Responding to my post from yesterday on semantic originalism, Saul Cornell writes:
I wonder if one would need to add one more problematic area in your scheme of potential problems in establishing public meaning. Do you need to add something like essentially contested concepts as another problem area? How does public meaning originalism deal with something like necessary and proper? Does this fit your vague or ambiguous category or is this an example of an essentially contested concept? Also, if we assume that Powell was correct on the history (a controversial claim to be sure) what happens to plain meaning originalism if the Founders did intend ratifer intent to control because of their theory of popular sovereignty?
So far as I know, the concept/conception distinction originates with "Essentially Contested Concepts," a paper written by the philosopher William Gallie in 1956. The core of Gallie's argument was the idea that certain moral concepts are "essentially contested." "Good," "right," and "just," for example, are each moral concepts which seem to have a common or shared meaning. That is, when I say, that the alleviation of unnecessary suffering is good, you understand what I mean. But it may be that you and I differ on the criteria for the application of the term "good." You may think that a state of affairs is good to the extent that it produces pleasure or the absence of pain, while I may think that the criteria for "good" make reference to the conception of a flourishing human life, lived in accord with the virtues.
Perhaps the most famous use of the concept/conception distinction is found in the political philosopher John Rawls's famous book, A Theory of Justice. Rawls appeals to the distinction between the concept of justice and particular conceptions of justice. His theory, justice as fairness, is defended as the best conception of justice. Notice that as used by Rawls, the concept/conception distinction does not imply that the concept of justice is essentially contested. It might be the case that we would eventually come to agreement on the criteria for a just society. In other words, not all contested concepts are essentially contested concepts.
Another well-known use of the concept/conception distinction is found in Ronald Dworkin's theory, law as integrity. You may know that Dworkin uses a hypothetical judge, Hercules, to illustrate his theory. Suppose that Hercules is interpreting the United States Constitution. He finds that the Equal Protection Clause of the Constitution makes reference to the concept of equality. In order to decide some case, about affirmative action say, Hercules must decide what equality means. To do this, Hercules will determine what conception of equality best fits and justifies our legal practices--narrowly, the equal protection clause cases but more broadly, the whole of American constitutional law. For Dworkin, "equality" is not an "essentially contested concept," because Dworkin does not take the position that there cannot be stable criteria for the meaning of concepts like equality. Rather, "equality" is an interpretive concept--a concept that is subject to interpretation. Interpretive concepts like equality are, in fact, contested, and may, in fact, always be contested, but this is not an "essential" (necessary) characteristic of interpretive concepts.
This brings me back around to Cornell's question. How does the idea of a contested concept (or the concept-conception distinction) relate to my typology of underdeterminacy: (1) ambiguity, (2) vagueness, (3) gaps, and (4) contradictions. Contested concepts involve a type of ambiguity, but it is not the usual type. Conceptions are conceptions of the same concept--that is the whole point. But the use of the term that denotes the concept is ambiguous with respect to particular conceptions of that concept. The original public meaning of the term might have been a reference to the "contested concept" or it might have been a reference to particular "conception"--that will depend on usage and context. If the public meaning was the concept (and not a conception), then the conventional semantic meaning of term is irresolvably vague--requiring "construction" in Whittington's sense.
One more thing. Cornell characterizes me as providing a typology "of potential problems in establishing public meaning", but that characterization suggsts a misunderstanding of my position. These aren't problems in establishing public meaning. My position (and that of Barnett and Whittington so far as I know) is that the public meaning (or conventional semantic meaning) sometimes is vague, ambiguous, gappy, or contradictory. Let me repeat that: the original public meaning of a term or phrase can be "vague". If this is the case, then we know what the term meant--and we know that the meaning of the term was "vague." There is no problem in establishing the meaning. Application of a vague provision to a particular case requires resolution of the vaguenss (in some way or another). Using Whittington's terminology, this activity of resolution is called "constitutional construction." One of the points of the New Originalism is that the semantic content of the Constitution sometimes underdetermines its application. That's a feature of the theory, not a bug.