As a fan of Michael Anton’s writing and an opponent of birthright citizenship, I’m truly bummed to find that his interpretation of the 14th amendment is even more of a Hail Mary than it appeared.
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This is incorrect. Original public meaning plus the actual facts can yield outcomes outside the Overton window--if factual beliefs at the time a provision was framed and ratified turn out to be substantially incorrect. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3175412 …
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Added that paper to my reading list. Your argument makes sense for mean-reverting phenomena, but not stuff that represents a step function change—nuclear weapons, oil, mass media, crossbows, the stirrup, etc. New technology rewrites rules.
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Interesting claim, I'd love to see it developed in depth in the context of the philosophy of language & theoretical linguistics.
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I should do this! My main exposure to the philosophy of originalism is reading Scalia opinions and some Strauss stuff—no real linguistics background. But is it a linguistics problem per se? Not about how things are described, but the existence of previously indescribable things.
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There are two issues: (1) what is the communicative content (linguistic meaning in context) of the text & (2) what legal effect do we give to the text. The first issue is very much a matter of the philosophy of language and theoretical linguistics. Secon issue is normative.
End of conversation
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