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Denis Brion, "The Ideology of Constitutional Meaning",
International Journal for the Semiotics of Law / Revue Internationale
de Sémiotique Juridique Vol. X no.29 (1997), 159-190. A remarkable
element of the highly contested matter of constitutional interpretation
by the United States Supreme Court is its body of decisions in which it
finds an unexpressed individual right in the "penumbras" or "interstices"
of the express language of the Bill of Rights. A salient example is the
Court's decision in 1965 in Griswold v. Connecticut, in which
it struck down a State anti-contraception statute on the basis that it violated
a "penumbral" right of privacy. In support of this result, Justice
William O. Douglas explained that "specific guarantees in the Bill
of Rights have penumbras, formed by emanations from those guarantees that
help give them life and substance." In consequence, the Court was criticised
for violating the Rule of Law mandate that its role is to apply the law
and not create it.
A way of approaching the question whether this criticism
is valid is to consider the cosmological categories of Firstness, Secondness,
and Thirdness of the American pragmatist philosopher Charles Sanders Peirce
and his triadic concept of the linguistic sign, and the emotional basis
for the genesis of values argued for by Peirce's philosophical compatriot,
William James. Taken together, these elements of pragmatist philosophy advance
the position that what is unique about humans is the matrix of meaning by
which we understand reality; humans inhabit a triadic world of meaning in
conjunction with the dyadic milieu of fact that is the basic characteristic
of all other organisms. In the understanding of this triadic world of meaning
that pragmatism provides, what the Supreme Court did by way of finding a
penumbral right of privacy is altogether unremarkable - Justice Douglas
was doing no more than describing with accurate succinctness the necessary
process by which the inhabitant of a triadic world imbues a text with meaning.
e-mail:DJB@fs.law.wlu.edu
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