Note on constitutional originalism, free will, chance, and meaning

A good argument against originalist views of constitutional law is that people are never fully masters of the meaning (nor therefore, also, the truth) of what they say. Call this the unconscious or just the excess of the said over the deliberately intended, or the reason they had in mind or could give as to why they said it. Because of this, Shakespeare's plays cannot a great number of meanings that, if the Bard were being interviewed and asked his interpretation of any of his plays, his would fall short of what a community of scholars or other readers could find in them. The meaning of a statement or text can be found only in it. That's different from the author's intention. The author's intention in writing the text is, for all we can know, inseparable from the text itself. Asking which meanings were intended (and which ones "accidental") or why they were is a move of representation that starts by doubting the presentation. A famous Jewish joke, recounted by Freud among others, goes: You said you were going to Philadelphia, so that I would think you are going to Boston, when in fact you are going to Philadelphia. (So why did you tell me this?) What is it for a statement to mean some other statement? A similar form of representative speech occurs often in discussions held in some context that is supposedly democratic but there is actually a leader or facilitator who is or represents a boss of meaning. Someone says I believe that the cat is on the mat, and the leader represents the utterance to show that meaning must pass through him or her to validate it. He or she says, so you are saying that the kitten is on the carpet?

Every creation has in it all we could ever discern of the creator's will or intention. This is why in the famous Talmudic story, God's own voice is not permitted to decide the interpretation of a legal statute. It means what it says, and if we want to know how to use or apply it in this case, and so whatever else it says, we ask the work, not the maker. Heck, he might by now have forgotten what he had in mind or just gone on and wrote other things or died.

And the liberty this entails is not a freedom of the will so much as of thought. People are only more or less guilty of what has happened, or not guilty of causing it because someone else is.
Freedom is always a question of the future, not the past; it assumes as given what is, but allows for radical uncertainty about what can be (and what will, which from any standpoint is a product of chance, which is alone how the sum of other causes must be considered). Freedom is not freedom to choose (among alternatives), nor to do or not do, but to make. Reasons, which justify, differ from causes, which only explain, the latter being about how what is was produced from what was, while the former is about what can be. A reason for anything being true or just or valuable, or even to be said to have happened, is (since the meaning or truth of what happened, is always what has happened, in the perfect tense that relates it to the concerns of the present that determine what appears and how it does), always what justifies in the present what we are doing or propose to do in terms of what we want. Reasons do turn on will, at the only moment in which there is something like freedom, which is the time of the now. What is has no reason, but what is being done or said is always such that a reason can be demanded, just as for Kant whatever appears is a presentation that can be considered as a representation that is subject to the empire of one who says “I,” as in "I think,” or “I want” or “I can,” with such statements supplied with any content.

Thus, while it is sometimes thought that God's will is limited by the freedom of the will of persons, this does not solve the problems of theodicy, which turn on correlating good and bad outcomes of teleological actions with the fact of their having been willed or authored or not. Will is limited by will, which is also the legal paradigm of the liberal state: to avoid tyranny, everyone's will to power is limited by that of others as embodied in the state and its ability to enforce your rights to not be subject to my whims, while the state's powers are limited by conditions or counter-powers in a divided state whose parts limit each other. In fact, what limits will is chance, and the consequences are that something like life is possible and not only form. Which also means experience, enjoyment, and happiness, and not only justice. Nature is not governed by any laws except those that cause it and the entities in it to be as they are. Nature, having no will but only blind forces, is not limited by any covenant or law. Nature's principle is chance, not will or law. What is is without justification. The only things that are just or unjust are statements, actions modeled on statements (they are), and situations that can be identified with actions that caused them, or that can modify them. In nature, consequences are greater than causes. As "the child is father to the man," creation itself is the sole authority on the creator, or the creative force, aside from the fact that it is clearly in movement and time, so that we gather that nature is cause of its own increase. Authors are never authorities on what they have created. The only authority to decide the meaning of the text is a careful reader armed with imagination and reason.

This is related to the facts that:
(1) Ad hominem arguments about the meaning or truth (in fact, they are about the validity or moral propriety of being uttered in some situation) of statements are always false;
(2) Culture is not a mask of power. Artworks do not reduce to the social forces behind them (which might make them ‘ideological’ constructions that are used to legitimate social power relationships), just as they do not reduce to the intentions of their authors.
(3) “The Bantu Tolstoy is Tolstoy”: Artworks are not models of the degree of admirable virtue of a community identified with them (thought of as like a collective author).