference, but not its sense, can change. Interpreters should thus give founders' assessments of reference only Skidmore-level deference. From this position, I criticize the theories of constitutional interpretation offered by Raoul Berger, Jed Rubenfeld, and Richard Fallon, and apply the theory to whether the Fourteenth Amendment forbids racial segregation in public schools.
Keywords: originalism, constitutional interpretation, philosophy of language, Frege, Mill, Carnap, sense-reference distinction, intension-extension distinction, connotation-denotation distinction, Brown v. Board of Education, Jed Rubenfeld, Richard Fallon, Raoul Berger, Michael McConnell
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