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Philosophical Foundations of Language in the Law$
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Andrei Marmor and Scott Soames

Print publication date: 2011

Print ISBN-13: 9780199572380

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780199572380.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2022. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use.date: 26 January 2022

Textualism and the Discovery of Rights 1

Textualism and the Discovery of Rights 1

(p.105) 6 Textualism and the Discovery of Rights1
Philosophical Foundations of Language in the Law

John Perry

Oxford University Press

This chapter argues that we need to distinguish meaning-textualism from conception-textualism. The former is the view that in interpreting the constitution and other statutes, the starting point is the meaning the words and phrases used in the text had at the time the text was written. The latter is the view that the starting point is the conceptions the writers and intended readers of the text had. It is argued that the former is a plausible approach to interpretation, the latter being confused and hopeless. Meaning-textualism leaves open several possibilities for the establishment or discovery of new rights, contrary to what some proponents of textualism have stated. The chapter illustrates the differences by examining the text of the eighth amendment, prohibiting cruel and unusual punishments, which, it argues, has been weakened to the point of irrelevance by confused thinking of matters of interpretation.

Keywords:   textualism, Scalia, meaning, conception, cruel, unusual, punishment, eighth amendment, interpretation, philosophy of language

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