This piece below was presented during the Jurisprudence and (Its) History Symposium, held by the Virginia Law Review and the Program in Legal and Constitutional History in September 2014.
The main purpose of this Article is to begin to recover and elucidate the core textual basis of a progressive approach to constitutional law, which appears to have been embraced in essential respects by many influential figures, including Wilson, Hamilton, Marshall, and the two Roosevelts, and which rests on an implied power to promote the general welfare.
To do so, I will rely on two strange bedfellows: the law of corporations and the philosopher Paul Grice. An ordinary language philosopher like Grice, who writes about truth-functional connectives, bald French kings, and the like, might seem like an unlikely ally to enlist in this endeavor. As I will seek to demonstrate, however, underestimating the significance of Grice’s ideas for constitutional law would be a mistake. Plausibly interpreted, the Constitution vests an implied power in the government of the United States to promote the general welfare, and Grice’s distinction between semantic and pragmatic implication is a helpful means of understanding why. In what follows, I first summarize some key aspects of Grice’s philosophy of language (Part II) and briefly illustrate their relevance for constitutional law (Part III). The remainder of the Article (Parts IV to VI) is then devoted to explaining how, along with a relatively simple principle in the law of corporations, according to which a legal corporation is vested with the power to fulfill its purposes, Grice’s distinction between semantic and pragmatic implication helps to illuminate a thorny problem of enduring interest: What powers does the Constitution vest in the government of the United States?