Will Baude's post on this week's session of his course (with Eric Posner) on originalism: Originalism and 'Accounting for Change'. He invokes this article by Originalism Blog co-blogger Chris Green: Originalism and the Sense-Reference Distinction. Baude comments:
Green’s article remains one of the most important and underrated contributions to originalist theory. The key point is that in trying to figure out when changed circumstances can be accommodated by the text, we should look to what philosophers call the “sense” of the provision (as distinct from its “reference”). If the Constitution says that Congress can create “armies,” then those armies can be of all different sorts (including air units) even though there was no specific example of an aerial army at the time of the founding. If the Constitution refers to “property,” that can include cars, not just buggies. And if the Constitution refers to “cruel and unusual punishments,” then that depends on the test for cruel and unusual punishments, not simply a list of what punishments people might have thought flunked the test.
The result is that some change can be accommodated by the text and some cannot. It is a problem to be solved by looking at the text. As Green puts it, “The choice of language is a choice about what sorts of changes should make a difference to the set of future applications.”
Posted at 5:45 PM