One of the smartest people you’ve probably never heard of was 20th-century philosopher Ludwig Wittgenstein. Among his many pursuits—including logic, philosophy of mind, and mathematics—he is most well-known for his contributions to the philosophy of language. From his first published book on the subject, Tractatus Logico Philosophicus, to a work published after his death, Philosophical Investigations, Wittgenstein spent nearly 30 years figuring out how language impacts and shapes reality.
I don’t want to bore you with too much of a philosophy lesson, but allow me to explain the basics of his theory.
A Game of Use and Context
By the time of Philosophical Investigations, Wittgenstein concluded that language is not about trying to map reality in a purely logical structure. Instead, language is a series of games we play in every conversation, using terms that are defined not by logic but by everyday life.
A word on its own is only a sound—it is given meaning by the way it is said, the context of its use, and the culture to which it belongs. Simply, words are how you use them.
Within different communities, the same word might have different meanings. A simple example of this is the word “biscuit” in American English and British English. In the United Kingdom, a biscuit is what we know as a cookie. For us, a biscuit is something you eat with gravy.
But Wittgenstein’s theory goes deeper than this. A language game, as I referred to earlier, is not an actual game with a board or cards. Rather, it is the implicit establishment of how language is used in a given context. When my wife tells me, “You never help around the house,” she’s not asking me to provide her with examples of how I registered the car, took out the trash, mowed the lawn, did the dishes yesterday afternoon, etc. She is not playing a fact-finding game. She’s playing a reassurance game—she is trying to communicate a need for me to be more attentive and caring. The context can change the meaning of an entire sentence.
Communication and the meaning of words, Wittgenstein said, vitally depend upon people correctly understanding what game is being played at any given time.
So, what does this have to do with the law? Frankly, everything.
Playing the Right Game
Our Constitution plays a very specific game, one that has not changed since 1787, but one that countless people (including a host of Supreme Court justices) cheat at. The Constitution plays a game of ordered liberty.
The Framers at the Philadelphia Convention had a specific purpose (articulated both in James Madison’s extensive notes and in The Federalist Papers) in writing the Constitution. They labored through the muggy summer to craft a national charter that established a government limited in its ability to hinder the personal freedoms of its citizens, yet also endowed with the true capacity to make laws for the betterment of society. They wanted liberty that had a sense of purpose.
If the Constitution’s language game is ordered liberty, what does that mean for us today, reading its words in the 21st century? It means that every word and phrase must be read in such a way as it was understood back in 1787 (or in the years that a constitutional amendment was proposed and ratified). Those words were written in the common context of creating a federal republic oriented towards structured freedom.
When people try to cheat at this Wittgenstein language game of ordered liberty, they are attempting to redefine the purpose of words. They want to make the text of the Constitution geared toward whatever political preference or public policy they have in mind.
In the case of Mountain State’s most recent case VanDerStok v. Garland, the cheaters want to alter the meaning of separation of powers. The details of the case, which you can find in our brief, focus on a Final Rule of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) regarding the definition of a “firearm.” I want to highlight one critical reason why the ATF’s Final Rule is an attempt to cheat at the Constitution’s language game.
A Syntax for the Separation of Powers
Article I of the Constitution states that “All legislative Powers herein granted shall be vested in a Congress of the United States” [emphasis added]. Whether you play a language game that takes those words literally or you play a language game of ordered liberty, the outcome is the same—this clause ensures that no piece of legislation can be imposed upon the people without their elected representatives approving it. And it isn’t just laws—all powers regarding legislation belong to Congress. This means that Congress cannot give and the executive branch cannot take those powers.
The president and his subordinates, meanwhile, are governed by Article II, which says that the president “shall take Care that the Laws be faithfully executed.” Whether literally or for ordered liberty, a faithfully executed law would never go against or beyond what Congress designed. At times, Congress can delegate rulemaking authority to an agency, but at no point can an agency exceed what Congress has delegated. More specifically, per the major questions doctrine outlined in West Virginia v. EPA, an agency cannot make a rule on something as important as the definition of what constitutes a firearm that surpasses or contradicts Congress.
This is the basic essence of separation of powers, a fundamental principle of our Republic that aims to prevent tyranny. The president cannot make laws nor ignore the laws of Congress. He cannot act like a king.
The ATF is trying to cheat the language game of America’s supreme law. As our brief says, “When the ATF redefined the definition of ‘firearm,’ it did so without congressional authority and violated the separation of powers.” The executive branch decided it didn’t want to play the game of ordered liberty, but instead one of overreaching and invasive regulation.
The result is the same as in any other instance where the language game is confused—conflict and discord. Worse, such confusion in politics breeds a more entrenched bureaucracy that behaves as if it resents the personal freedoms of Americans. If we are to create a free country for a free people, we have to support the principled mission and work of places like MSLF. We have to consistently and constantly remind the courts that the Constitution is not a playground for left or right ideologies. It is the language of liberty in a well-ordered society.