By Aidan E. Wright.
Debates over judicial philosophies of interpretation are not new, but the recent changes in the makeup of the Supreme Court have thrust these debates even further into the public eye. Debates over originalism in particular are more alive than ever. These debates raise issues that are especially difficult to navigate because they are not exclusively legal in nature—they involve philosophy, linguistics, sociology, and history, requiring judges and professors to step outside their legal wheelhouses. One such example involves the attempts of scholars to argue against originalism by marshalling the philosophical ideas of Ludwig Wittgenstein. These scholars have argued that the nature of language is fundamentally incompatible with originalism as a theory of interpretation. Critics broadly argue that Wittgenstein’s arguments against metaphysical philosophy apply similarly to originalism, rendering it nonsensical. More specifically, they argue that Wittgenstein’s conception of language illustrates how any attempt to ground the meaning of constitutional language in “an ontologically independent, objective Constitution” leads only to endless confusion and must be transcended by the recognition that our constitutional practices or modalities alone, none of which can be more preeminent than the others, give meaning to our law- statements. In a similar vein, some critics suggest that Wittgenstein’s notion of a “language game” renders impossible any attempt to fix meaning at a particular point in time, thereby undermining modern originalism’s emphasis on original public meaning. A few scholars have responded to these arguments, yet these responses have ranged from mere dismissals of Wittgenstein’s relevance to firm but unelaborated disagreements. Full Article