Each day they went about their chores, the driving value of each action – “purpose.”
He arrived in The Community and they thought him odd. He would wander the fields gazing at the sky.
“Why?” they would ask.
“Because it’s beautiful.”
They would go away confused.
He became focused on an activity, shaping, molding, sculpting.
Ah! They thought. Finally! Purpose!
“No. Because it’s beautiful.”
In spite of themselves they gathered and watched, first curious (that was a new emotion) then in awe at what was taking shape.
He leaned over, blew into his creation, and it stirred.
He smiled, “Adam.”
Now, your turn.
From the city that taught everything Obama knows about thuggery …
Netflix service in Chicago is about to get notably more expensive. On the hunt for new revenue, Chicago’s Department of Finance is applying two new rules that would impact companies like Netflix and Spotify. One covers “electronically delivered amusements” and another covers “nonpossessory computer leases”; together they form a unique and troubling new attempt by cities to tax any city resident that interacts with “the cloud”. According to the Chicago Tribune, streaming service providers need to start collecting the tax starting September 1.
No fun for you without paying us!
8. The amusement tax applies to charges paid for the privilege to witness, view or participate in an amusement. This includes not only charges paid for the privilege to witness,view or participate in amusements in person but also charges paid for the privilege to witness,view or participate in amusements that are delivered electronically. Thus:
a. charges paid for the privilege of watching electronically delivered television shows, movies or videos are subject to the amusement tax, if the shows, movies or videos are delivered to a patron (i.e., customer) in the City (see paragraph 13 below);
b. charges paid for the privilege of listening to electronically delivered music are subject to the amusement tax, if the music is delivered to a customer in the City; and
c. charges paid for the privilege of participating in games, on-line or otherwise, are subject to the amusement tax if the games are delivered to a customer in the City.The customer will normally receive the provider’s electronic communications at a television,radio, computer, tablet, cell phone or other device belonging to the customer.
9. Providers who receive charges for electronically delivered amusements are owners or operators and are required to collect the City’s amusement tax from their Chicago customers.See paragraphs 13 and 14 below. As of the date of this ruling, the rate of the tax is 9% of the charges paid.
It is who they are, it is what they do.
(PS Here’s a suggestion for Netflix … stop streaming to all Chicago customers on 9/1.)
Hello, all. I’m not going to beat around the bush: I really want to raise the money for a Golden Tee home edition to help finish off my basement. I don’t deserve a cent from any of you, and I’m not going to pretend that any contributions you give are in direct support of pw. They’d be in direct support of an overpriced video game.
That said, I still really want the damn thing. It helps me relax and clear my head.
So if you want to contribute, cool. If not, cool. You’re still welcome here. Unless you’re a baked cod fish. Then you’re just a fucking interloper who hasn’t much of a life to speak of — and you’re here because, well, what else have you got going on? Plus, you make me throw up a little in my mouth every time you belch up your latest iteration of my supposed absence of social worth, so thick and wretched is the projection therein.
Thanks in advance.
Oh, geez, I’m so old I remember when people would complain about a TV show being offensive … [Darleen Click]
… they were told “turn the channel!” …
The latest victim of the growing controversy over the Confederate flag is the 1980s TV series “The Dukes of Hazzard.”
A TV Land spokesperson confirmed Tuesday that the network has pulled reruns of the series from its schedule, which had been airing twice a day.
The network declined to comment on why the episodes were removed, but the South-set show has come under fire recently for its use of the Confederate flag, which is emblazoned on the roof of the Duke Boys’ signature 1969 orange Dodge Charger.
Oh, look, some Libertarians are having a few second thoughts about the goals of gay activists post-Obergefell [Darleen Click]
And it is not like they haven’t been warned …
In the 40-some-odd years since the Libertarian Party took such positions, we’ve seen the end of sodomy laws, the end of officially sanctioned government discrimination against gay employees, both civilian and military—and with Obergefell v. Hodges, the end of government bans on same-sex marriage recognition. We’ve seen the end of just about every government policy that treats gay and lesbian citizenry as somehow less than the heterosexual citizenry.
So: Is that it, then? Have supporters won, after all this time? Should we move on to other issues of liberty?
Some gay activists are warning that no, there is still work to be done. There are other issues of concern that affect the gay, lesbian, and transgender community. Top gay activist Michelangelo Signorile, predicting the gay marriage ruling and the subsequent celebrating, wrote a book-sized warning, titled It’s Not Over: Getting Beyond Tolerance, Defeating Homophobia, and Winning True Equality. Even before the ruling, “What comes next?” analyses started popping up in the media.
But just because libertarians and gay citizens were aligned in the pursuit of ending government mistreatment, that doesn’t mean other goals line up. Libertarians draw that bright, hard line between government behavior and private behavior. Others often do not, and what many gay activists see as justice and equality in the private sector, libertarians see as inappropriate government coercion. […]
Religious Freedom Exemptions. Even more than anti-discrimination employment laws, there is a significant philosophical divide between libertarians and many gay activists, the American Civil Liberties Union (ACLU), and state-level civil rights commissions over the responses to religious business owners not wanting to provide their goods and services for gay weddings. We’re now seeing additional suggestions that religious colleges could be punished for not accommodating gay couples, and even an early suggestion that churches should not have non-profit status any longer.
The freedom to choose with whom to associate is a fundamental human and Constitutionally protected right. The ability to engage freely in commerce another one. Anybody with any doubts about the importance of free commerce to human liberty is encouraged to ask a nearby Venezuelan about the alternatives. As such, libertarians have consistently been supporting the rights of religious businesses and individuals to say “No thanks” to potential customers. […]
A wedding cake is not a right. A wedding photographer is not a right. Everybody has the right to engage in commerce. We have the right to buy and sell our services and goods, but it must be voluntary on both ends of the exchange. Nobody has the right to force the baker, the photographer, or anybody else to work for them in a free country. The exchange of money doesn’t make it acceptable.
When defending accommodation laws used to force religious people’s hands, the response tends to be something along the lines of “A business is not a church. If religious folks want to run a business, they can’t use their beliefs to ignore the law. Those who choose to run a business have to follow all the government regulations.”
This argument flips the idea of civil liberties completely on its head and attributes the source of our rights to the government, a contradiction of the spirit of our own Constitution. If somebody said “If people choose to speak out they have to follow all the government regulations,” most people would immediately wonder: “What sort of regulations are we talking about? We have freedom of speech. The government can’t just pass any regulations they want to control what people say.”
The same should hold true for people’s right to engage in commerce. Any law or regulation that inhibits the right of individuals to choose with whom to associate needs to immediately be treated as suspect. In order to justify restrictions or mandates on this freedom, the government should be required to prove that a significant amount of harm is the result of inaction.
You would think a place that uses reason as an identifier would be just a little less naive about their partners’ motives.
The Left is never satisfied with whatever skirmish they just won because the details of that skirmish were never a goal or anything really of importance.
They want power. Total and complete power over everyone’s life down the last book one reads or thoughts one will be allowed to think.
Whatever goals of a “freer” society Libertarians thought they were working towards when they partnered with the Left-subsidiary “Gay Rights” group, Libertarians were the useful idiots who helped make the rope that will hang them, too.
How does it feel, Reason, to wake up sore and find the bed next to you empty with a $20 bill on the nightstand?
me: “Seriously? Are you sure?”
me: “Wait — all of them? Or is that final s just an accident?”
me: “If you say so. But when I finish killing off all the abes, you’re going to have to tell the cops and the court that it was you who told me to do it, ok?”
Boggle: “Meh. No need. Kennedy and the other four morons will have our backs. There’s precedent now. Trust me!”
For you all! And because it seems really to tick off a needy, creepy, clingy, self-styled white fish who, like so many before it, can’t seem to quit me.
It took us about 7 months but we finally got the floors laid in the basement, having ripped out the carpet that came with the “finished” build. The floors now match (in appearance, not in material) the main floor hardwood. To celebrate the completion of the floors — and also the wrapping of the bar in steel corrugation — I fulfilled a lifelong dream to add a pool table to my home, in this case, an Olhausen Breckenridge table, bar-sized, which matches the reclaimed look of much of our furniture and features exposed finger joints, rough-hewn saw marks, and antiqued buffalo nickel sights:
Next up, I’m trying now to earn the money for a Golden Tee home edition game console, which for me reminds me of simpler times, hanging out with my buddies at a local pub during grad school. Both pool and Golden Tee help me to clear my mind by forcing me to concentrate on a largely physical task.
They aren’t cheap but they’re cheaper than therapy, even taken together. And when you add a bit of booze, they’re far more effective, too!
In fact, I’m going to put on a fundraiser to help me raise money specifically FOR the Golden Tee game console. I need more stress relief in my life, responsible as I am on a daily basis for a pair of chew-happy puppies and a couple of kids, one of who is the type of toddler who is drawn forever and only to the most dangerous object or situation in any room, ever.
In the comments to yesterday’s post, Ernst asks, “Jeff, how does intentionalism as an legal hermeneutic relate to originalism?”
This is a good question, so I thought I’d turn my answer into a separate post. Here’t goes: Originalism sets the boundaries for what comes to count as the text under examination for purposes of claimed interpretation: it forces the central and indeed kernel acknowledgment of intentionalism that the text is a document intended by an agency, that it isn’t living but rather a product of human work that is thereby fixed and complete. There are those like Scalia who claim to be originalists AND textualists simultaneously, but as I’ve tried to show, Scalia merely misidentifies what it is he’s doing (a proposition one lawyer sniggers at — confidently! — because after all, we know that lawyers are never wrong and are always and forever the smartest among us, praise be to the high priests of Civilization, amen!), because he doesn’t wish to be seen (I suppose) as what is now called a “purposivist”: he, like everyone else, is an intentionalist, of course — and the question always boils down to, a) can what is being done to the text be called “interpretation” to begin with, and b) whose intent is being privileged?
Intentionalism acknowledges the central tenet of agency at each point on the communicative chain; it recognizes that things such as code, convention, intertextuality, intratextuality, irony, historical situatedness, cultural dialogic, and so on., are all valid and potentially useful tools for interpreting a text if indeed what it is we wish to do with a text is try to decode what was intentionally encoded — presumably, in most cases, with the desire to be understood (there are of course cases where the intent is meant to be ambiguous or to play on multiple meanings simultaneously, in which case sigs can be formed by adding multiple signifieds to signifiers: irony, plays on words, etc.)
Textualism is dangerous as a legitimized methodology chiefly because, as we’ve heard Scalia claim, it pretends to bracket intent entirely. It does not, of course: it merely says that it is not going to be beholden to the original intent of authorship (which can be transferred to ratification for our purposes, a kind of ‘signing on’ to the text as a co-author) in order to reach an interpretive conclusion.
Scalia’s textualism is generally far less dangerous than that deployed by the left routinely to uncover “dog whistles” and the like in that it gives itself very limited latitude to play with signifiers and thus often times will match intentionalism in its output. This is likely why Scalia finds no problem with his formulation. But any methodology that claims it need not appeal to original intent — to the text as the output of some agency — is giving itself license to become the operative agency, no matter how deferential it may be in practice. It justifies the rule over meaning by the reader rather than the utterer / writer.
Again: it is different to say: 1) “in my reading, what the text signals for purposes of interpretation is X; and though you may have meant Y (and there’s a good chance you did), and though you still desire Y, the fact that you haven’t signaled Y precludes me from allowing the text to stand as if you’ve said Y”, and 2) in my reading, what the text signals for purposes of interpretation is X, therefore though you may have meant Y, the text tells me you must have meant X and Z and whatever other things I can find as well once I stop concerning myself with what you actually meant. Your text, once I bracket your intent, is OUR text, and whatever we can reasonable find in it is what it means. Therefore, thanks for the signifiers: we’ll take it from here. We’ve got some creative writing to do!”
No one would accept the latter as a controlling interpretive strategy. And yet that IS what textualism allows — and why it is important we are clear about what it is we’re doing when we claim to interpret.
In re: Purposivism, the only requirement seems to be that you’re able to claim that the text is ambiguous —- something you get to by way of textualism (you disregard the intent you’re seeing signaled and trying to work the signifiers to form a pattern of minor incongruity) — in order to claim you know an overall corporate intent that has no where been signaled.
As intentionalists will note, even IF your reading of intent is correct, your job, by way of constitutional role and legal convention, the latter being an important convention for a stable rule of law, is to make sure that intent has been signaled so that the law can be read repeatedly using the same text by people who don’t seem to boast your special knowledge of a hidden intent. In the end, you are editing a co-writing a law to say that it comports with the intent you see. If you’re a doctoral candidate in English literature building this case, many will see it as clever; if you’re a SCOTUS Justice, many will find it wholly illegitimate and both self-serving and self-aggrandizing.
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 as the perp, he is still the victim cuz Fake-But-Accurate(tm).
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.
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.
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.