Larry Alexander sobre "La Constitución sin Sentido"
Larry Alexander (University of San Diego) has posted Our Meaningless Constitution on SSRN. Here is the abstract:
- Good old-fashioned originalism relies on a key insight about the nature of communication by language. The meaning of a text or oral communication just is the intention (or mental state) encoded in language by the author. Interpretation of a text is decoding--the translation of the text into a mental state in the reader that corresponds to the mental state of an author. The so-called "new originalism" has no adequate account of meaning that does not rely, either overtly or implicitly, on the constitutive relationship between encoded mental states and meaning.
Some of the so-called new originalists have argued against good old-fashioned originalism on the grounds that the meaning of texts with multiple authors cannot cannot be explained by the encoded mental-states model in cases in which the authors have different mental states. For years, I have maintained that this objection simply misses the point. It is true that texts with multiple authors will fail to mean if the mental states of the authors are not in unanimous agreement, but this does not establish the conclusion that the encoded-mental-states model is false. Rather, the conclusion of the argument is that some texts are simply meaningless.
I now spell out the implications of this point for the Constitution of the United States. Even a cursory examination of the historical record surrounding the framing and ratification of the Constitution of 1789 reveals that there is no single issue on which the mental states of the authors (the framers and ratifiers) were in unanimous agreement. The consequence is that the Constitution of the United States is literally "meaningless." The best interpretation of the Constitution is that the set of meaningful provisions is an empty set, and therefore, that the Constitution failed to make law.
The fact that the United States does not have a legally effective Constitution creates an urgent problem. Moreover, that problem cannot be remedied by replication of the original process of framing and ratification, since the problem of multiple mental states would simply recur. The only solution to this problem is a constitution-making process in which the work of framing and ratification is done by a single individual. This in turn creates a coordination problem--because the legislative mechanisms by which such an individual could be designated are themselves meaningless and therefore without legal significance.
- I argue that there is a natural coordination point for the resolution of this problem--recognition of the constitutive authority of the current President of the United States. The article concludes by urging President Obama to promulgate a new Constitution, which confers legislative, judicial, and executive authority on a single individual, thereby creating a mechanism for the creation of meaningful and authoritative law. The obvious candidate for this new position, which might be designated as "Absolute Sovereign," is President Obama himself.