Expected applications, contextual enrichment, and objective communicative content: The linguistic case for conception textualism

Abstract

Textualist and originalist legal reasoning usually involves something like the following thesis, whether implicitly or explicitly: the legal content of a statute or constitutional clause is the linguistic content that a reasonable member of the relevant audience would, knowing the context and conversational background, associate with the enactment. In this paper, I elucidate some important aspects of this thesis, emphasizing the important role that contextual enrichment plays in textualist and originalist legal reasoning. The aim is to show how the linguistic framework underlying sophisticated versions of new textualism and public-meaning originalism can help to shed important light on the plausibility of what John Perry calls conception textualism. Contra Perry, I do not think that conception textualism - arguably best classified as a version of expected-applications originalism - is confused, implausible, and unworkable. I also briefly compare my linguistic case for conception textualism with Justice Scalia's nonlinguistic argument for it, the main premise of which concerns the constitutive function of constitutions.