This question of meaning is the heart of historical practice, much as it is the heart of analytic philosophy, so holding this conference is not a mistake. Still, analytic philosophers (the qualifier “analytic” almost seems superfluous these days) seem to me not to like thick description. They know what things, mostly words or concepts, mean. They are just not very precise about exactly to what activities in the world these words or concepts might apply. And, unlike historians (and lawyers, I might add), they do not much like analogy as a form of understanding. The point of the philosophical activity seems to be to liberate “is” from “like” or “as.”
Article
Intellectual History and Constitutional Decision Making: A Commentary on Solum’s “Intellectual History as Constitutional Theory”
In his article for this symposium issue of the Virginia Law Review and in other places, Professor Lawrence Solum has set forth an elaborate taxonomy for judges and commentators who want to privilege originalist methods of interpretation and construction in constitutional cases. Solum’s taxonomy addresses several important issues in the philosophy of language that I will not take up in this Commentary. My concern is with the question with which Solum begins his article: What role, if any, should intellectual history play in constitutional theory? My approach to that question bypasses many of the issues to which Solum directs his attention and focuses instead on ones that I believe go to the heart of the question.
Unintended Implications: A Commentary on Mikhail’s “The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers”
In an elegantly written article, John Mikhail claims that the Necessary and Proper Clause of the Constitution grants to Congress an implied power to promote the general welfare. He is not talking here about the power needed to carry out the enumerated powers of Article I, Section 8. Rather he argues that the clause grants to Congress the power to enact laws that are necessary for the government of the United States to fulfill its purposes—one of which is to promote the general welfare of its people.
Mikhail builds his argument for this provocative and interesting claim using the contributions of philosopher of language Paul Grice. For Grice, language is a cooperative enterprise and is thus governed by the principle that contributions to conversation should help facilitate the purpose of the particular exchange. Mikhail is particularly focused on Grice’s distinction between entailment and implicature. Roughly, an entailment derives from the semantic meaning of the statement alone while an implicature derives from the semantic and pragmatic meaning—the words in the particular context.
To elucidate the Gricean idea of “implicature,” Mikhail focuses on a modified version of Grice’s example of the recommendation letter that damns with faint praise. In Mikhail’s example, a fictional Professor Larry Lessig recommends a prospective law clerk to Judge Richard Posner by noting that the student is “unfailingly polite and punctual” and dresses extremely well. The implicature of this letter is, according to Grice and Mikhail, that the student (Jones) is weak. We know this is what the letter means “by virtue of the premise that the speaker is cooperative and . . . we infer that Jones is a poor student because we know or assume that a recommendation letter should highlight the most favorable things that can be said about a candidate.” In other words, the “context and background assumptions” give the positive comments about Jones’s punctuality and sartorial flair a different meaning.
Mikhail uses these insights about language and communication to say something about constitutional interpretation. But that is where the trouble begins. While Mikhail offers a masterful textual analysis of the Necessary and Proper Clause of the Constitution, I am not convinced that his analysis demonstrates its meaning, and if it does, I fear that Mikhail’s efforts yield the perverse consequence of delegitimizing the very document he is at great pains to enlarge. In what follows, I raise three worries about Mikhail’s analysis. First, a constitution is not a conversation between its drafters and some other people and, as a result, it is unclear whether the Gricean paradigm has anything useful to say about constitutional interpretation. Second, it is far from clear what a constitution is for and consequently there are unlikely to be accepted conventions about how to interpret the meaning of statements within them. Third, Mikhail’s article presents evidence that the Constitution’s drafters were strategic and crafty. But if the drafters are violating the cooperative principle Grice identified, this fact calls into doubt the significance of the ratification of the Constitution from which that document, purportedly, derives its legitimacy.