June 30, 2015

Fake Hate Alert [Darleen Click]

Well, shut my mouth.

A man who reported someone beat him and carved a homophobic slur into his arm staged the attacks, authorities in rural Utah said Tuesday.

Millard County Sheriff Robert Dekker said Rick Jones, 21, could face charges after officers investigating the series of reported attacks found inconsistencies in the evidence. The Delta man eventually acknowledged faking the harassment, Dekker said.

Brett Tolman, an attorney for Jones, said the reports were a cry for help initially directed toward people close to him, and Jones didn’t realize how much attention they would get.

“I think it’s such good evidence of the difficulties members of the gay community deal with, and some make better choices than others,” Tolman said.

Yes, he goes out of his way with a series of acts made to look like he is a victim of “homophobia”, and when revealed he is still the victim cuz Fake-But-Accurate(tm).

#facepalm

Posted by Darleen @ 7:48pm
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June 30, 2015

No, intentionalism didn’t kill the rule of law, and putative conservatives should know better than to claim otherwise

Let me begin thus: even after all this time — and even after all the damage that has been done to the country by the left and the various and variegated intrusions and infiltrations of its ideology throughout our culture, our language, and our very espistemology — there are those on the right who are still so committed to covering for their mistakes about Obama (a “good man” who loves the country, a garden-variety liberal Democrat to be juxtaposed against the vicious hard-right visigoths), about the way forward for the GOP (don’t be “unhelpful!” Watch what you say: it’s the only way to constrain the speech police!), and in maintaining their own power, prestige, and sophistic faux-intellectual advantages, that they would actively undermine what has been a growing epiphany for many of us who are daily under siege by the left’s rules of etiquette and engagement: that the way we interpret — and the way interpretation actually works — not only matters, but is in fact crucial to understand as a tool for defeating the now accelerated encroachments on our liberty of expression. It is no accident that as we continue to allow an incoherent view of language insinuate itself deeper into our epistemological foundation, we are more and more beholden to the whims of those presuming to police our thought and speech.

For years I have made this case — and for years all of the resistance has come from two sources: those on the left, who favor the very kind of post-structuralism and anti-foundationalism that allows them to avoid any guilt pangs over logical inconsistency and who enjoy the power that is galvanized by a mob usurpation of meaning; and those on the right who benefit from the very same dynamic, largely because they find it crucial for their professional and pedantic careers to lay claim to the meaning of others so that they can rework those meanings to fit their own personal desires. The former, naturally, is to be expected: the leftist worldview of identity politics, anti-foundationalism, Gramsciism, the “diversity” project, hate speech law, manipulating narrative, manufactured consent — all of these things rely on what is insidiously referred to in the most American of ways: “the democratization” of interpretation and meaning. The latter, however, is both unfortunate and deeply disturbing: this same democratization of meaning, and the same constraints to expression that are impelled by the left, are supported and aided by some on the right, mostly lawyers as it turns out, who themselves rely on being able to usurp individual meaning and proclaim it in “democratic” terms, the formula for which I’ll again explain.

Over the weekend, and presumably launched on the occasion of John Roberts’ Burwell opinion, a center-right California Lawyer who once boasted in private emails that he would “drive [me] of the internet,” pulled from his archives a post he called “prescient” — one that was wrong and disingenuous back in 2010 when it first appeared; one that is equally wrong and disingenuous today. The post, and the new post touting it, both of which argue that intentionalism has no place in legal hermeneutics, very purposely ignore points about intentionalism that had been explained to its author over and over again. Too, it uses the instance of John Roberts’ very clearly faulty (and mistaken) appeal to intent to try to marginalize the only coherent linguistic model for interpretation that exists — and the very one that insists upon process, that how you get there matters, in its admonitions about proper interpretative mechanics.

The author of the post is a self-styled textualist, which in terms familiar to those who’ve studied the history of interpretation theory places him in the realm of reader-response proponents, the Barthean French post structuralists, or the New Critics, all of whom revolted against the authoritarian author and his presumptive control over the meaning of his own text. The argument went something like this: the author’s meaning matters only inasmuch as we allow it to matter. What matters more is what the “text itself says” — that is, what a speech act newly untethered from its origin can “say” to us. In the legal realm, constraints are put on such a formulation that are not put on to the same formulation in the literary realm: in the case of legal hermeneutics, the Ideal Reader posited is a set of “reasonable people who engage the text fairly”; in other arenas, as with the interpretation of art or literature, all sort of other textualist impulses are foregrounded: one may read what a text (and it’s important here to distinguish between a text that exists by itself as text alone, with an authorship that is of necessity bracketed or ignored, as per textualism, and one that we presuppose was intended by some agency wishing us to receive its message, as per intentionalism) “says” through any number of discipline specific lenses: post-colonialism; critical race studies; psychiatric/psychological phenomenology; feminism; queer theory; and so on. In each of these cases, the Ideal Reader uses his own discipline — be it law or gender feminism — to focus on the messages implicit in the text qua text, that is, that exist in the text as it is divorced from intent. It is important to note: there is no structural difference whatsoever between a gender-fem “reading” of a text (the kind that finds all sort of latent sexism in various canonical works, then drives them out of the canon) and the kind of legal hermeneutics that calls itself “textualism”. In both cases, the text is said to mean and say — to “speak” — without any indexicality to its author(s) (or in the case of law, authors and ratifiers).

But in truth, the very notion that a text can speak apart from the signification of that text by some agency — some human with some intent that he attaches to a set of arbitrary marks or sounds — is an absurdity: A text is no more alive and capable of speech than a lump of coal, and documents are no more alive than the paper or pixels they’re written on. The fact that in legal hermeneutics, interpreters who consider themselves “textualists” are more rigorous and constrained in the latitude they give themselves (and on occasion, they give up this pretense altogether) to ascribe their own meaning to those marks in their decoding doesn’t make their textualism any more coherent than the textualism that allows queer theorists to see a homoerotic relationship between Huck and Jim, or between Curious George and the Man in the Big Yellow Hat. All it does do is better approximate the intentionalism that is at the heart of ALL TEXTUALISM, and in so doing often reaches the very same conclusions.

Still, how you get there matters: And a textualist is nothing but an intentionalist who has chosen to privilege his intent over the intent of the agency responsible for producing the speech act.

Since it’s all the rage these days, allow me to quote from my rather prescient post, also back in 2010, in which I argue that Justice Scalia, though he calls himself a “textualist,” is actually an intentionalist, intentionalism being the default for interpretation. It just is — and any second-order description of what it is one thinks one is doing when one interprets is mere embroidery and, at its worst, dangerous delusion:

not only is it possible for marks that aren’t words to look just like words (egret scratchings in the sand, the output of millions of monkeys on millions of typewriters producing, by random selection, “pass the salt,” etc.), but in fact it is this very possibility that creates the distinction between what we consider words and what we consider accidental (because unintended) facsimiles of words.

A simple way to illustrate this: Were we to purchase several editions of, say, a Shakespeare play, would we argue that because the play is printed in different typefaces and different sized fonts in the various editions that the meaning of Shakespeare’s text has been altered in each case? Of course not. And that’s because we recognize that a cosmetic change to the signifiers — so long as we can still make out the marks clearly — doesn’t fundamentally change the relationship between the signifier and the signified we presume to be operative. Or, put more simply, we believe that the signs are still the same in each edition — that what Shakespeare meant to signify doesn’t change from reproduction to reproduction. And it is signs we care about when engaging a text–at least in those instances wherein we’re claiming to do with the text is interpret it.

For Scalia, “words” are signs. After all, he wouldn’t argue that the text of a statute printed on a computer screen says something different than the text of a statute that appears on paper merely because the fonts have changed. And so when he maintains that he “doesn’t care” about intent, he is mistaken: he has already assumed intent, because otherwise, he couldn’t see signs as signs, or (to borrow his terminology) words as words. So he is an intentionalist, as are we all. Looked at from the perspective of language, then, Scalia’s argument is essentially this: “I don’t care about words; I care about words.” Which, good for him.

From there, it is simple to track the errors in his description of what he thinks he’s doing as opposed to what he’s actually doing. First, when Scalia says, “I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words,” what he is saying is “I take the intended signs as they were promulgated to the people of the United States, and what is the fairly understood meaning of those intended signs.” Second, what Scalia means by “fairly understood” is that he will assume, as part of legal convention (and so itself a convention of a convention), that the legislators whose job it is to write the laws have written those laws in such a way that their intent will be clear.

What follows, then, is Scalia interpreting the intended text of the law with the presupposition in mind that the writers were hoping to clearly signal their intent. And so his interpretation factors in that implied promise on the part of the intending legislators as a legal convention.

What Scalia hasn’t done is dismissed the writers’ intent; he has instead accepted that intent as foundational to his interpretation and then applied the terms of a contract agreed upon by the legislators and the judicial branch, namely, that the legislators will craft their texts in the most conventional way possible; and the judge will interpret that text under the assumption that the legislators have signified conventionally. Without that intent assumed, it makes no sense for Scalia to lay claim to “interpreting” to begin with.

Problems only arise when “textualists” describe what they are doing incorrectly, and then try to turn that erroneous description into an official methodology: Scalia’s assertion that “intent doesn’t matter” is demonstrably false: the fact that he depends upon intent is evident the moment he decides to treat words as words, the moment he treats each reproduction of a statute as the same statute (even if the typeface has changed). And so his follow on statement — that he is interested in the “fairly understood meaning of those words” — is merely a preemptive warning to writers that when he interprets (in the specific context of legal hermeneutics), he expects that what he is interpreting will have been signified in such a way that he can usefully reconstruct its intent using the conventions specific to the text’s moment of production.

He is still appealing to (what he believes to be the original) intent. That he has decided to take on faith that the intent was signaled conventionally is not a sign that he “doesn’t care” about original intent; instead, it is a sign that he relies upon it for interpreting “fairly” to begin with.

What Scalia wants to guard against — because he, too, has misunderstood intentionalism — is the potential controlling interest of “some secret meaning” in a text. But a “secret meaning” not signaled most likely won’t get decoded anyway; and a secret meaning that is known to the “interpreter” doesn’t need to be “interpreted” in the first place. Or, to put it another way, you mean what you mean. But just because you mean is no guarantee others will correctly decode your meaning.

[…]

[…] the meaning of a text hasn’t changed simply because it doesn’t adhere to convention. The adjudicator has simply ruled, for purposes of enforcement, that the third party could not possibly discern the intent from the marks provided.

As I keep arguing — and, in fact, it has been my entire basis for explaining intentionalism — it matters how you get there.

Textualists who adhere to a conception of interpretation that “democratizes” a text by intending to hand it over to the public (and that’s what convention is, a public expression of the breadth of prior meanings a given “culture” has come to recognize) — even if only while doing legal interpretation — lend credence to a linguistically incoherent (and yet increasingly institutionalized) view of language that, because it claims to be interpreting without appealing to intent (even if in practice it merely hides its usurpation of that intent), promotes an idea of language wherein the interpretive community not only determines meaning, but it does so while claiming it is interpreting the author’s meaning — having first dismissed his intent as irrelevant.

This is lazy thinking. And it is lazy thinking made worse by a cynical refusal to surrender the power over the meaning its advocates desire.

We’ve seen the practical effects of such a mindset — in the (often disingenuous) outrage aimed at Bill Bennett or Tony Snow or Rush Limbaugh or guys with male dogs who walk too close to some suspicious old Negro gentleman and say the “wrong” thing.

To say […] “I know what you meant, but what you meant is signaled in such a way that it couldn’t possibly be interpreted as consonant with your intent unless [the receiver of the message] also knew beforehand what you meant […] is different from saying “I know what you meant, but what you meant doesn’t matter, because convention says you meant something else, and your intentions are irrelevant when it comes to determining what you meant.”

In fact, in the first instance, you are holding the original intending agency responsible for failing to signal his intent — while allowing that he means what he means; in the second instance — the one supported by the theory of textualism (if not always in practice) — you are telling the original agency that what he meant or didn’t mean is not important, because consensus (as determined by convention) will tell you what you meant.

At which point all you’ve done is strip the original text of its meaning, turned it into a set of signifiers, and then, by your own act of intending, attached to that set of signifiers the signifieds you prefer, taken from the realm of “convention.”

Or, to put it another way, you have ascribed your own will to the marks in order to make them mean — and you have done so at the expense of the signs you were originally asked to interpret. The result being that you haven’t “interpreted” at all. You’ve merely rewritten — and so created an entirely new text.

And ruling in favor of the text you created is hardly the kind of dispassionate functionality one expects from a judge.

The short term effect of institutionalizing such an interpretive paradigm is to silence those who fear that a given interpretive community will likely rob them of their meaning; the long term effects are to give meaning to whatever group shouts its claim the loudest — and to turn truth into a battle of group wills: might makes right, and the ends justify the means.

This is the left’s goal. Yet some on the right continue to give them the cover they need to lay the road that will lead directly to that end.

Scalia is an intentionalist. His insistence that he is not — and his explanation for how he isn’t — promotes an incoherent idea of language that those looking to undermine the idea of individual autonomy readily embrace. A shame, because his method for interpreting doesn’t match his explanation of what he’s doing when he interprets.

I think it very straightforward here that intentionalism does not, in the realm of legal convention, commit anyone to look for “secret meanings” — and in fact, it very pointedly disallows such meanings as being operative in law, because to know a meaning that isn’t signaled would mean there’s nothing to “interpret” to begin with. More, because legal convention requires that a future reading be understood by those without recourse to some claim to special knowledge contained only in the heads of legislators, the intentionalist would note that justices are compelled to send unclear texts back to their authors and ratifiers to fix them so that the intent claimed therein is made manifest to “reasonable people” reading “fairly.”

But what they are reading isn’t a text that speaks for itself: it’s a text that speaks for legislative enactment, and so speaks for those who wrote it and (corporately) passed it. It is not a living thing: it is the second-order proclamation of legislative intent rendered in code whose kernel expressive units — signifiers, or marks, or sound forms — are by their very nature arbitrary, becoming complete only once signification is added. For instance, “cat” doesn’t come to mean a furry house pet until we add to the signifier c-a-t the signified to which it refers. That is, “cat” can also refer to a hep jazz musician, eg. Which doesn’t, as a textualist or post-structuralist would claim, mean the the signifier “cat” means both of those things at once; rather, that which of those specific things it means, that as each is used separately over time can then be added to conventional usage, is determined by signification, by some agency intending “cat” to mean a furry house pet, or a jazz musician, or in some instances of intent, both simultaneously.

This is absolutely crucial to any understanding of how language functions. Because the battle between textualism and intentionalism (which battle isn’t even a battle between two schools: textualism IS intentionalism) comes down to one central conflict: whose intentions should we privilege when what we claim to be doing is interpreting? By claiming that you are bracketing authorial intent and just reading what an inanimate and insentient object like a text “has to say,” what you are doing is allowing that what you believe it says is the operable locus of meaning — and the author’s intent in producing the speech act is either to be ignored or, at best (in originalism), used as a presumptive guide. That is, you are granting yourself license to take signs supplied by some other agency, empty them of their indexical referents, their singnifieds, and apply your own indexical referents to the marks. In some instances, this maneuver is given legitimacy by the assertion that we care only what the text says, regardless of what the writers/utterers meant (Scalia, et al); in other instances, this maneuver is said to condemn or praise an author for imbuing the text with meanings that were never intended — the gambit being to then attribute to the author “meaning” in a text that is wholly the invention of the person engaging the text. In this way, textualism allows for motivated “interpretive communities” to decide and declare that a text means more or other than what its author intended, and that that more or other is oftentimes grounds for an Inquisition into the author or utterer’s purity.

To see this in action, the SCOTUS case we should be looking at is the housing case in which Justice Kennedy ruled that disparate impact is the result of “unconscious discrimination” — that is, that discrimination, even discrimination not intended, is nevertheless real and so can be remedied by the state. What Kennedy did is look at raw data, imbue it with meaning apart from the random dispersion of statistical nodes, and apply to it an interpretation that essentially wrote math into a narrative of secret and invidious injustice, regardless of whether or not that injustice was intentional. That is, he added his own signification to the signifiers on offer in order to rewrite the text.

John Roberts, of course, did the same thing, regardless of his claim that he was trying to adhere to the intent of the legislature. An intentionalist, it should now be abundantly clear, would say that even if one believed that the intent of the legislature was to create workable insurance markets (and given what we’ve heard from Jonathan Gruber, or what Obama and other proponents of the ACA have said about the ultimate goal being a single payer system), the legislature, by failing not only to include “federal exchanges” in their text but by very pointedly relying on the specific “state exchanges,” in no way signaled the intent they claimed, and therefore need to rewrite the law to make that intent clear.

Roberts didn’t do that. Instead, he “saved” the law by rewriting it, by adding his own intentions to save the law to the signifiers “exchanges of the state” so that they now included the signified “and of the federal government.” There is nothing in that misuse of the interpretive process that an intentionalist would ever justify, support, applaud, or allow.

And sadly, the lawyer, Patrick Frey — who was linked by Ed Driscoll filling in on Instapundit over the weekend (Ed didn’t respond to my various calls to rebut the sloppy dissembling he’d offered up by way of quotation) — knows all this. And we know he knows all this because he links to the very post that disavows what he claims are concerns that trouble intentionalism and that pointedly explains how they aren’t problematic in the least. Yet he is so invested in proclaiming his putative stance victorious that he would purposely and very selfishly do harm to the conservative movement, which can only extricate itself from the left’s control over language and narrative by understanding precisely how that control is operative and has become institutionalized. How else to explain how he can read

What Scalia wants to guard against — because he, too, has misunderstood intentionalism — is the potential controlling interest of “some secret meaning” in a text. But a “secret meaning” not signaled most likely won’t get decoded anyway; and a secret meaning that is known to the “interpreter” doesn’t need to be “interpreted” in the first place. Or, to put it another way, you mean what you mean. But just because you mean is no guarantee others will correctly decode your meaning

[emphasis added] …and then 5 years later write, as if in response to intentionalism in general and my explanations of how it works specifically:

“it is not fair to require the citizenry to obey secret, unexpressed intentions that they were never told about”

Um, of course it isn’t. Which is why nobody is claiming that it is. And as was very clearly noted, nothing in intentionalism requires it. Frey’s is a strawman argument meant to dupe those who don’t have the patience to work through the actual arguments on offer. Or if you wish to be less kind, it’s a falsehood being used to try to undermine the actual argument being made for purposes of … undermining the actual argument being made.

In fact, the intimation in the lawyer’s argument acts in a way that takes what I’ve actually argued and claims I’ve argued the precise opposite, in a kind of perversely ironic performative of exactly why all this matters. It is, as a post, proof of the necessity of rigor and appealing to the intent of the author, not to a free-floating “text” that can be made to mean something other by textualists who will routinely remove it from one context and place it in a new context in order to pretend to re-animate it.

Look: Patiently and very rigorously explaining how this works — knowing that people’s eyes tend to glaze over when you start writing about signifiers or hermeneutics — has not always been easy or gratifying. And yet I’ve done so for nearly fifteen years on protein wisdom because it is essential to our understanding of how we’ve been bested in the propaganda battles and culture wars — not on the merits but rather through the very kernel assumptions about language we’ve allowed to become settled truths.

They aren’t. The “democratization” of meaning is nothing more than call for mob rule — for manufactured consent and a will to power — over individualism. It is a way to silence the individual agency by usurping or coopting his meaning. That it is still being jealously guarded as a right by putative conservatives who have been wrong every step of the way about how best to beat the left at its game is not so much surreal as it is revolting.

In “King v. Burwell: Intentionalism Trumps Textualism, and the Rule of Law Dies,” California DDA Patrick Frey writes:

I noted that if one were foolish enough to apply an “intentionalist” reading of laws, rather than a “textualist” reading, one could simply have judges write protections for children into the law, in accordance with legislative intent. After all, who really thinks Congress wanted to leave children suffering from pre-existing conditions at the mercy of the insurance companies? But this takes the rule of law and throws it right out the window — because it is not fair to require the citizenry to obey secret, unexpressed intentions that they were never told about. Thus, only the text, and the text alone, is the law. That is the only way the rule of law works. As I said in 2010: “How can it be workable to make citizens hostage to legislative intent that cannot be divined from the text of the law by a reasonable audience?”

That hypothetical, decried by some as unrealistic, turned out to be a pretty close parallel to the King v. Burwell case.

It is clear here that, even though Frey knows that intentionalism in no way allow judges to “write protections for children into the law” if that intent wasn’t expressed — at best, they’d return the text of the law to the legislature and tell it that if that is in fact what they intended, they’d have to make that intent manifest — he nevertheless wishes to push, yet again, the very kind of “textualism” (itself intentionalism, with the audience now assuming control over whose intentions come to matter for purposes of interpretation) that is used by the gender feminists, the queer theorists, the post-colonialists, and so on, to find in texts all sort of things that aren’t explicitly signaled. It’s a very slippery justification for allowing oneself to play games with the signs of others while pretending to be acting on behalf of a speaking text, one that is communicating without recourse to authorship.

But of course, the only way a text can communicate is for us to agree that we are engaging something that is language in the first place, and what makes something that looks like language language is our intent to see it as such. We don’t “interpret” Boggle boards because we don’t believe them to be speaking to us, no matter how “reasonable” and “fair” we are with our readings of the “plain language” of a set of randomly distributed letters on a shakeable game board. We do, however, treat texts written by legislators as language because we (rightly) presume that it was written and ratified by some agency capable of having signified. And so intentionalism is our default position.

Frey continues:

I know some readers are convinced that Congress intended to include the words “established by the state” as an expression of federalism. The idea here is that the states were encouraged to establish their own exchanges by a carrot/stick approach. The argument goes that Congress was telling state officials: establish an exchange, and you get the subsidies (the carrot). Refuse to establish an exchange, and your citizenry gets nothing — and you face the wrath of the voters (the stick).

There is much disagreement about this on both sides. The conservatives point to Jonathan Gruber, a central ObamaCare drafter. The lefties note that Gruber was elected by nobody, and they point to a complete absence of any reliable evidence by an actual legislator saying that they wanted to use subsidies to coerce the states. (The famous Baucus statement is pretty ambiguous, even according to Michael Cannon, not to mention the fact that Baucus admitted he didn’t even read the bill.) Frankly, I don’t think the winning position in this murky debate is very clear. Whatever the origin of the “established by the state” language, I think the best explanation of its retention in the final bill is that the legislators foolishly assumed every state would set up an exchange. They guessed . . . poorly.

Again, there is nothing herein that troubles intentionalism in the slightest. In fact, I agree with just about every word of it, save for the ambiguity of what the left’s ultimate intent was and has been, which as an intentionalist I would argue is clear in the plain language of “exchange of the state” and bolstered by both the repetition and its offset by other uses of “federal.”

And yet, Frey treats our agreement as disagreement, for reasons I suppose only he can answer:

My own personal opinion is that allowing one’s self to be dragged into the muck of a messy debate about intent misses the point. My view is that arguing about legislative intent is a fool’s errand, because as I said way back in 2010, there really is no such thing as legislative intent:

[L]egislation cannot be interpreted according to legislative intent because, even in theory, it is often impossible to ascribe a single intent to a set of words that is the product of numerous different intentions. If 60 people vote for a provision, and 30 intend it to mean one thing, and the other 30 intend for it to mean the precise opposite, there is no coherent way to determine a single “intent” behind the text.

To those who argue that Congress really intended to include the words “established by the state” to enforce federalism, my question is: what if it were clear that was not Congress’s intent? What if every CongressCreature, upon voting for SCOTUSCare — whoops, I mean ObamaCare — signed an affidavit saying: “Our intent is for subsidies to be available to any citizen regardless of whether they obtained their plan on an exchange established by a state or by the HHS Secretary”? (Understand that the Constitution gives no legal authority to such affidavits; they would just be a road map to learning the legislators’ intent.) Assume further that the legislation that they actually passed said, just like it does today, that subsidies are available for those who obtain their insurance on exchanges “established by the state.”

Would you really feel any different? Really?

What Frey isn’t telling you here — and it’s a hallmark of his — is that of course he’s interested in legislative intent. If he weren’t, he couldn’t possibly treat the text of the law as anything more than an accident of random signifier distribution, as a Boggle game to be interpreted and legislated.

And not even he is that daft.

Instead, what he is not interested in here is an intent that the legislature may or may not have had but didn’t in any clear way signal. Or to put it another way, just because Justice Roberts claimed to be appealing to intent doesn’t make his maneuvering intentionalist (just as Scalia’s claim to be a “textualist” doesn’t prevent him from in most practical ways acting like the intentionalist he actually is): in fact, it isn’t interpretation if he is claiming to pull an unexpressed/unsignaled intent from the text, because we don’t need to “interpret” that which we already know. Instead, he is applying his own intent and attributing it to the legislature — which is, as we’ve seen, a gambit favored by textualists as a way to coopt the meaning of others.

Whether or not the legislature intended “state” to mean “both state and federal” is immaterial here. Because as I’ve noted time and again, nothing in intentionalism says that conventions surrounding legal interpretation, which are meant to ensure clarity, repeatability, and stability to a legal text, are to be jettisoned in favor of an unsignaled meaning. What it does say is that the legislature could very well have meant just what Justice Roberts says they meant (I have my doubts) and yet, because it didn’t express what it meant in a way that is clear, a Judge is compelled to return it to them to have them make their poorly signaled intent clear and unambiguous.

This is something we don’t require so much of literary texts; and yet the process of interpretation is exactly the same. The difference is the conventions surrounding the kinds of texts we’re engaging with: we don’t expect to find irony in an instruction manual from Ikea, though in fact in theory the whole thing could have been intended ironically without affecting the completion of the shelving unit; similarly, we don’t privilege poorly signaled or “secret” intent in legislative language, not because it can’t be there — a legislature can very easily try to sneak things through in such a way, and in fact Obama has relied upon plausibility to rewrite statutes at will — but rather because as those most affected by the performance of legislative texts (as laws, we are bound by them), we couldn’t possibly have divined the intent from the text as delivered.

One can mean and fail to signal that meaning in a way that is readily understood. That doesn’t mean the person hasn’t meant what he meant, only that he failed to signal his intent in a way that most people can readily understand. Nevertheless, convention is but an aid to divining intent; intent, which is what allows for signification, is always operable. It is up to us to decide if we privilege the intent of authors projecting their will into the world or of interpreters, who can either try to decode what the author meant (intepretation) or apply their own intentions and rewrite the texts entirely to lay claim to them.

It matters, for purposes of legal interpretation — and by way of legal convention — what intent is signaled. Textualism, in its effort to save us (unnecessarily) from “secret intentions” claiming privilege, abuses authorial control, turns it into a devious boogieman, and replaces it with the voice of an insentient thing, the “text”, that they claim speaks for itself. When what it really does, once they are through killing off the author and assuming control over his signifiers, having refused to acknowledge them as intended signs, is set the stage for their own control of a text, for their own claim to control of meaning.

Frey tries to finish with a flourish:

This reminds me of a hypothetical I offered in 2010:

Assume you make $50,000 a year. The legislature passes a law imposing a hefty tax on “people making over $100,000 per year.” Since the law does not apply to you, by its plain terms, you do not pay the tax. However, you are convicted after a judge finds irrefutable contemporaneous evidence showing that all legislators who voted for the tax intended to impose it on people making over $10,000 a year. The judge, an “intentionalist,” finds that the intent of the legislature controls, regardless of the plain meaning of the law.

Under the plain language of the law, the tax does not apply to you. Applying the intent of the legislators, it does. Which is the better interpretation?

My view was that the law would not apply to you, because “$100,000? means “$100,000.” Legislators can say all day long that they meant to say $10,000 — but if they didn’t include that extra zero in the law that was duly passed and signed, the text simply means what it means.

To me, $100,000 means $100,000 — not $10,000. To me, this is as simple as saying “established by the state” means “established by the state” and not “established by the state or the Secretary of Health and Human Services.” You don’t need to get into the legislators’ heads — and it is foolish and indeed dangerous to even try to do so.

Again — and Frey knows this — there is no reason to “get into the legislators’ heads” whatsoever. If what the legislators meant was $10,000 instead of $100,000, they made a mistake, a typo, a transposition error, a boo-boo, and they need to fix it. Inventing nefarious readings by caricatures of intentionalist judges doesn’t make intentionalism nefarious. And in reality — as we see over and over and over again — the real problem we have, both in legal hermeneutics and in our everyday dealings with language — is that we are constantly bombarded by the “nuanced” readings of the clever folks who presume to rule over us, who replace our meanings with their own and then attribute the vitriol they create to us: thus, every mention of an illegal alien is racist and xenophobic; every disagreement with SSM is homophobic; we’re accused of speaking thru dog whistles, of exuding through our words, unconsciously, our discriminatory longings.

Like Frey, I’m not “an elite lawyer who went to Harvard or Yale and then went on to serve on the Supreme Court of the United States.” But I am an intentionalist, as are well all, and to be one in no way commits one to “ascribe to statutory language mysterious secret meanings that signify the opposite of the common understanding of the public,” as Frey quite disingenuously and — ahem, INTENTIONALLY — argues.

Concludes Frey:

I am a simple man. To me, the law means what it says. Nothing more and nothing less.

Personally, I’ve yet to meet the spontaneously generated text — be it on a Boggle board or in egret scratchings in the sand that look like a Wordworth poem — that I treat as something that can “speak” to me through any other means than my own desire to add signification to the marks. Or if you prefer, texts don’t speak: agency does.

Why this is important to keep in mind is that textualism moves control of the text’s meaning to the discretion of the interpreter by justifying the bracketing of its originating intent. It substitutes group will — and group perception, which is easy to manipulate — for the act of creation and meaning that comes from signification. As I noted upthread, in what really should be the takeaway in an essay that presses the importance of process

“To say […] “I know what you meant, but what you meant is signaled in such a way that it couldn’t possibly be interpreted as consonant with your intent unless [the receiver of the message] also knew beforehand what you meant […] is different from saying “I know what you meant, but what you meant doesn’t matter, because convention says you meant something else, and your intentions are irrelevant when it comes to determining what you meant.”

The former is intentionalism properly understood; the latter is how textualism is able to rob individuals of their will and replace it with their own, provided they can make their own will seem plausible to enough people.

This is not “democratization.” It is usurpation.

And it’s something even simple men like Frey (and Ed Driscoll) should be able to understand.

****
update: I have forwarded the link on to Ed Driscoll, who — as a PJ Media bigwig — ignored my last attempts to have a rebuttal posted. I expect this to meet the same fate.

The truth is, many of the megaphones on our side don’t much like me. And I don’t blame them, really: I have called them out when I believe them to be wrong just as readily (if not more so, because in most cases I consider them smarter) as I have the robotic, programmed leftists who mindlessly shoot shame bullets and luxuriate in hate and division. This hurts their feelings and necessitates my removal from their li’l gaggle of influence peddlers.

Still, we’ve made slow and steady progress recognizing the inherent dignity in our own ability to mean — to make an individual mark into an expression of our own will, which is what we do when we intend in language — and it would be a shame if some petty fool and his pride convinced people, with the help of fellow travelers who don’t much care about a rejoinder, that the way forward is the very way the left has over the last 70 years or so completely robbed the individual of any claim to autonomy and legitimate agency, namely, by embracing an idea of language that privileges communitarian, mob meaning, hidden under the rubric “perception,” to lay claim over the specific will of the individual.

Our oppression has come from just such a surrender. To renew our vows to that surrender because some lawyer wants to maintain his “right” to replace a manufactured consent with an individual expression is anti-conservative, anti-individualist, and anti-intellectual.

But then, who cares, anyway? Fixing things would mean we no longer need to gripe. And the gripe’s the thing.

I’m heading back to my hidey hole again. I have never needed to misrepresent someone’s arguments so blatantly and intentionally to make my points. Instead I try to carefully and deliberately argue against the assertions being made. That doesn’t play well in this era of 140 characters and online cliques. And I don’t expect anyone to feel the need to point any of that out. Because that would mean “getting involved” and it’s best, we’ve learned, just to sit back, be passive, and hope everything gets better all on its own.

What a bunch of craven eunuchs.

Posted by Jeff G. @ 9:25am
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June 30, 2015

SJW lied in order to destroy scientist Tim Hunt and his wife’s lives? [Darleen Click]

This is my shocked face.

According to [Connie] St Louis, who was in the crowd, their meal was ‘utterly ruined’ by the ‘sexist speaker’. She claimed that Sir Tim, having been asked to deliver a toast, embarked on a surreal rant in which he boasted of being a ‘male chauvinist’.

‘Let me tell you about my trouble with girls,’ it purportedly went. ‘Three things happen when they are in the lab. You fall in love with them, they fall in love with you, and when you criticise them, they cry.’

According to St Louis, Sir Tim then took the odd step of claiming that ‘single-sex’ science laboratories were preferable to ones in which men and women work together.

‘Really, does this Nobel laureate think we are still in Victorian times?’ she asked.

So began an extraordinary course of events that saw her tweet shared more than 600 times, kick-starting a viral scandal which resulted in the 72-year-old academic, famed for his pioneering work on cell division, being vilified across social media.

Sir Tim, screamed critics, was the epitome of an unreconstructed misogynist; an ‘out-of-touch a***hole’ to quote one of many hostile tweets, who should have no place in modern academia and whose comments laid bare the institutional sexism that allegedly pervades the world of science.

Within hours, Sir Tim was being hauled across the coals in newspapers and TV bulletins across the world. Unable to defend himself, since he was travelling back to the UK, the bespectacled professor’s only response was delivered via a voicemail message to Radio 4’s Today programme recorded in haste via mobile telephone in Seoul airport. […]

Troubled by Sir Tim’s fate, a collection of eminent scientists, including eight other Nobel Prize winners (and several senior female academics) chose to speak out publicly in support of him.

Many professed outrage that, in the echo-chamber of social media, a single careless remark, just 37 words long, could apparently derail the career of a pioneering scientist. Several added that they believed his fateful toast had been delivered off-the-cuff and taken out of context. Though the comments about women scientists were certainly misjudged, Sir Tim’s supporters claimed they were intended as an ironic joke (albeit one which misfired). He’d intended to satirise, rather than endorse, sexism, they argued. […]

Then, early this week, the simmering dispute took a further, seismic twist.

It came courtesy of The Times newspaper, which revealed the contents of a leaked report into Sir Tim’s fall from grace compiled by an EU official who had accompanied him to the Seoul conference.

This individual, who has not been named, sat with him at the lunch and provided a transcript of what Sir Tim ‘really said’.

Crucially, it presented a very different take to the one which had been so energetically circulated by Connie St Louis. […]

The report began by confirming that Sir Tim had joked about falling in love with women in laboratories and ‘making them cry’.

However, it said he’d prefaced those comments with an ironic introduction, joking that they would illustrate what a ‘chauvinist monster’ he was.

The report then revealed the existence of an entire second half of the controversial toast.

In it, Sir Tim was said to have told his audience that his remark about ‘making them cry’ was, indeed, an ironic joke.

He purportedly said, ‘now seriously . . .’ before going on to speak enthusiastically about the ‘important role’ women scientists play. He ended by joking that his largely female audience should pursue their trade, ‘despite monsters like me’.

The report’s author added: ‘I didn’t notice any uncomfortable silence or any awkwardness in the room as reported on social and then mainstream media,’ going on to describe the speech as ‘warm and funny’.

All of which, for quite understandable reasons, sparked further angry debate. Supporters of Sir Tim felt he had been vindicated. Among them was Professor Richard Dawkins, the evolutionary biologist, who said the leaked memo’s contents showed Sir Tim to be ‘the reverse of a chauvinist monster’. […]

However, Sir Tim’s critics remained unmoved and disputed the EU report’s contents. Importantly, given how the scandal had originally emerged, they were led by Connie St Louis.

She stood by her remarks and told the Mail that she explicitly denied that the scientist’s toast ever contained the words ‘now seriously’.

He said/she said, right? The old white guys are obviously the liars …. but since there is no tape or transcript, who is the credible person here?

Here, on a page outlining her CV, she is described as follows:

‘Connie St Louis . . . is an award-winning freelance broadcaster, journalist, writer and scientist.

‘She presents and produces a range of programmes for BBC Radio 4 and BBC World Service . . . She writes for numerous outlets, including The Independent, Daily Mail, The Guardian, The Sunday Times, BBC On Air magazine and BBC Online.’

All very prestigious. Comforting, no doubt, for potential students considering whether to devote a year of their lives (and money) to completing an MA course under her stewardship. Except, that is for one small detail: almost all of these supposed ‘facts’ appear to be untrue.

For one thing, Connie St Louis does not ‘present and produce’ a range of programmes for Radio 4.

Her most recent work for the station, a documentary about pharmaceuticals called The Magic Bullet, was broadcast in October 2007.

For another, it’s demonstrably false to say she ‘writes’ for The Independent, Daily Mail and The Sunday Times.

Digital archives for all three newspapers, which stretch back at least 20 years, contain no by-lined articles that she has written for any of these titles, either in their print or online editions. The Mail’s accounts department has no record of ever paying her for a contribution. […]

Elsewhere on the City University web page, readers are led to believe that St Louis has either become, or is soon to become, a published author.

‘She is a recipient of the prestigious Joseph Rowntree Journalist Fellowship to write a book based on her acclaimed two-part Radio 4 documentary series, Raising Ham,’ it reads.

But that is not the full story. In 2005, St Louis did, indeed, receive the liberal organisation’s ‘fellowship’. She was given £50,000, which was supposed to support her while she wrote the book in question.

However, no book was ever published. Or, indeed, written. An entire decade later, the project remains a work in progress. […]

In an email, one of the prominent scientists who have publicly supported Sir Tim Hunt tells me: ‘What you have discovered is very alarming. False claims about publications are taken very seriously by universities. Perhaps even more seriously than reports of dodgy, sexist speeches!’

In our new age of post-Western intellectualism where feelings trump thinking and perception is everything (even if falsely claimed), I don’t expect the Hunts to ever be made whole or St Louis punished.

In the words of Harry Reid, “We won, didn’t we?”

Posted by Darleen @ 7:46am
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June 29, 2015

You can’t make this stuff up: “How can something like this happen without prior warning?” [Darleen Click]

WSJ on broken Greece

THENS—Greece shut down its banking system, ordering lenders to stay closed for six days starting Monday, and its central bank moved to impose controls to prevent money from flooding out of the country.

The steps, a fateful climax to five years of debt crisis, put Greece closer than it ever has been to an exit from the euro and pushes the common currency itself into uncharted waters. The decision came after the European Central Bank—meeting in an emergency session Sunday—opted not to expand a lifeline of emergency funds that has been sustaining Greek banks while nervous depositors pulled their money out.

In response, European stocks slumped Monday and the euro fell. Greece’s stock market will be closed for as long as banks are not open to the public, the country’s Capital Markets Commission said.

On Athens’s rainy streets late Sunday, many ATMs had already been emptied. Prime Minister Alexis Tsipras’s announcement that he would call a referendum on the economic terms that Greece’s creditors want for fresh aid sent many Greeks scurrying to bank machines over the weekend to grab what remaining cash they could.

“How can something like this happen without prior warning?” asked Angeliki Psarianou, a 67-year-old retired public servant, who stood in the drizzle after arriving too late at one empty ATM in the Greek capital. “I want Tsipras to tell me how I am going to make it through the week with €10 in my bag with rent coming up. It has never been as bad as this.”

Withdrawals at bank machines will be limited to €60 ($66) a day for each account, the government said.

Posted by Darleen @ 6:54pm
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June 29, 2015

China’s OPM hack: how to blackmail anyone in the federal government [Darleen Click]

But but but … the Federal Government has better things to worry about, like sprinkling dignity all around like magic fairy dust.

By now, it’s clear that hackers — believed to be tied to the Chinese government – stole files from the Office of Personnel Management that amount to a giant “how to blackmail anyone in the federal government” manual. This was America’s “cyber 9/11,” exposing an administration full of true believers in the expansion of government who can’t handle the most basic tasks of secret-keeping.

How does a government failure so consequential — a foreign power accessing 18 million confidential records, including the intimate personal details of federal workers’ infidelity, drug abuse, and personal debts uncovered during the background-check process for security clearances — happen?

For many Obama critics on and off the Hill, the answer lies in a troubling pattern of incompetent management from Obama appointees selected more for their political loyalty than for their expertise, skill, or leadership abilities.

Let’s stop giving the benefit of the doubt to Obama that this is stupidity and not malice. This administration has been too efficient in dismantling American institutions by any means necessary to ignore the it’s a feature, not a bug angle.

Before becoming the head of OPM, Katherine Archuleta had no background in the kind of work the agency does. Archuleta, a lawyer and former Clinton administration official, was national political director for President Obama’s reelection campaign. She served as the chief of staff to Secretary of Labor Hilda Solís, and was the City of Denver’s lead planner for the 2008 Democratic National Convention. Like the president, she has roots in “community organizing”: She co-founded the Latina Initiative, a Colorado organization aimed at getting more Hispanic voters involved in politics. (In 2011, the Latina Initiative suspended its operations, citing insufficient funding.) Nothing in this record suggests any expertise in the vitally important human resources and record-keeping functions OPM is supposed to serve. Before the hack, Archuleta’s primary goals at OPM appeared to be increasing the diversity of the federal workforce and implementing Obamacare’s changes to federal workers’ health-insurance options. […]

Her answers under oath in front of the Oversight Committee two weeks ago left Republicans and even some Democrats convinced she either knows exceptionally little about the state of her agency’s cyber-security or she’s comfortable lying about it, insisting that breaches aren’t really breaches and that obviously insecure systems are secure.

And the national “media” is too busy slapping rainbow stickers on everything to be bothered.

We are in the best of hands.

Posted by Darleen @ 5:36pm
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June 29, 2015

Kids show moral courage their parents lack [Darleen Click] UPDATED

Fight the NannyState

A school administrator from Indiana has told Congress that students in his district are trafficking in illicit goods on school property, thanks federal law.

And they’re doing it right out in the open in the schools’ lunchrooms.

“Perhaps the most colorful example in my district is that students have been caught bringing — and even selling — salt, pepper and sugar in school to add taste to perceived bland and tasteless cafeteria food,” said John Payne, president of the Blackford County School Board of Trustees in Hartford City, Ind.

“This contraband economy is just one example of many that reinforce the call for flexibility (with the rules),” he said, as reported in the Washington Free Beacon.

Flexibility, my ass. The Federal government has no business in local school lunches.

Of course, if Michelle could make “healthy school lunches” a LGBTQQLMNOP issue, then those kids can be stopped cuz DIGNITY!

*************************************
Now preschools and even adult daycare centers are being targeted.

If the U.S. Department of Agriculture has its way, first lady Michelle Obama’s vision for what Americans should be eating will affect more federal programs.

The department is seeking to overhaul rules related to the Child and Adult Care Food Program, a program similar to the National School Lunch Program, except for day-care providers.

Day care centers are eligible for reimbursements from the federal government, provided there is compliance with their rules.

The USDA wants more vegetables and less sugar served to children and adults in day care centers.

“Grain-based desserts, such as cookies and cakes, would no longer be reimbursable, and children younger than 1 would no longer be offered juice,” the Lansing State Journal reports.

Facilities that deep fry food on-site could no longer participate in the program. “Prepackaged fried foods,” like chicken nuggets, would be allowable, so long as they are served “infrequently.”

The effect could be sweeping.

According to Mlive, at least 30 states “require day cares to use the program’s nutrition guidelines to receive licenses.” The program also feeds about 120,000 elderly or disabled adults each day.

Posted by Darleen @ 1:10pm
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June 29, 2015

Series of church fires [Darleen Click]

This

A fire that engulfed a small, predominantly black church in Charlotte was set on purpose, local officials said Wednesday. Now they are trying to determine whether the act of arson was a hate crime.

“Shock. Disbelief,” co-Pastor Rhonda Kinsey told Time Warner Cable News. “You hear about it, but you never imagine you would have a fire at your church.”

is

MACON, Ga. (AP) — A fire that damaged a predominantly black church in middle Georgia has been ruled arson, authorities say.

The fire was reported at God’s Power Church of Christ in Macon early Tuesday morning. Macon-Bibb County Fire Sgt. Ben Gleaton told local media outlets that investigators determined the fire was intentionally set but didn’t say what led to that conclusion.

disturbing

KNOXVILLE (WATE) – Knoxville officials are investigating a case of arson at a predominantly African-American church. Officials say someone set fire to bales of hay outside College Hill Seventh Day Adventist, 1837 Brandau Street, and also burned the church van.

Hate

WARRENVILLE, SC (WFXG) – Massive flames tore through a Warrenville church early Friday morning.

“It happened so quick, it was just like a nightmare,” said Bobby Jones, pastor of Glover Grove Baptist Church. “That’s 33 years just gone down the drain.”

Or Hoax?

Investigate faster, please.

h/t Corduroyalist

Posted by Darleen @ 7:53am
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June 29, 2015

Where will you be when the heresy trials begin? [Darleen Click]

rainbow_borg

Posted by Darleen @ 7:41am
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June 27, 2015

“Time to legalize polygamy” [Darleen Click]

Because, how dare we deny love and dignity to those families who love “plurally”

The question presents itself: Where does the next advance come? The answer is going to make nearly everyone uncomfortable: Now that we’ve defined that love and devotion and family isn’t driven by gender alone, why should it be limited to just two individuals? The most natural advance next for marriage lies in legalized polygamy—yet many of the same people who pressed for marriage equality for gay couples oppose it.

This is not an abstract issue. In Chief Justice John Roberts’ dissenting opinion, he remarks, “It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.” As is often the case with critics of polygamy, he neglects to mention why this is a fate to be feared. Polygamy today stands as a taboo just as strong as same-sex marriage was several decades ago—it’s effectively only discussed as outdated jokes about Utah and Mormons, who banned the practice over 120 years ago.

Yet the moral reasoning behind society’s rejection of polygamy remains just as uncomfortable and legally weak as same-sex marriage opposition was until recently. […]

Marriage is not just a formal codification of informal relationships. It’s also a defensive system designed to protect the interests of people whose material, economic and emotional security depends on the marriage in question. If my liberal friends recognize the legitimacy of free people who choose to form romantic partnerships with multiple partners, how can they deny them the right to the legal protections marriage affords?

Polyamory is a fact. People are living in group relationships today. The question is not whether they will continue on in those relationships. The question is whether we will grant to them the same basic recognition we grant to other adults: that love makes marriage, and that the right to marry is exactly that, a right. […]

To be clear: our lack of legal recognition of group marriages is not the fault of the marriage equality movement. Rather, it’s that the tactics of that movement have made getting to serious discussions of legalized polygamy harder. I say that while recognizing the unprecedented and necessary success of those tactics. I understand the political pragmatism in wanting to hold the line—to not be perceived to be slipping down the slope. To advocate for polygamy during the marriage equality fight may have seemed to confirm the socially conservative narrative, that gay marriage augured a wholesale collapse in traditional values. But times have changed; while work remains to be done, the immediate danger to marriage equality has passed. In 2005, a denial of the right to group marriage stemming from political pragmatism made at least some sense. In 2015, after this ruling, it no longer does.

That didn’t take long, did it?

Insert all the I-told-you-so’s here.

Not that I expect any apologies from the #LoveWins crowd — history begins with them and being a Social Justice Brownshirt means never being held accountable.

Posted by Darleen @ 12:56pm
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June 27, 2015

How you get there matters. Still

Regardless of where you stand on same sex marriage, ObamaCare, or the very idea of “unintended discrimination,” the process of how we interpret and apply law — and what counts as liberty, in the sense it was intended by the founders and framers and to the extent it exists in a representative republic — is crucial to the protection of the individual and a the frustration of the state, whose natural impulse is to forever increase it’s own power. It should be of no debate that a country forged in revolution against a faraway King and whose political and social ideas are expressed in the Declaration of Independence, was born of a distrust of centralized authority and a desire for liberty, which was always defined by negative rights. Separation of powers was a key element to the genius of our Constitution, a crucial check on the coalescing of power around a single unified entity. And yet what we have today is an Executive that makes law; a Legislative branch that makes law; an administrative state that makes law; and a SCOTUS that makes law.

That’s about as unified as one centralized federal power can get.

Proper interpretation of law — and adherence to the process, when it is joined with a clear idea of what it is we think we’re doing when we interpret — is one of the foremost safeguards of liberty, in that it assures the stability of law and in so doing allows for equality before it. Without a fixed and repeatable process, the rule of law is surrendered to the rule of caprice, the rule of whim, the balk assertion of power — all carefully camouflaged as legitimate “interpretation.” It is not: in the context of legal hermeneutics, certain conventions apply. First, the court, in order to even begin the process of interpretation, has to acknowledge that the text presented them was intended; these seems fairly self-evident, but too many ideas of interpretive theory would try to kill off the author(s) in order to claim power of the meaning of a text for themselves. Second, because we are dealing with law (and not, say, Joyce’s Ulysses), legal convention requires that the texts produced by lawmakers and handed over to courts for application and interpretation must be as clear as possible in their practical expressions. That is to say, because we want laws to be understood, they need be written in such a way that the intent behind them is as clear and unambiguous as it can be made to be. This is how convention serves intention, and why we use convention as one of the tools to determine intent. In law, that convention is crucial: because the force of law carries with it the potential for fines, imprisonment, and even death in some instances, we insist that it be clear and easily determinable. Bad law that isn’t clear should be returned to the legislative branch for revision.

Unfortunately, we now have courts that believe it is their job to rewrite the bad text of the legislature to comport with what they claim is their intent. But if a court is aware of a legislative intent that doesn’t appear in the text of the law in any comprehensible way, they aren’t “interpreting” it at all. They are laying claim to knowing what it means regardless of how someone not privy to that hidden and unsignaled intent cannot possibly be expected to be. Whether it’s turning “penalty” into “tax” or turning “by the state” into “by the state and also the federal government and IRS,” these acts of judicial presumption are arrogant and immoral. No one would ever allow that a court can write the law as it so sees fit, even in contradistinction to the legislative branch who wrote it.” And yet when they do so, but do so using the emptied signifiers left them in a text whose intent they either dismiss, invent, or claim special knowledge of, this is precisely what they are doing: they are rewriting law, creating new texts from the ones presented them, and then attributing their *own* superlegislative intentions back to lawmakers, whom they claim to be “helping” by rewriting statute.

As Justice Scalia points out in his dissent to Obergfell, Anthony Kennedy simply does not have the authority to determine “settled law” for 300+ million people using “it just feels right” and “it’s time” as a legal and coherent jurisprudential rationale. The State does not grant one “dignity,” nor should it, and Justice Kennedy doesn’t get to find the (surreal) “right” for people not to be lonely. He likewise doesn’t get to decide, as he did in the housing decision, that organic statistical dispersion is somehow de facto proof of “unintended prejudice” — a ruling that suggests that whites, or any wealthy people who, because of their wealth, must be *kinda* white, are necessarily bigoted *even if they don’t know it,* all because they have more than someone else, and as a result live in areas where those without the means typically do not. This “disparate impact” racialism is a recipe for the very dangerous and illiberal “equality of outcome” proposition used by socialists everywhere (w the political leadership exempting itself from the consequences, naturally). Not to mention, it is based on fundamental inequality before the law, with certain groups granted special “rights” it is not the Court’s place to grant.

Too, John Roberts doesn’t get to pretend he can see the secret intent of a statute passed by lawmakers who didn’t bother reading the thing that, on practical perusal, *explicitly signals an opposing intent* (one that was backed up by clips of Jonathan Gruber bragging about how state exchanges were intended to drag Governors who wanted federal funds along, kicking and screaming if needs be).

Regardless of what would-be philosopher kings and queens decree from their high benches, the US was designed as a representative republic, and the Constitution gives the federal government limited powers, leaving the rest to the several states and to the people, who are meant to self govern within the context of a civil society. Using Civil War amendments (ironic, given that, as amendments, they were ratified by the states — not thrust upon an unwilling populace by a single vote of the Supreme Court) to crack the 150-year-old “right” for the federal government to define marriage, begs credulity: the people who wrote and ratified those amendments had in mind a specific use for them; they never intended to give a future Court leave to empty them of their context and specifics and expand them to usurp powers that are more properly left to the people.

When we allow Courts to claim that their rewriting of law is in fact an expansive “interpretation” of law, we are giving in to a linguistically incoherent idea of what it means to interpret and turning the process into a will to power. Kennedy disregarded the intent of the 14th Amendment, clear not only in its plain text and historical context but also in its legislative history. He has effectively deconstructed what in our history “liberty” has meant (see Thomas’ dissent in SSM case) and rewritten that entire history, deconstructing it and inverting it, much like our culture has done w terms like “tolerance,” which no longer means a right to offend but instead has become a right not to encounter offense, no matter how unintentional that offense may be.

Ted Cruz puts it very succinctly when he notes “Not only are the Court’s opinions untethered to reason and logic, they are also alien to our constitutional system of limited and divided government. By redefining the meaning of common words, and redesigning the most basic human institutions, this Court has crossed from the realm of activism into the arena of oligarchy. (http://www.nationalreview.com/article/420409/ted-cruz-supreme-court-constitutional-amendment).

Arbitrary law brings with it the necessity of police state, because to enforce unequal law one must rely on oppression. On tyranny. Messy “interpretive” thinking creates the kind of consequences we’ll soon see, when same-sex couples begin suing religious institutions who refuse to perform their ceremonies. There’s a REASON Hillary Clinton’s campaign wouldn’t come out and say that the tax exempt status of a church not comporting with the Unites States of Anthony Kennedy may be in jeopardy.

Incidentally, you’ll note that I don’t mention the liberal justices. And that’s because their votes were pre-ordained. No one expected any different. Which is as much of a tell in re: our modern justice system as is any other I can think of.

We live in a post-constitutional period. And those currently celebrating the trees are too blind and overcome with superficial bliss to see that they are actually wandering deeper into a forest that will eventually envelope them, and from which they will never be able to find their way out.

Posted by Jeff G. @ 9:17am
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