Philosophy of language and originalism

Chris Green's paper on applying the sense-reference distinction to constitutional law, available here, is interesting, although I find it ultimately frustrating. His claim is basically that originalism, while implausible if taken to mean original references (truth-values, more or less) of constitutional propositions, is bother possible and correct if taken to mean original senses (functions from possible worlds to truth values, more or less). This has some affinities to Jack Balkin's "original principles" approach, and places it within the broader family of "original meaning, not applications" originalisms.

One upshot of this approach is to make clear just how immense is the authority it accords to the constitutional framers. This is because sense determines extension; the job of modern interpreters, once the original sense has been extracted, is merely to slot in the facts of the actual world, as best they know them, and thus discover the truth of concrete propositions ("segregation is unconstitutional"). Not only did the framers get to pick a rule that would decide constitutionality in the world they knew (even if they might have been mistaken about how to follow that rule); they got to pick a rule that would decide constitutionality in all possible worlds, now and forever.

And yet--I repeat myself, perhaps, but I keep seeing the same thing!--just why we are in fact bound to the original sense/intension rather than the current one is almost entirely unmotivated. In Green's defense, he is upfront about this, admitting (on page 16 of 102) that he "cannot here give a full defense of the theory" before pointing, in a footnote, to the possibility of an argument relying on the text's self-understanding as an "historically-embodied textual assertion of authority." In the article itself, he claims that intension-originalism follows from the point of constitutionalism as a set of rules that can stay fixed while applying to changing and unforseen circumstances (16-17). But both arguments seem question-begging to me.

1. The text's self-understanding of its own authority, on its own, is irrelevant. "X. Trapnel's Best Constitution Ever" could claim unlimited and perpetual authority for itself, but it would still have none; the nature of a text's authority must flow from the character of the practices of understanding, interpreting, and applying it. Perhaps Green disputes this, but I had thought this a core tenet of almost all general jurisprudence; even Dworkinian interpretivism starts from the history and point of the practice, rather than the artifactual locus of the practice, in order to get things going.

2. The idea that original-intension/sense is a "natural position to take" because of our concern with the rules as apart from their contingent (and possibly mistaken) applications may be true psychologically--and if so, that does count as evidence, on a practice-based view, for the non-exclusive validity of originalist arguments. But it is hardly the only position, and the normative/practice-based concerns that motivate it actual push the other way. (I'm unsure whether Green is arguing that his theory follows because it best accommodates the objective values of stability and responsiveness, or whether he is making a more practice-based claim about the purposes embedded within American constitutionalism right now, irrespective of their merits. But either way!)

Suppose we accept that constitutional sense/intension determines constitutionality. What does that get us? Not originalism: Green points to Frege's claim that sense remains constant over time, but Chalmers' modern reconstruction, which Green also relies on, abandons this claim as implausible; and even at the same moment, two individuals can assign different intensions to natural kind terms or names. Why privilege the original (standardized across users, let's grant) intension over the current one? Both give us a rule that is metaphysically prior to its applications and can reach unforeseen ones. Moreover, the contemporary intension will do a better job of dealing with vagueness: precisely because it is our rule, not our forebears', we will find it easier to apply.

Worries that relying on contemporary intension/meaning/what-have-you means abandoning constitutionalism entirely are simply misplaced. The common law--which is nothing if not unoriginalist--wasn't just a bunch of lawless judges handing down decrees, pace Bentham (though he may well have been right at the time). Now, there's clearly a difference between interpreting a line of purely atextual decisions and interpreting a written constitution, but exactly what sort of difference is a deeply contingent question. The moves you can make in Australia are different than in Canada, and it's not just a matter of conceptual confusion. I think it rather telling that Scalia's originalist manifesto was titled "Common-Law Courts in a Civil Law System"; that alone should set off alarm bells.

There's definitely an originalist strand in American constitutional practice, but to elevate that to hegemonic status and deny the validity of all other forms of argument seems to require either wishful thinking or explicitly normative arguments--and I think the latter are only persuasive to those who approve of original meaning on substantive grounds, and even then ought to be overridden by procedural concerns.

(If I've misunderstood or mischaracterized the positions here, please correct me!)