(discussing my paper with chris green on conlawprof)
Hi Chris. Just a couple of thoughts while I am still grading exams today ....
The key issue here seems to be twofold. (1). Whether it is POSSIBLE to have a "constitution" that has a fine print clause that made the meaning of its words NOT be the meaning of its words (denying brains their ordinary cognition of those words). And (2), whether there is any way that our constitution can be said to have this in Article VI, using methods OTHER THAN originalism (because that involves a language fallacy and begs the question).
Please note that if our constitution had such a clause, it would make the meaning of the words idiosyncratic. Sort of like a private language. It would mean that "cruel" meant the 1787 "grocery list" rather than what the term really means (which is, "assemble such a list"). I address this philosophically in chapter 2 of my paper. The only kinds of words that do this in the language culture are forms of tautological jargon. You seem to think that legal jargon does this too. It does, but not with ORDINARY words. A perfect example is Schedule II Controlled Substance. That is a word which says "use only this grocery list." So if the constitution had said, "apply the Cruelty Protocol System of 1787," and then defined this, we would say it was legal jargon that performed the cognitive task that you are trying to impose upon ordinary words. (Please see Chapter 2, part III).
So what I am saying is that a fine print clause, if true, would make every word in the constitution a protocol-bearing word. Surely, for our Constitution to have such a clause, it would have to say it in language, not in the protocol of language. It may be an historic question what any particular generation had in mind whenever it enacted something, but it is an ANTHROPOLOGICAL question what the words of their speech meant culturally. And hence, anything that looked for some historical artifact would by definition be looking only for what I call "artisan logic" rather than "telephone logic." (See Chapter 2, page 26).
Now, you seem to be saying in your indexicals paper that the very term "constitution" means "a protocol-word document." This reminds me of those who say that "marriage is between a husband and wife." (See Chapter 2, 31-35). The problem here is twofold: (1) you would have to show that this was true anthropologically (not in legal documents, but in the semantic culture); and (2) you would have to show that this was not itself a sense of talking (compare: bachelor [same portion of my paper]). You also are going to have to deal with the fact that constitutionalism was new and that, like the term "science," its lexicon develops.
Here's the bottom line. Given what we know about the cognition of language, it would be extremely difficult to say that "constitution" is NOT a family resemblance word. It seems that the best you can hope for is that anthropology might say it had a peculiar sense of talking within its family cluster (something I still don't believe yet).
One of the things that is critically important here is this: what does a democratic ritual "pass?" I contend it passes only its language. Do you disagree with that? Because that means that any sense of "constitution" that is in the lexicon back then is fair play today (without even getting into the issue of lexicon growth over time)
I've got to run. Let's continue to discuss tomorrow or the next day. (More to say later).