Let's do Some Philosophy Boys and Girls - Constitutional Interpretation 101

To increase readership, I thought I'd go back to my intellectual roots. Hang on boys and girls. Kant's right around the corner.

No, just kidding. its Rorty! Aaaaahhhh!

BTW, the "increased readership" comment is a joke - I'm not delusional. Many of my students refused to read philosophy when they were being graded on it.

At any rate . . .

Conservatives have long made fun of the idea that the United States has a "living constitution" in the sense that the document's "meaning" changes over time. This will be the first post of a two or three post series defending the claim that we have just such a living constitution. In this post I will describe the ways in which the meaning of concepts, terms, statements, and even imperatives, change over time. In an upcoming post, I'll argue that the claim that we have a living constitution fits perfectly with the way language changes over time. In the third post, I'll deal with loose ends and criticisms of my theory.

1. Concept Evolution: Connotation and Denotation

Logicians typically distinguish between the “connotation” and the “denotation” of a concept. By “connotation,” logicians mean the set of ideas that constitute the heart of a concept, or that capture its essence. By “denotation” logicians mean the set of things constituting all the qualifying instances of a concept. Consider the following examples. The connotation of the concept “even number” is “a whole number divisible into two equal whole numbers.” The denotation of “even number” is the set “2, 4, 6, 8 . . .” The connotation of “odd number” is “a whole number not divisible into two equal whole numbers.” The denotation of “odd number” is “1, 3, 5, 7 . . .”

Because mathematics is a precise and relatively fixed language, a language unaffected by developments in human knowledge, achievement and culture, its terms and concepts are entirely stable. Neither the connotation nor the denotation of “even number” or “square root” will ever change. But this is not the case with non-mathematical concepts. The vast majority of non-mathematical concepts evolve in response to changes in human understanding and circumstance. Changes occur in both the connotations and denotations of concepts expressed via spoken language, even when the words expressing the concepts remain unaltered.

There are, for example, a variety of “open” concepts whose boundaries are inherently fluid. With these concepts, we see regular change both in their connotations and denotations. Concepts like “happiness,” “success,” and “acting morally,” evolve both in terms of their core meanings and regarding the sorts of dispositions or actions that people count as qualifying instances. At one point, or for some people, “being moral” will connote “obeying God.” But at a later point, or for different people, “being moral” will connote “respecting other people’s rights.” And even within a unified and stable connotation of “being moral,” denotation changes will occur when we change our minds about what God commands, or what rights other people actually have.

However, most concepts are more closed than the inherently fluid examples I just mentioned. By “closed” I mean that they are more stable and precisely defined. Because of this, we mainly encounter change in the denotations of concepts. Technological, intellectual, and social progress frequently forces us to alter our understanding of a concept’s denotation without requiring any corresponding change in its connotation.

Consider, for example, the concept identified by the term “skyscraper.” The connotation of “skyscraper” is something like “an unusually tall building.” That connotation has changed little, if any, since the term was first coined. But advances in human engineering have changed the denotation of “skyscraper” dramatically. Whereas an eight-story building qualified as a “skyscraper” once upon a time, the vastly taller buildings of modern cities have driven small buildings entirely out of the concept’s denotation. By this I mean that most people no longer consider eight-story buildings skyscrapers. Nor do they think of eight-story buildings when they hear the term “skyscraper.”

There are numerous examples of such “denotation only” change as it occurs in concepts governing various areas of human life. Terms like “chic,” “reasonable,” “educated,” “masculine,” and “mid-life,” all identify concepts where changes in human circumstance alter a concept’s denotation, while leaving its connotation entirely in tack. Ordinarily, denotation change is a sub-conscious process that few notice as it occurs, and few object to after the fact. But even when denotation change is conscious and deliberate, we frequently welcome it because the updates allow us to more effectively realize our goals.

For example, when new information forces nutritionists to revise their recommendations for maintaining a “healthy diet,” we welcome the denotation adjustment. A “healthy diet” continues to connote “the regular intake of foods contributing to physical health and long life,” and this connotation stability keeps language usable for thought and communication. But the denotation shift provides us with a more accurate understanding of what a “healthy diet” involves, and this renders our application of the concept more effective. That is, it allows us to eat more healthily.

2. Connotation, Denotation, and Textual Interpretation.

The first thing to notice regarding concept evolution and textual interpretation is that connotation shifts are earth shaking in comparison to denotation shifts. It’s one thing to grasp that the concept “healthy diet” no longer denotes the consumption of a particular type or amount of food. It would be quite another thing to be told that “healthy diet” no longer referred to “the regular intake of foods contributing to physical health and long life,” but instead referred to an entirely new set of ideas. Denotation change usually affects only the outer boundaries of a concept. Connotation change, to the contrary, modifies a concept’s essence. This means that connotation change is a far more radical type of meaning change and, for this reason, usually provokes significant interpretive resistance.

The second thing to notice is that the question “What does that term, (or concept, or statement) mean?” requires additional clarification. This is because “mean” in the question “What does that term (or concept, or statement) mean?” can refer to a concept’s connotation only, its denotation only, or both.

Consider the biblical admonition to “love your neighbor as yourself.” A person asking “what does that passage mean?” may alternatively be expressing:

1. Uncertainty about the concept of “love,” in so far as love can be commanded (i.e., uncertainty regarding the connotation of love);

2. Uncertainty about what “love” requires in terms of their actual conduct towards others (i.e., uncertainty regarding the denotation of love);

3. Uncertainty about whether “neighbor” is to be understood relationally, or geographically, or more broadly so as to encompass community members in general (i.e., uncertainty regarding the connotation of "neighbor");

4. Uncertainty about whether a particular person counts as a “neighbor,” even when the criterion for “neighbor” is specified (i.e., uncertainty about the denotation of neighbor).

Such a person may also be confused about:

5. Any combination of these connotation and denotation issues.

Moreover, there are other possible uses of the term “mean” in “What does this term (or concept, or statement) mean?” For example, when a client posses this question regarding the terms of a contract they have entered, they are asking me about the effects of contract terms on their future business activities, e.g. "what does this mean in terms of what I have to do." “Payable on Demand” neither connotes nor denotes asset liquidation, but it may imply this in a particular circumstance. For this reason, this and other uses of the term “mean” must be included in any comprehensive account of textual interpretation. However, because the point of this series of posts is to argue for the legitimacy of a particular interpretive posture regarding constitutional language, I will leave these and other complexities out of the analysis.

Had enough for now! Okay. Tomorrow (or so) we'll apply this to our understanding of the constitution.

Joe H.