From Liberty and Tyranny, Mark Levin on legal interpration:
[…] When parties enter into voluntary arrangements, such as contracts, they use words to describe the terms and conditions by which they are obligated to perform and on which they are expected to rely. Contracts are interpreted, and the intentions of the parties discerned, in the context of their original making
The conservative is an originalist, for he believes that much like a contract, the Constitution sets forth certain terms and conditions for governing that hold the same meaning today day as they did yesterday and should tomorrow. It connects one generation to the next by restraining the present generation from societal experimentation and government excess. There really is no other standard by which the Constitution can be interpreted without abandoning its underlying principles altogether.
If the Constitution’s meaning can be erased or rewritten, and the Framers’ intentions ignored, it ceases to be a constitution but is instead a concoction of political expedients that serve the contemporary policy agendas of the few who are entrusted with public authority to preserve it.
As James Madison, the “father” of the Constitution, explained:
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shapes and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in the modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased Enquirers into the history of its origin and adoption.
To say that the Constitution is a “living and breathing document” is to give license to arbitrary and lawless activism. It is a mantra that gained purchase in the early twentieth century and is paraded around by the Statist as if to legitimate that which is illegitimate.
Thomas Jefferson, in an 1803 letter to Senator Wilson Cary Nicholas of Virginia respecting the Louisiana Purchase, explained:
Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no other than the definitions of the powers which that instrument gives. It specifies & delineates the operations permitted to the federal government, and gives all the powers necessary to carry these into execution. Whatever of these enumerated objects is proper for a law, Congress may make the law; whatever is proper to be executed by way of a treaty, the President & Senate may enter into the treaty; whatever is to be done by a judicial sentence, the judges may pass the sentence.
The Constitution is the bedrock on which a living, evolving nation was built. It is — and must be — a timeless yet durable foundation that individuals can count on in a changing world. It is not perfect but the framers made it more perfectible though the amendment process.
The Conservative seeks to divine the Constitution’s meaning from its words and their historical context, including a variety of original sources — records of public debates, diaries, correspondence, notes, etc. While reasonable people may, in good faith, draw different conclusions from the application of this interpretative standard, it is the only standard that gives fidelity to the Constitution.
And where the Constitution is silent, states and individuals need not be. The Constitution and, more particularly, the framework of the government it establishes are not intended to address every issue or answer every perceived grievance. The is not a defect but a strength, because the government was intended to be a limited one.
The Statist is not interested in what the Framers said or intended. He is interested only in what he says and he intends. Consider the judiciary, which has seized for itself the most dominant role in interpreting the Constitution. When asked by a law clerk to explain his judicial philosophy, the late Associate Supreme Court justice Thurgood Marshall responded, “You do what you think is right and let the law catch up.” The late Associate justice Arthur Goldberg’s answer was no better. A law clerk recounts Goldberg telling him that his approach was to determine “what is the just result.” Still others are persuaded by the Statist’s semantic distortions, arguing that the judge’s job is to spread democracy or liberty.
The Conservative may ask the following questions: If words and their meanings can be manipulated or ignored to advance the Statist’s political and policy preferences, what then binds allegiance to the Statist’s words? Why should today’s law bind future generations if yesterday’s law does not bind this generation? Why should judicial precedent bind the nation if the Constitution itself does not? Why should any judicial determination based on a judge’s notion of what is “right” or “just” bind the individual if the individual believes the notion is wrong and unjust? Does not lawlessness beget lawlessness? Or is not the Statist really saying that the law is what he says it is, and that is the beginning and end of it?
When writing on intentionalism I’ve often noted that, far from a “theory of language” (as some have tried to frame it), intentionalism just is. What I mean by this is simple: what makes language language (rather than an accident that looks or sounds like language) is the intent to signify, to turn marks or sound forms into signs by attaching to the signifiers signifieds (or, if you prefer a triadic description of the sign, by attaching object and interpretant to the representamen).
As interpreters, to see language as language we must first believe that the signs we think we see are in fact signs and not mere marks we take to be signifiers: that is, we have to believe that they come from some agency who intended them as part of a speech act. To do otherwise is to pretend that something that merely looks like language is in fact language based solely on our own intent to see it as such. Or, to put it another way, our intent can turn something never intended as language into language; and the “author” of that new text is us.
Problems arise, as I’ve noted, when we attempt to dismiss intentionalism altogether (which is logically incoherent), or else when take the simple fact of intentionalism (it just is), agree to accept it as a linguistic premise, then promptly discard what accepting the premise truly entails with respect to meaning and interpretation.
Yet, that’s what many “conservatives” in the legal world have done by accepting a degraded form of “textualism” (which appeals to general convention and code) over “originalism” in its strongest form — which privileges, for purposes of interpretation, an appeal to original intent, with the premise being that the meaning was fixed at the time of composition and then again, legally-speaking, at the time of ratification (with the latter most crucial).
Textualists “look at the statutory structure and hear the words as they would sound in the mind of a skilled, objectively reasonable user of words.” In so doing, they believe they have freed themselves from having to consider as legally dispositive what they see as irrecoverable intent potentially spread among all those agencies responsible for the crafting and, ultimately, the ratification of a law or legal document.
But of course, they’ve done no such thing. Textualists are intentionalists by the very act of accepting that the text they are interpreting is, in fact, a speech act aimed at encoding law. Which makes their decision to then pretend that they are unconcerned with the actual intent of the original — privileging instead a conventionalized “meaning” based entirely on how they believe an ordinary reasonable person would react to the signifiers in order to reconstruct them as signs — quite troubling, in theory if not always in practice: because the vast majority of laws will be written in such a way that the lawmakers’ intent is abundantly clear, the textualist can convince himself that his method of privileging linguistic convention over intent (which to the textualist ceases to be important once the text has been ratified and turned into law) is both acceptable and, because it brackets the problems that arise in trying to negotiate the difficult reconstruction of intent as a governing condition for ratification, far more practical as an approach to interpreting law.
But “textualism,” thus described, is no different from any other intepretive stance that privileges convention over intent as the locus of meaning; the only difference is, the conventions of legal writing are such that intent tends to hew much closer to convention as a point of composition than might, say, colloquial speech, or imaginative writing, etc.
That is to say, it is a convention of legal writing to adhere as closely as possible to the conventionalized language of the legal profession. Knowing this, legal interpreters are able to rely heavily on convention when decoding (and re-encoding) signs. But what this doesn’t mean is that convention is responsible for giving a sign its meaning: instead, meaning is still derived from intent (the intent to signify on the front end, and the intent to see signs on the back end) — with convention, as always, simply a convenient way to signal intent in a system that relies on the arbitrary connection of sound forms to objects/referents.
Recall Madison: “What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in the modern sense.” Conventions change. And so what may seem quite “reasonable” for an interpreter inside the framework of modern convention may disarticulate entirely from what the original intention signaled under prior conventional conditions. One need look no further, for instance, at how “liberal” or “tolerance” are now conventionally used to recognize that convention is quite capable of assembling itself into formulations that entirely invert previous conventionalized signalings.
Where the textualist goes wrong is in thinking that, because it is a particular convention in legal writing to rely heavily on convention generally speaking as a way to signal intent, it is therefore acceptable to rely on convention as the ultimate arbiter of meaning — with that meaning then attributed back to the text itself, regardless of what the original intent (and so the original meaning) may have been. Or to put it more simply, the textualist has given himself permission to allow his own intent to use convention act as the guiding principle in determining meaning, when where he should be looking is toward original intent.
In most cases of legal interpretation, the textualist and the originalist will reach the same conclusions as to a statute’s general meaning. And that’s because, as I’ve noted, the statute is likely composed in such a way that the intent will track very closely with the meaning one is likely to glean using convention as a guiding principle of interpretation. And in fact, this is how most interpretation works: convention, code, and context all work together to signal intent.
But from a linguistic and semiotic standpoint, it is important that we make the distinction — important to recognize what it is we think we are doing when we interpret is just as crucial as the decoding itself — because convention, inasmuch as it is a kind of cultural shorthand, is a collective endeavor, while meaning, proceeding from a speech act, is the product of an original intent that may or may not adhere to convention. Allowing convention to stand as the final arbiter of meaning is allowing the receiver of the speech act to determine what the original utterance means. Dismissing as unimportant or unrecoverable the original intent of a text gives the intepreter permission to elevate his own intent — his own resignification and retextualization of a set of signifiers (the dismissal of authorial intent strips them of their status as signs until they are resignified by the interpreter) — to privileged status. Rather than interpreting the law, he is writing it. At least, that’s how it would work if we follow to their logical conclusions the textualist’s own description of what he thinks he is doing when he interprets.
When a textualist and an originalist come to the same reading on the meaning of a statute — as more often than not they will do — it is easy to dismiss the differences in linguistic philosophy as insignificant. But from the perspective of a coherent view of how speech acts function, it is important to note the difference: the originalist, insofar as he believes he is decoding the original intent of a statute, is actually interpreting; whereas the textualist, insofar as he dismisses intent and relies on convention to “interpret,” isn’t really interpreting at all. He is rewriting the text, albeit often in such a way that his own re-textualization closely or exactly matches the intent of the original. Either that, or he is misrepresenting what he is he is doing — and as a result permitting others to adopt what he claims are his methods as linguistically legitimate.
The question is, do we really want our rights determined by a series of happy accidents?