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August 10, 2009

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Michael Drake

You'd said in an earlier post that Larry is basically applying a Gricean framework to originalist analysis. How does that cohere with the fixation thesis? For instance, it's difficult to see how the cooperative principle could extend through time to operate on the conversational exchange between framers and latter day interpreters - the latter who might be unable, or possibly disinclined, to understand the constitutional "utterance" (as it were) in the same way former were. (I'm sure this is a general interpretive point dealt with in the philosophy of language literature, but I'm not hip.)

T. Gracchus

I do not think Solum can establish the fixation thesis, at least not without adding a good deal to the theory. One aspect of the problems is the gap you have identified -- there is cooperation of the expected type given the odd nature of the utterance. I think Solum's approach is to take the Constitution as if it were the statement of one person to one other person, and just substitute in the groups. There just aren't any genuine exchanges -- Adams and the rest are dead.
One way to address your specific point, is to look at Solum's discussion of context. I think that encompasses the explanation of legal content, which is at the center of the cooperative activity in understanding the Constitution. But I am not sure.

I have not gone back to re-read Grice or the many updates, so there are limits to the analysis.

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