May 2, 2010

Provocateurism 13: Originalism vs. Textualism, cont.

In response to my recent post on legal interpretation and intentionalism, Patterico raises a series of questions that speak to what I think are a number of common misunderstandings about language as it exists on the structural level. He writes:

As I understand Goldstein’s latest post, he argues that textualist judges are, in most cases, reaching the same result as intentionalists would. The reason, he explains, is that lawmakers tend to write laws in a specialized way that appeals to conventionally understood meanings. Accordingly, an interpretive approach that claims to favor conventional meaning will tend to approximate the legislature’s true intent in most cases. Thus, in legal interpretation, the practical distinction between a textualist and an intentionalist is usually a distinction without a difference, at least in terms of results.

However, Goldstein argues, there is a very troubling difference between the two approaches on a theoretical level — because if the textualist is not trying to ascertain the actual intent of the legislators who passed the law, he is simply privileging his own intent over that of the legislature. Judges are interpreting language, Goldstein argues — and language can be understood as language only if you appeal to the intent of the speaker (or, in the case of law, the ratifier). If the judge does anything else, he is (in Goldstein’s view) simply rewriting the law according to his own intent.

But as I noted above, in his writings on interpretation, Justice Scalia has advocated a very different view: that adherence to the text of a law is crucial to the concept of the rule of law. His view is that the rule of law requires citizens to be put on notice as to the content of the laws they are supposed to obey. This notice should take place through the plain language of the statute.

The question, as I have posed it before, is this: what happens when the clear text of the law says one thing, but the intent of the ratifiers was clearly something else?

First — while I understand what Frey is getting at here — the question as posed is, from the perspective of how language functions on the structural level, incoherent. And that’s because the clear text of a law does not “say” anything until we attach intent to it. To believe what we are approaching is in fact language, we have first to assume what we are engaging with are signs. Convention and context will readily convince us of that — it is unlikely, after all, that randomly generated signifiers would assemble themselves into what looks to be sentences and paragraphs, in legalese, properly punctuated — but what we must keep in mind is that, given millions of monkeys and millions of typewriters, that identical assemblage of marks could theoretically arise; and what Frey, the textualists, most formalists, and the New Critics would all be committed to is the argument that the monkey-generated text and the identical looking text produced by the legislature have, for the purposes of their “plain text” argument, the same meaning. And while equating legislators with monkeys is fulfilling on an certain level, we nevertheless all recognize that accidents differ from intended texts, else we would spend more time “reading” cloud formations and come to the conclusion that God must really like copulating sheep.

And so, logically, we believe either 1) that the randomly-generated monkey text intended to legislate in a particular way; or that 2) it is our intent to see in those signifiers signs that track with legal convention that is providing the monkey text with its meaning.

What Frey is arguing — and what he has been arguing all along — is the notion that, once we internalize the assumption that a text is indeed intended as a speech act, from a legal perspective, we need to interpret that text as most reasonable people would.

And there is nothing wrong or mistaken about such a convention for legal interpretation, provided we recognize it as such: a convention, and so shorthand for determining intent. Which is why what I’ve been trying to illustrate is that what must happen to animate that convention is that intent is still determinative as a structural imperative for identifying where meaning lies.

If, to follow Frey’s hypothetical, the clear intent is different from the plain text, why, one might ask, would the plain text — insofar as it signals what it is not intended to signal — remain operative? That is, why not simply amend the statute to ensure that it better tracks with legal convention?

But in keeping with the spirit of the exercise Frey introduces, let’s assume that the legislature was not aware that it hadn’t properly signaled its intent when it drafted the law — and that the “plain text” of the law “says” to a judge something entirely opposite of what the legislators intended. In this scenario, the legislature only finds its mistake when a judge is forced to rule on the law as it is written. What is a judge to do? Should he, knowing the legislative intent, rule in favor of the a meaning that seems entirely at odds with the “plain text”? Or should he respond that, regardless of the intent of the legislature, the “plain text” of the law, viewed as such as a function of the conventionalization of legal conventions (“plain texts,” recall, don’t “say” anything without our intent to see them as intended speech acts), is what the ruling must necessarily foreground, because “adherence to the text of a law is crucial to the concept of the rule of law,” and because “the rule of law requires citizens to be put on notice as to the content of the laws they are supposed to obey,” and “this notice should take place through the plain language of the statute”?

To those who have followed my writings on intentionalism, the disconnect here should be clear: from a linguistic standpoint, the statute means what it means, and a failure on the part of the legislators to signal what they meant will lead to a failure on the part of those on the receiving end of an utterance to properly reconstruct the original meaning. A failure to signal what you mean is not a failure to mean, nor does the meaning change simply because you failed to signal it.

And so the onus is now on the judge to rule in a way that will tell us a lot about what he thinks it means to be a judge.

In my prior answer to Frey’s hypothetical, I wrote:

In one example, the legislature wrote “$1,000,000? then later claimed it meant “$10,000.” Okay. So? They failed to signal their intent. Law working as it does, the judge has every right to doubt their ex post facto claims to that intent. And he has every right to tell them that, if that’s what they really intended, perhaps they should rewrite the law in such a way that their intent is signaled more clearly.

Frey responds thus:

This response addressed a different situation than I had posed in the post. Goldstein here addresses the question of how to handle a situation where legislators attempt a post hoc re-interpretation of their words. In that case, Goldstein argues, a judge is interpreting properly if he is suspicious of their after-the-fact claims regarding their intent, and instead tries to determine their intent at the time the law was passed.

But in my post, I asked readers to assume for the sake of argument that the legislature’s intent indeed really was to impose the tax on people making over $10,000. Assume that, in countless debates over several months, legislators consistently made it crystal clear that the tax was to apply to anyone making over $10,000. The evidence is not post hoc but rather contemporaneous and overwhelming. Assume that we know the addition of the extra zero was a drafting error, turning $10,000 into $100,000.

Yet the bill they passed, and the bill the President signed, contained the term $100,000. How should that term be interpreted by a judge?

Note that what Frey is asking here has ceased to be a question of language or interpretation: in his hypothetical, the legislators have overwhelming evidence that they meant what they meant, and the judge, in this hypothetical, is convinced that they meant what they meant — and that what they wrote signaled something that they didn’t mean when viewed through the lens of legal convention. Which is to say, the judge has now interpreted the text with an appeal to intent — while acknowledging the caveat that the law as it appears on paper, filtered through the lens of conventional legal usages, doesn’t properly signal that intent.

In other words, he knows what the law meant to the legislature; and he also knows that the law poorly signaled its intent, and ran afoul of legal conventions that require intent to be discernible through conventional — or “plain text” readings. And so he has now completed his interpretation as interpretation.

How a judge is then supposed to act, therefore, is not a linguistic question. It is a question of legal convention — a question of what a judge is to do with the correct interpretation of a text in a context where the text as written runs afoul of legal convention. If the judge sees his role as interpreting and applying the will of the legislature, he might rule that the legislature’s intent being what it is, the law means what they say it means. And yet he might find that the law isn’t binding in this instance because it runs afoul of an important legal convention adopted to ensure that “the rule of law requires citizens to be put on notice as to the content of the laws they are supposed to obey.”

The judge in this example has privileged convention over intent — but what he hasn’t done is suggested that the law doesn’t mean what it means.

In the context of legal interpretation, the convention that intent hew closely to the conventions of legal language is an important one; but what is not in dispute here is that the judge has decided that what was actually meant is less important as what most people would take a poorly signaled text to mean.

The reasoning for doing so may seem sound (and, indeed, prudent) when placed in a larger context of meting out “justice” or “fairness.” But from a linguistic standpoint, it is clear that the judge in this instance has either thrown out or bracketed his recognition of what the statute meant in favor of an interpretation that he suspects most people, given the configuration of the signifiers, would make.

In short, he has privileged his own belief over the (poorly articulated, but nevertheless established) desire of the legislature — with the reasoning for doing so being that the legislature has the obligation to signal its intent more clearly so that “citizens [...] be put on notice as to the content of the laws they are supposed to obey.”

To this judge, the conventions of legal writing take precedence over the will of a legislature who chose to operate outside of those conventions.

The judge’s insistence that the text of the law mean, for purposes of ruling, what he knows it doesn’t mean, has supplanted the intent of the legislature. That is activism. Ruling that a statute means one thing — but refusing to allow what it means to operate as binding because what is meant is so poorly signaled — is quite different than enshrining as a hermeneutic principle that the poor signaling best represents what a statute therefore must “mean” for the purposes of being legally operative.

Whether it is an activism we find acceptable or not is another (different) question. Linguistically, however, it is important that we recognize that it is still, nevertheless, activism, highminded in its application or not. And it is important because, in the vast majority of instances, such hermeneutic maneuverings will be used to justify “plain text” readings that don’t share the unlikely (and loaded) trappings of this particular hypothetical, in which a text appeared to say something entirely different from what it meant to say.

Discuss.

****
update: In the comments, JSchuler writes:

Personally, I find the whole notion of “legislative intent” to be an utter crock. There is no way that a body with conflicting interests, that has to hash things out via compromises, lies, and out-right bribes, can be said to intend anything, as it has no shared goal, desire, or philosophy. The individual legislators may each have their own intent when voting, but those individual intents cannot be summed to come up with a collective intent.

In short: intent, like rights, is for individuals, not groups.

My response is that such a stance is adopted when people think of intent in a way that corresponds solely to their own notions about how best to interpret law as a special kind of language.

But legislative intent, like any intent, just is: it is the application of a desire to express meaning attached to the signifiers charged with doing so that makes the text mean at the moment it means — at the moment, that is, that it becomes a text in the first place. And it is the responsibility of anyone desiring to “interpret” that text to reconstruct the intent that created it as clearly as possible in order to best understand the meaning of a speech act — to understand, that is, what those who originated it meant by it.

To ignore “legislative intent” because, as a specialized endeavor, one recognizes the difficulty in reconstructing it, it having come from a variety of (potentially) compromising forces whose individual intentions may sometimes conflict when taken separately, is to ignore where the originating locus of meaning for the law lies.

One may, alternately, choose to privilege the intent of the reader — and so privilege what s/he can do with the (now unattached) signifiers — but to do so is to place the meaning of law not with the lawmakers, but with those instead who read the law.

In other words, laws at that point are “made” by judges, because it is judges at that point who are responsible for turning signifiers into signs, and so writing the text themselves.

If you are okay with that, make it clear that you are. Me, I find that such a maneuver violates the spirit of the separation of powers.

Worse still, it plays into ideas of will to power, consensus meaning, and the inevitable de-legitimizing of the individual — for reasons I’ve outlined several times elsewhere. As a linguistic assumption, it favors progressive ideology, and is at odds with Enlightenment paradigms for establishing “truths” as something outside a mere voting interest.

Posted by Jeff G. @ 11:41am
200 comments | Trackback

Comments (200)

  1. Frankly, in reading these posts, I find myself asking, “Why is there any argument about this? Of course, one must look to the intent of the speaker/writer.”

    Consider the sentence, “Pudding will be served at the conclusion of every meal.” To the Englishman, “pudding” means “dessert.” To the American, it means something else. Who wrote it? What did s/he mean/intend.

    Of course, I probably just a hick from the backwoods, but this seems intuitively obvious to me. Correct interpretation cannot come without divining the intent of him/her conveying the thought.

    Regards.

  2. what happens when the clear text of the law says one thing, but the intent of the ratifiers was clearly something else?

    The sergeant-at-arms confiscates the ratifiers’ crack pipe.

    Patterico should leave language interpretation to people who speak something other than lawyer.

  3. R. Sherman, Patterico is fucking up because he’s not asking about language, he’s asking about law. While the law contains language, calling law language for that reason is like calling a cake, eggs.

  4. Mac, trust me, I know about law and language. I’m a lawyer and spend my life making money off this stuff. So, you know, God bless vagueness.

    Regards.

  5. BTW, where I live, courts are required only to look at the text, not legislative intent. Thus, the legislature has to revisit its laws periodically to amend them to rectify problems with its original language in order to more precisely reflect its original intent. A cumbersome, but ultimately effective process.

    Regards.

  6. BTW, where I live, courts are required only to look at the text, not legislative intent. Thus, the legislature has to revisit its laws periodically to amend them to rectify problems with its original language in order to more precisely reflect its original intent. A cumbersome, but ultimately effective process.

    Regards.

    This is an example of a guild-like convention being enshrined as a guiding principle in the service of “justice” (as opposed to privileging the locus of meaning).

    That the legislature is then told to revisit the wording periodically to ensure that its intent is being privileged is a workable compromise between the competing imperatives of privileging intent and following legal conventions (and so enabling those without recourse to legislative notes, committee transcripts, etc., to adopt a useful conventional interpretation that they believe reasonably tracks with the intent of the legislature).

  7. pudding is all good

  8. Jeff,

    “Compromise” is a good term. The courts in my state basically issue opinions that say, “this is what we believe these words say. If that’s not what your meant, then fix it.”

    In a society where the rule of law is paramount, and (as in my neck of the woods) laws are construed strictly against the drafter, I think it’s not a bad way to go, given that our jurisprudence forbids looking at legislative histories to determine what a statute says. Stated differently, it’s Scalia’s view/convention enshrined as the interpretive rubric of our state.

    Regards.

  9. And so the onus is now on the judge to rule in a way that will tell us a lot about what he thinks it means to be a judge.

    BTW, where I live, courts are required only to look at the text, not legislative intent.

    A law in the miserable state I once inhabited had, by any logical aim a reasonable legislature can arguably be said to have possessed, morphed into an applied effect the clear, polar opposite of that intent. Having failed in court to instill that logic at the dismal level of Court Master, I appealed. Before a judge the decision was split so as to give both parties a sense of, well, fairness. Whatever intent may have existed in the legislature was ultimately up for grabs, and may the louder party be granted a decision that neither confirms nor denies that intent.

    The point remains: An minor industry sprang up around the convoluted meaning and the players in that new system winked and nodded as they cashed the checks. The legislature’s intent was turned on its head, the clear context lost, and because of the profit centers that arose, nobody ever took action against that error.

    I’d like to learn R. Sherman’s view on the principle of standard of practice, where if everybody’s doing it, no one lawyer can be singled out for the offense of bad practice. If a court is required only to look at the text and not legislative intent, I have to wonder if that rule is itself a barometer of a uniformly low standard of practice. It’s litigants certainly are.

  10. The impulse to pervert the meanings of others runs deep in just about everybody I think. Meaning, there is also respect and humility what are factors in this. An ethos. I think we used to call it having integrity.

  11. By the way, the statute in question was this:

    Willful underemployment or unemployment is not a sufficient cause to deviate from the awarding of at least the minimum amount [of child support]

    The net result was that an art form was made of never running afoul of “willful” while “unemployment” languished. One could be unemployed — presumably by no action of one’s own — clearly to avoid an obligation of support, which could run to a thousand or two thousand dollars a month.

    Entire cases arose to define and redefine “willful” while non-custodial defendants were co-habitating with or married to multi-millionaires, leaving impoverished custodial parents at risk of losing custody because of that poverty. Naturally, the unemployed were never so by their own choice, even though they defined their clear intent when they used it to avoid the obligation. The routine argument was that these wealthy defendants owed no support because of that unemployment.

  12. At first I thought you were going to address a different issue. My vague understanding of the law and how laws are interpreted is based on the idea that the wording of laws is supposed to be very specific (i.e. the signs and signifiers are well-coupled so as to avoid misinterpreting the sign). The problem is (as has been addressed before I believe) that there can be a tendency in the long term for the signs associated with the signifiers to change a little. In other words, what looked like specificity in the short term becomes less specific in the long term. Therefore, over a long enough period of time the standard method of legal interpretation of a law as written could very well change over time.

    With respect to an intentionalist perspective, there is not a problem because one must always do one’s best to understand the signifier-sign relationship as it existed at the instantiation of the document in question. From a legal perspective, however, there may be a problem because one is more likely to interpret a law given one’s current understanding of the signifier-sign relationship, and not the understanding that existed at the time of instantiation.

    Perhaps this has already been discussed and put to bed, but I think it might be an important point.

  13. JHo, I don’t dispute your account. It happens. We lawyers spend our time and clients’ money trying to deal with these issues.

    Part of the problem is that these institutions consist of humans who screw things up. I would suggest, the convention of construing things strictly against the government, though imperfect, at least in the long term, does more to protect the public from government excess, because it encourages lawmakers to be explicit in what they mean and to be accountable to the public for the effects of the reams of paper they spew out for six months of the year.

    Perfect?

    No.

    I know not where you live or what your situation was, but in my state, had your problem been brought to the attention of the legislature it could have been addressed. I know this, because I’ve done it, and have an original governor-signed copy of a bill correcting an issue which affected a lot of people.

    Don’t blame us lawyers for doing our job. I know it sounds maudlin, but some of us really do take those oaths on our licenses seriously.

    Regards.

  14. JHo, I just now read your subsequent comment. Suffice it to say, situations such as yours caused me to stop practicing domestic law.

  15. In the first paragraph, I meant the meaning of the law could change over time, not the method of interpretation.

  16. I’m not blaming you, R. Sherman, because there’s no evidence you’ve earned it. Thank you for the insights.

    Because of the unintended consequence, I suppose I tend toward the end of the spectrum just shy of anarchy. We get into trouble just dealing with the rights to life and property, don’t we? Anarchy probably sucks but it has a certain grim authenticity to it.

  17. situations such as yours caused me to stop practicing domestic law.

    You grow in stature, R. Sherman. Surely the three words “practicing domestic law” are among the legal professions greatest oxymorons.

  18. The problem with anarchy is that inevitably the strong will prey on the weak without mercy. I agree that I would like there to be fewer laws, though.

  19. The problem with laws in and of themselves is systemic, really. By definition, legislators make laws. If they aren’t doing that, people wonder why the legislators are in office in the first place. The result is what we have, more and more laws, such that any given person minding their own business cannot keep track of them all. That is not a good outcome, but I don’t know what one could do about it short of hitting some kind of cosmic reset button.

  20. Personally, I find the whole notion of “legislative intent” to be an utter crock. There is no way that a body with conflicting interests, that has to hash things out via compromises, lies, and out-right bribes, can be said to intend anything, as it has no shared goal, desire, or philosophy. The individual legislators may each have their own intent when voting, but those individual intents cannot be summed to come up with a collective intent.

    In short: intent, like rights, is for individuals, not groups.

  21. You’ve just defined the progress in progressive, cranky. Or in another time, Getting Back to the Business of the American People™. We love the bullshitting.

  22. JSchuler,

    While I tend to agree with you regarding where “intent” lies, in the context of legislation, the legislative branch can try to express its collective intent in some fashion. It usually involves a bunch of paragraphs which begin with the word, “Whereas.” All of those paragraphs are voted upon and approved before the law is signed by the executive. In my state, they’re binding on the courts. It’s things like the minutes of legislative hearings and debates that the judiciary cannot rely upon in interpreting the written laws.

    Regards.

  23. “…but I don’t know what one could do about it short of hitting some kind of cosmic reset button.”

    Texas seems to attempt to limit the damage by limiting the session. I heard a few days ago it runs 140 days once every two years.

  24. JHo, I stopped when domestic law ceased being based upon the written word of the law, and became founded upon social engineering prescribed by various and sundry worthies in the social sciences.

    You want stories; I got ‘em. Suffice it to say, you’re preaching to the choir.

    Regards.

  25. Personally, I find the whole notion of “legislative intent” to be an utter crock.

    Such a stance tends to be adopted when people think of intent in a way that corresponds solely to their own notions about how best to interpret law as a special kind of language.

    But legislative intent, like any intent, just is: it is the application of a desire to express meaning attached to the signifiers charged with doing so that makes the text mean at the moment it means — at the moment, that is, that it becomes a text in the first place. And it is the responsibility of anyone desiring to “interpret” that text to reconstruct the intent that created it as clearly as possible in order to best understand the meaning of a speech act — to understand, that is, what those who originated it meant by it.

    To ignore “legislative intent” because, as a specialized endeavor, one recognizes the difficulty in reconstructing it, it having come from a variety of (potentially) compromising forces whose individual intentions may sometimes conflict when taken separately, is to ignore where the originating locus of meaning for the law lies.

    One may, alternately, choose to privilege the intent of the reader — and so privilege what s/he can do with the (now unattached) signifiers — but to do so is to place the meaning of law not with the lawmakers, but with those instead who read the law.

    In other words, laws at that point are “made” by judges, because it is judges at that point who are responsible for turning signifiers into signs, and so writing the text themselves.

    If you are okay with that, make it clear that you are. Me, I find that such a maneuver violates the spirit of the separation of powers.

    Worse still, it plays into ideas of will to power, consensus meaning, and the inevitable delegitimizing of the individual — for reasons I’ve outlined several times elsewhere. As a linguistic assumption, it favors progressive ideology, and is at odds with Enlightenment paradigms for establishing “truths” as something outside a mere voting interest.

  26. signing statements are an interesting innovation what has bearing here too I think

  27. Jeff,

    Precisely.

    Our courts look at the words of the statute signed by the governor and say, “We think this is what this means. This is what the legislature intended.” Sometimes the legislature’s language adequately expresses that.

    Many times, not.

    Thus, the legislature must revisit its work to instruct the courts in order to prevent the judiciary from running wild.

    The problem is, the judiciary must be willing to restrain itself from becoming an Über-legislature. When that restraint goes, so goes the rule of law, in my view.

    Regards.

  28. That’s one way to do it, sdferr. It’s also another argument for term limits.

    I have to go with Patterico on this one, Jeff, because one of the mechanisms that gets odious laws revoked is to apply the absurd nonsense the literal meaning will provoke. Exhibit A: the EPA is proposing to issue regulations on CO2 under the Clean Air Act in the name of “globull worming” prevention. The problem they have is that the plain language of that law defines a pollution source that must be controlled as one producing an annual volume of 250 tons. Since the average human puts out 750 tons or so of CO2 per year, the EPA is going to either have to shut them down, or figure out how humans can breathe only 1/3 as much as they do now. And the Constitutional requirement of equal treatment under the law isn’t going to support ducking it.

    Hopefully, the result will be EPA bureaucrats and Congress critters having to corner the market on tar removal solution, or the repeal of the law.

  29. SDN -

    You’ll have to explain to me how what you’re arguing in any way troubles what I’ve written. I’m not seeing the problem at all. If you’re saying that using an incoherent linguistic model is helpful in overturning bad law, then all you are saying is that something that’s wrong, when marshaled in defense of a greater good (as you define it — or, indeed, will it), can be useful.

    That is, of course, a truism. But it is dangerous precisely because it can be gamed just as easily by those who want to use it in favor of a greater good you might not find very useful at all.

  30. Thus, the legislature must revisit its work to instruct the courts in order to prevent the judiciary from running wild.

    To arrive at the original intent?

  31. SW, to better express its intent.

    Regards.

  32. But as I noted above, in his writings on interpretation, Justice Scalia has advocated a very different view: that adherence to the text of a law is crucial to the concept of the rule of law.

    This becomes problematic, as Patterico well knows, when language changes over the course of several centuries, at which point the plain text of a law can become anything but plain text. Without recourse to the intent of the legislators, the now-unplain text is clouded.

  33. And regards to you, Sir.

  34. In short: intent, like rights, is for individuals, not groups.

    Part of the problem of Patterico’s hypothetical is that the difference between the 10,000 and the 100,000 is printer error – it is a TYPO with all earlier drafts of the legislation, all discussion showing clearly the 10,000.

    I related on Patterico’s thread that one time I went to my BofA atm to withdraw $20 and the balance on my receipt showed I had an extra $12,000 in my account.

    BofA eventually discovered their error and took it back (with a nasty phone call to me). My reading of the “plain text” of my receipt would have never flown as a defense if I had tried to take out that $12,000 and spent it on myself.

  35. For all here who have noted that what is “plain meaning” at one time may lose its status as “plain meaning” over time (particularly if there is limited precedent with respect to decisions involving the law to guide judges far down the line), you are correct; I’ve noted this as a problem inherent to the “reasonable” standard often enough that I didn’t feel the need to revisit it here.

    For the purposes of this post, I wanted to stick to Patterico’s own conditions (though I find them unlikely to ever occur in practice, they nonetheless obtain in theory, and so are worth addressing on those terms).

    And the end result is the same: either we privilege meaning on the side of the originator, or on the side of the reader. Intent is present on both ends. Whose intent we privilege will tell us whether we are interpreting or rewriting.

  36. But say Jeff, the typo, God knows how, was “Patterico must die? then the legislature later claimed it meant “$10,000.” In this hypothetical, must Patterico die?

  37. “This is like saying to somebody who’s just been through childbirth without anesthetic, ‘Oops, we made a little mistake there. We’re going to reinsert the fetus and you’ll have to go through it again.’”*

  38. “Such a stance tends to be adopted when people think of intent in a way that corresponds solely to their own notions about how best to interpret law as a special kind of language.”

    Well, remove the adverb and I might well be guilty of the above. I assure you, my understanding of intent emerged before I developed notions of legal interpretation.

    I tend to think that, ideally, law should be machine readable. The machine does not care what you intend, only what you tell it to do. If you intend it to do one thing, but it does something else, the error is in your commands, not the machine. It is entirely reasonable for the machine to react to the usage of “and” instead of “or,” even though you might have seen them as interchangeable. So, when we can replace judges with computers, I’d pull that trigger in a heartbeat. It’s why I believe machine recounts do better at preserving the integrity of the voting process than an army of volunteers and lawyers scrutinizing every dimple or hanging chad.

    “But legislative intent, like any intent, just is”

    And this is where I disagree, as my position is that legislative intent is not. It does not exist. It’s as mythical a construct as Rousseau’s General Will for the very same reason: the individual units cannot be summed to create a whole.

    “Worse still, it plays into ideas of will to power, consensus meaning, and the inevitable de-legitimizing of the individual.”

    But that’s the thing: there is no individual here. The legislature is a collective body. To ascribe an intent to it (and how do you do that?) means we must elevate that intent above the intents of everyone who voted for it, with their own reasons and own understandings.

    “As a linguistic assumption, it favors progressive ideology, and is at odds with Enlightenment paradigms for establishing “truths” as something outside a mere voting interest.”

    I will turn this around and state that, contrary to your claim, the belief that there is such a thing as legislative intent favors progressivism, as it encourages legislators to be sloppy and vague in their language, dismissing the implications of their bad wording with “The law won’t be applied that way, we have the best of intentions!”

    ObamaCare is a perfect example of the above. The bill was passed without anyone having read it, confident that since they had a particular intent when passing it, that the bill itself was good. We have reached a point of absurdity in Congress where intent is everything, and content nothing. However, as soon as the practical matter of implementing the law comes to the foreground, intent must take a back seat because you cannot build the rule of law simply on desires.

    In contrast, look at the Arizona law. When discussing whether the law threatened civil liberties, a lot of weight hung on the term “legal contact.” The legislators stated that they intended that to mean detention or arrest, but were not content to leave it at that. In response to the debate, they changed the wording so they didn’t just intend for the law to be read that way, but to make it so the law could only be read that way. There was a recognition that legislative intent was not a sufficient constraint on the text of the law.

  39. 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.

    The Judge is an idiot, and you should have demanded a jury. Legislative intent should only come into play when need be. If the law says “people making over $100,000 per year.” then that’s who it applies to and if the Legislature doesn’t like the consequences of that inarguably clear (according to standard convention) meaning being applied, then it’s up to them to go back and change the law so that it says what they meant it to say. Which, incidentally, would not be a reinterpretation, but a rewrite.

    Patrick still doesn’t get it and I suspect he never will.

  40. 38. Comment by JSchuler on 5/2 @ 2:27 pm #

    I agree.

    Legislatures know that legal conventions are used in interpreting law and, thus, write the laws using them. That is, they know the words of the law will act as the evidence of the intent of the law. If the legislature does a poor job in writing the law, it is their job to correct the problem, not the judges.

  41. I will turn this around and state that, contrary to your claim, the belief that there is such a thing as legislative intent favors progressivism, as it encourages legislators to be sloppy and vague in their language, dismissing the implications of their bad wording with “The law won’t be applied that way, we have the best of intentions!”

    ObamaCare is a perfect example of the above. The bill was passed without anyone having read it, confident that since they had a particular intent when passing it, that the bill itself was good.

    Here we have a different problem. One could argue that the law reflects Congress’ intent because they passed it. But then, they largely didn’t even write it. It isn’t the product of the million monkeys, but neither is it a clear set of intentions articulated. Much of it is little more than “accident” as it isn’t authored in any meaningful way so much as it is edited/compiled. We’ve already seen many unintended consequences (and what does legislation do if not create consequences?) and as a work, it’s nearly incomprehensible.

    That we tolerate such sausage-making is our failing as a society.

  42. Pablo, it’s not a different problem, it’s just legislative intent taken to its natural conclusion: the words in the stack of paper we’re voting on don’t matter, what we say in front of the cameras does.

  43. When a legislature votes on a law, what is he voting for? The intent of the law or the words of the law? Does the legislature expect those who enforce and are bound by the law to use the words of the law to direct their actions, or the intent of the legislature to direct their actions?

    As Scalia believes, I believe that the words of the law as understood at the time of the writing of the law is all that should be used to interpret the law.

  44. Before I finish the post I will comment on this: The question, as I have posed it before, is this: what happens when the clear text of the law says one thing, but the intent of the ratifiers was clearly something else?

    As a lawyer, as I understand legislative interpretation, the legislature meant exactly what they wrote. Common dictionaries are used to find definitions (if those are not provide in the statute), and legaldictionaries, and other technical dictionaries based on the subject of the legislation (a law for natural gas pipelines could be interpreted using definitions from the natural gas industry and the pipeline industry). If the legislature intended one result from the legislation and something else happened because of the way the legislature wrote the law, then the legislature can always amend the law – and that does happen.

    The whole concept of determing legislative intent is pretty well defined now, the courts know the rules and processes for that, and the lawyers can quickly find those out through either (a) Lexis, (b) WestLaw, or (c) the relevant digest on that area of law.

    Now back to reading the full post and the other comments.

  45. it’s just legislative intent taken to its natural conclusion: the words in the stack of paper we’re voting on don’t matter

    That would be legislative intent taken to its absurdist conclusion, I would say.

  46. Or in other words: Use better words, dumbass legislature, and amend as fast as you can – because your intent is going to be determined by what you wrote.

  47. I don’t believe that laws should be interpreted for their intent. Laws should be interpreted for their meaning. Lawmakers should monitor the results of the laws they write. If results don’t meet their intentions, then they should modify the law, so that the meaning of the law will cause results that meet their intentions.

  48. Legislatures know that legal conventions are used in interpreting law and, thus, write the laws using them. That is, they know the words of the law will act as the evidence of the intent of the law. If the legislature does a poor job in writing the law, it is their job to correct the problem, not the judges.

    I believe I have stated exactly that.

    What doesn’t change is that, regardless of how poor the job was of writing the law, the intent was what it was, and the law therefore means what it meant. To interpret it is to reconstruct that meaning. To read it and rewrite it as you think it should have been written is not to interpret at all.

  49. Pablo, it’s not a different problem, it’s just legislative intent taken to its natural conclusion: the words in the stack of paper we’re voting on don’t matter, what we say in front of the cameras does.

    No, it’s legislative failure. It’s a gaggle of fools intending soup, throwing into the pot whatever makes it into their grubby little hands. The product does not match the intent, yet we’re forced to eat it anyway. It’s scandalous.

  50. “That would be legislative intent taken to its absurdist conclusion, I would say.”

    Nature is sometimes absurd.

  51. And this is where I disagree, as my position is that legislative intent is not. It does not exist. It’s as mythical a construct as Rousseau’s General Will for the very same reason: the individual units cannot be summed to create a whole.

    Without legislative intent you have no “text” other than the text that the reader creates out of marks on the page.

    Intent as a function of animating meaning is not a construct. It is a necessity. Otherwise you are privileging as language accident — or, to put it another way, you are pretending that something is language that cannot possibly be language until you decide to see it that way.

    And once you do that, you are privileging your own intent.

    I will turn this around and state that, contrary to your claim, the belief that there is such a thing as legislative intent favors progressivism, as it encourages legislators to be sloppy and vague in their language, dismissing the implications of their bad wording with “The law won’t be applied that way, we have the best of intentions!”

    Knowing that intent animates language does nothing to “encourage” any kind of sloppy use. If you want your intentions honored, you’d do well to signal them as clearly as possible.

    You seem to be getting caught up in what is by and large a descriptive: intent animates and fixes meaning. It doesn’t guarantee that the meaning will be readily understood or easily discernible. Legal convention requires that, for your intent to be honored, you should follow legal conventions for signaling your intent. What it doesn’t do is change your meaning — or change where meaning is located — unless the possibility that someone can fail to signal their intent is used as a reason to ignore that intent, and such a procedure is then institutionalized.

    You want to rely on convention. As I said, that’s fine. But know what it is you are doing, and know why it is you are doing it.

    To say, however, that a text means what it demonstrably wasn’t intended to mean — all because either you (or legal convention) can make it mean something else — is to say that meaning is in the eye of the beholder, or determined by a given set of conventional rules.

    But conventions change. Codes change. Context changes. Original meaning, once fixed, is what it is.

  52. When a legislature votes on a law, what is he voting for? The intent of the law or the words of the law? Does the legislature expect those who enforce and are bound by the law to use the words of the law to direct their actions, or the intent of the legislature to direct their actions?

    What does it matter? Either way, the legislature is voting for what it intends.

    As Scalia believes, I believe that the words of the law as understood at the time of the writing of the law is all that should be used to interpret the law.

    The words of the law as understood at the time of the writing of the law by those who used them is what is generally used to interpret the law.

    And that’s because the law gives a lot of weight to its own legal conventions. As such, it assumes that the “words of the law at the time of the writing of the law as understood at the time of the writing of the law” would be used conventionally by those writing the law.

    That is, the assumption is that those who wrote the law intended their words to be used according to current legal convention.

    If, for some reason, you believed that the legislature was NOT using current legal conventions, you’d be obligated to read the law in that context if you wanted to claim that what you are doing is “interpreting.”

    I don’t believe that laws should be interpreted for their intent. Laws should be interpreted for their meaning. Lawmakers should monitor the results of the laws they write. If results don’t meet their intentions, then they should modify the law, so that the meaning of the law will cause results that meet their intentions.

    If a law is interpreted for ITS meaning, it is being interpreted for intent. If law is interpreted for “meaning” conceived of as apart from any intent to mean something specific, it isn’t being interpreted at all: it is, at that point, a set of signifiers. It will only become a text once the reader adds to it his intent.

    So you are ALWAYS using intent to determine meaning. But you aren’t always interpreting when you do so, because it makes no sense to say you are “interpreting” if what you are “interpreting,” in the sense of decoding and re-encoding a speech act for the purposes of understanding what it is trying to say, is a text of your own construction.

    Lawmakers modifying the meaning of the laws would either be better signaling their intent, or else changing their original meaning to a new meaning they now prefer.

  53. The legislature is a body, a large committee, voting on something. While the debates, and the record of those debates, may reveal what a legislator intends, it is only the vote for the bill – and the language contained in that bill – that truly reveals what the legislature wants done as a whole. And that intent is based on the language that was passed. There really is nothing for a court (as an official body) to interpret other than what the legislature (as an official body) actually voted on, passed, and the executive signed into law than those words of that statute. And the rules for interpreting statutes are set up the way they are to give broad deference to the legislature (the committee of authors). Every word is to be given effect, and absurd results are to be avoided if possible, but sometimes absurdity is written (legislatures are made up of humans after all) and absurdity is the result.

    Not at the office today – not going to the office today – to check up on what I wrote. But that is what I recall about legal interpretation (which obviously colors how I think about any interpretation).

    The law passed is being interpreted in a manner that the legislature does not like? The legislature can always amend the law. Getting out of the world of arch-types, this is what is done when a court interprets a statute in a manner the legislature (as a body) does not like.

  54. ObamaCare is a perfect example of the above. The bill was passed without anyone having read it, confident that since they had a particular intent when passing it, that the bill itself was good.

    Obamacare is not a perfect example at all. Those who passed it who hadn’t read it may have intended that it be used a certain way, but there is no guarantee that what you intend will adequately signal what you hope to signal.

    That those who passed it meant something by it is not in dispute; all that you are arguing here is that they were sloppy in the execution, and that they failed, on multiple occasions, to follow legal convention if what they intended is not being signaled clearly in the law they passed.

    A desire to mean what you mean is not a guarantee others will take your meaning. It is only a guarantee that you meant what you meant.

    Pointing that out is not forgiving sloppy communication. It is pointing out that sloppy communication is not fixed by giving the power of meaning over to the receiver of a text simply because we aren’t happy with how the sender signaled the message.

  55. The legislature is a body, a large committee, voting on something. While the debates, and the record of those debates, may reveal what a legislator intends, it is only the vote for the bill – and the language contained in that bill – that truly reveals what the legislature wants done as a whole. And that intent is based on the language that was passed.

    All you are reiterating here is that the court has decided to privilege convention because convention is, legally speaking, easiest to adjudicate. Therefore, legislators, should they want their meaning understood, would do best to signal their intent clearly.

    This is the same for all communication. I have never disputed that. In fact, it’s common sense.

    But when the senders of a speech act fail to signal their intent, they haven’t failed to mean or failed to intend. Therefore, it makes no sense for a reader to say that a legislature meant something it didn’t mean. Instead, a reader can say that what was intended isn’t clear, or isn’t what’s coming across. And so therefore it is up to them to amend the language to adhere to legal conventions for interpretation.

    And that is different then saying something to the effect of “regardless of what the legislators intended, the law “says” this.” Because implied in that formulation is an unwritten addendum, namely “regardless of what the legislators intended, the law says this to me.”

    And the only way that can work is if the meaning for the law is taken out of the hands of those whose law it is and given over to those whose supposedly role is to determine meaning.

  56. Jeff, your #48 is where I believe I’m trying to draw the difference: the law means what it says, according to the definition of the term at the time it was written. Thus, militia in the 2nd Amendment means the entire population entitled to and capable of bearing arms. It doesn’t mention race, so race has no bearing; likewise sex. And before anyone mentions that slaves couldn’t bear arms, slavery likewise isn’t defined by race, it’s a legal condition. If the law doesn’t allow slavery, but culture allows de facto slavery, then anyone with the power to enforce that law has something other than personal capriciousness to work with.

    Another example is “hate crime” laws. The motive you had for committing murder, assault, etc. doesn’t or shouldn’t matter. The only use for “motive” is actually to narrow down the field of investigation to a set of suspects who can be examined in more detail to determine if it is possible for them to have used x method to commit the crime at the time and place specified. “Racial profiling” is nothing more than the attempt to say that a particular group of people has a “motive” to do this that justifies including them in the subset needing further investigation.

    Law must include an objective definition of what causes it to apply. The $10,000 number in the example is simply the objective standard. It doesn’t matter what standard they intended vs what they wrote; otherwise, what’s to stop them from substituting any number they please?

  57. #48 Jeff G.:

    Of course.

  58. #53 is what I was trying to say.

    It’s my contention that lawmakers know, understand, and accept that the meaning of laws is based on the collective meanings of the words of the law. And if a law is written so that the collective meanings of the words of the law are different than what the lawmakers meant, then the lawmakers forfeit their meaning. In order to reclaim their meaning, the lawmakers need to modify the law.

  59. #55 Jeff G.: There are conventions, because without those conventions the law cannot function. And the law does not drill down into your profession as much as you do. The law cannot do that, legislatures cannot do that, courts cannot do that. If everything said or written or signified becomes a matter of debate without an arbitrarily (or not) fixed meaning – no matter how that meaning is fixed – then there is nothing to debate.

    The law is a profession, and it sets terms and definitions for laws. Like it or not, this is how it works. Like lawyers or not, that is how we work. And I like to think I am good at it, and yes – I have pride.

    Now – how we come to consensus on these meanings? That is something else.

  60. Law must include an objective definition of what causes it to apply. The $10,000 number in the example is simply the objective standard. It doesn’t matter what standard they intended vs what they wrote; otherwise, what’s to stop them from substituting any number they please?

    Nothing. But all you are asking me is what is to keep them from lying about what they meant.

    What they meant is what they meant at the time the text became text. They can’t change that. They can only reiterate it, lie about it, or modify it.

    As I noted the first time I addressed the hypothetical, the judge has every reason to doubt the legislature if it comes back and argues “we wrote X, but we really meant Y.” He has every right to doubt that because legal convention being what it is, he is right to point out that, regardless of what they say they meant, it is clear that when they signaled what they meant they did a poor job.

    But Patterico wanted to take away, for purposes of this hypothetical, that very move. Instead, what he has posited is that the judge is convinced that the legislature meant what they say they meant, and that what they wrote merely does a poor job of making their intentions clear.

    At that point, when asked to rule, he can say “okay, you meant what you meant, and the law means what you say it does, but I will not uphold it because it violates legal conventions, and doesn’t allow the rank and file to properly understand the conditions intended to make it operative.” He would then direct the legislature to amend the law to better tie their intent to conventional legal (and, in the case of Frey’s hypothetical, numeric) usage.

    What he HASN’T DONE, however, is tell the legislators that they didn’t mean what they meant, or that the law in front of him doesn’t mean what they meant by it. After all, he is convinced that they are sincere in declaring that they merely mis-signaled their intent.

    And so it makes no sense for the judge, knowing this, to say the the law means what it doesn’t mean. Instead, it is a confusing law that is easy to misconstrue, and so should be amended with clearer language.

    For a judge to say “I know what you meant by it, but I say it means something else” is to take the power of the legislature and give it to the judge. In this example, most of us might not balk.

    Me, I would. Because the argument for doing so is linguistically faulty. And I don’t want that same faulty linguistic premise – which gives power of meaning to those on the receiving end of an intended message — to gain purchase in far more likely situations than the one provided in this hypothetical.

  61. If everything said or written or signified becomes a matter of debate without an arbitrarily (or not) fixed meaning – no matter how that meaning is fixed – then there is nothing to debate.

    Again, convention is used to help signal intent. As are adhering to particular codes, argots, etc. Meaning is always fixed by intent. The question is, whose is being privileged and why.

    You should be careful not confuse those things used to help the process along with what is at stake in the process itself.

    Putting the onus on the legislature to be clear about what they intend does nothing to trouble that they intend, and because they intend, they have created something that they mean.

    The law is a profession, and it sets terms and definitions for laws. Like it or not, this is how it works. Like lawyers or not, that is how we work. And I like to think I am good at it, and yes – I have pride.

    Actually, it doesn’t work at all without intent assumed. And it breaks down when the receiver of an intended message is allowed to dismiss that message as intended and replace it with a message of his own construction.

    This is how language works. Like it or not — lawyer or not — that is how it works.

  62. “He has every right to doubt that because legal convention being what it is, he is right to point out that, regardless of what they say they meant, it is clear that when they signaled what they meant they did a poor job.”

    To me the problem is that the lawmakers unknowingly changed the meaning of the law. The two amounts, 10,000 and 1,000,000, have different meanings. By substituting one for the other, the meaning of the law changes. It doesn’t change the intentions of the lawmakers, but it does change the meaning of the law.

  63. I would like to know if anyone thinks that Jesus was unclear in the words that he spoke; there does not seem to be a great deal of wiggle room in them as far as I can tell on the subject of baby killing.

    Sorry, I meant “choice”.

    But the late-late-late-term abortion providing “doctor” who was shot dead in church read them and came to a much different conclusion from the one the man who shot him came to.

    I submit that the dead one (the doctor, not the baby) was an intentionalist, he managed to find in the Bible a chapter that permitted infanticide. Thus proving that there is no text so clear as to not be misunderstood by those determined to do so.

  64. The Bible does not define our laws, nor does every Christian fully adhere to the teachings of Jesus. We cannot know how the doctor justified his actions, but he probably did so with some kind of secular argument since he could not make a religious one (I don’t think he could, anyway).

  65. pudding!

  66. However, the Bible and the law are clear on the guy who shot the doctor. Both consider that murder. “Vengeance is mine, sayeth the Lord.”

  67. how can you have any pudding if you don’t eat your meat

  68. The two amounts, 10,000 and 1,000,000, have different meanings.

    Conventionally, yes. Unless we’re dealing with, eg., pesos, or some other monentary system, wherein they could conceivable equal the same amount. And so the signifiers can mean the same things, depending on the context in which they are used.

  69. But the late-late-late-term abortion providing “doctor” who was shot dead in church read them and came to a much different conclusion from the one the man who shot him came to.

    I submit that the dead one (the doctor, not the baby) was an intentionalist, he managed to find in the Bible a chapter that permitted infanticide.

    Everyone is an intentionalist. The question is, whose intentions are you privileging.

    Those who don’t consider themselves intentionalists still privilege intent; they just mostly dismiss original intent as either unimportant or unknowable, and substitute some other version of intent in its place.

    In your example, if the abortion doctor in question believes the authors of the Bible intended the meaning he, as a doctor, was adhering to, he’d be behaving like an intentionalist, even if he came to the wrong conclusion. Conversely, if someone else (say, for instance, the shooter) decided that the “text” of the Bible meant the opposite of what the late term abortion doctor claims it meant — and that someone else decided such on the basis of “what the text says,” not what its authors meant — that someone would be acting in a manner that is linguistically dangerous, even if he came to the correct conclusion.

    It matters how you get there. The ends don’t justify the means.

  70. If we are to interpret laws in such a way as to determine the intent of the law–instead of the meaning of the law, based on the definitions of the terms used to comprise the law–then laws should be considered nothing more than a summary of the legislative process instead of the final result of the legislative process. Which would be contrary to how we consider laws.

  71. If we are to interpret laws in such a way as to determine the intent of the law–instead of the meaning of the law, based on the definitions of the terms used to comprise the law–then laws should be considered nothing more than a summary of the legislative process instead of the final result of the legislative process.

    Law is a problematic arena in which to discuss intentionalism as it is one area in which intent does not remain as meaning. True, those who wrote it meant something, and that meaning is fixed, but it isn’t operative in the enforcement of law, the letter is. Or, it doesn’t matter what they meant, it matters what they said using legal convention to decode the meaning. Law is one of very few areas in which meaning must be ascribed to a text by an interpreter and in which there are enforced consequences attributable to that decoded meaning.

    If you’re writing law, and you don’t convey your meaning plainly in strictly conventional terms, you’re doing it wrong. And we’ve got plenty of people doing it wrong quite regularly.

  72. And it is not within a judge’s purview to use indicators outside a law to convict a person who followed the conventional meaning of the law as written. I don’t care what color his dog is, or whether he’s named it Perez.

  73. #71

    Exactly!

    It doesn’t matter what was involved in creating a law. It only matters what the actual law says. If the enactment/enforcement of a law produces results different than the lawmakers intended, then the lawmakers are at fault and need to modify the law.

  74. Arbeit macht frei put the arb- back in arbitrary.

    Oedipus, on the other hand, took his orbs out of his orbitals.

  75. One of the problems here is that several people have failed to divine Jeff’s intent in using the word “intent” :-)

    As Jeff uses the term, it’s — I don’t want to say “mechanical”, so allow me to coin a neologism — mechanismic. That is, we have before us a text. The/those person(s) who produced that text were somehow impelled to select a convention, and, based on that convention, selected marks which are, according to that convention, signifiers, and to indite them for the perusal of others. The force that impelled them to go through those steps was intent, in the sense that Jeff uses the word.

    The example of the monkeys is instructive. The only intent the monkeys had was to make marks — they did not select a convention, or choose marks that were signifiers under that convention, except at random. That they produced a readable message is pure coincidence.

    Intended effect of the message is a secondary concept overloaded upon the first. For the clearest and most glorious example I know of that, consider the Executive Order regarding torture. It is brief, clear, concise, and uses no complex or difficult terms — and provides no guidance whatever, much less direction on the subject. We are now totally unable to discover whether or not the President (Nixon?) who issued that order intended that the effect of the Order was to stop torture or enable it; the man’s no longer available for questioning. What is clear from the text is that he intended to produce an ambiguous message, in the mechanismic sense I cite above.

    Intent, as Jeff uses the word, is the force that impels a “speaker” to produce a text that will transmit a meaning. The effect of that meaning upon the receiver of the text (“reader”) is a separate and higher-level consideration.

    Regards,
    Ric

  76. Patrick still doesn’t get it and I suspect he never will.

    He gets it. I’ve seen him get it. He just won’t concede.

  77. “It matters how you get there. The ends don’t justify the means.”

    Enlightened.

  78. The effect of that meaning upon the receiver of the text (“reader”) is a separate and higher-level consideration.

    Where “effect” means “the actions the reader takes after being influenced by the meaning divined from the text”

    I don’t have time for more. I didn’t really have time for this. I’d like to get to bed before 0100 at least once in the next few days.

    Regards,
    Ric

  79. I must have missed that, di.

    Ric, good to see you. How’s things?

  80. Pat’s problem is that he insists on thinking that “intentionalism” allows people to get away with something. That they can say any old thing, then when spit hits the spam, walk back the words and pretend they “meant” something else and we have to accept the walkback, even when we know better.

    Pat would do well to understand exactly what it is that Jeff is trying to fight: the willful misinterpretation of words by malicious groups who want to smear someone regardless of what they actually meant.

    The old Mexican immigrant woman asks a young black man, “Boy, what time is it?”

    And then she’s pilloried for time immemorial as a racist, even though in Mexico, “niño” is a perfectly acceptable way to address a young man.

    There’s Rush Limbaugh, pilloried for time immemorial for his comment about the black quarterback (and also for invented quotations that he never uttered).

    There’s Bill Bennett, whose utterance about abortion and crime rates was adequately padded with caveats and explanations, and who is pilloried as a racist anyway, his intention be damned.

    Pat just can’t bear to take off his laywer’s hat to deal with ordinary communication.

  81. I must have missed that, di.

    It was tiny and buried in a wall o’ words and he finally kinda sorta admitted that intent:utterance::motive:action.

    But if you blinked you missed it, because he then carped at length about Jeff’s extra-specialized use of the word “intent” and found that it was much more fun to continue arguing as if he didn’t get what Jeff meant, so on it goes.

    And on and on and on.

  82. Pat’s problem is that he insists on thinking that “intentionalism” allows people to get away with something.

    And a liar always thinks you’re lying to them. A thief always thinks you’re stealing from them. A gossip always thinks you’re talking about them. An adulterer always thinks you’re cheating on them.

  83. If we are to interpret laws in such a way as to determine the intent of the law–instead of the meaning of the law, based on the definitions of the terms used to comprise the law–then laws should be considered nothing more than a summary of the legislative process instead of the final result of the legislative process. Which would be contrary to how we consider laws.

    If you want to make it a precondition of legal interpretation that conventional meanings will be considered the first instance of divining intent, that is still no different than what most people do when they interpret. The use of convention helps signal intent. It is shorthand.

    But there is no meaning without intent. None. Doesn’t exist. Can’t even logically exist.

    Which is to say, you can’t interpret “the meaning of the law” without first appealing to intent, because intent establishes meaning.

    Instead, what you are arguing is the “meaning of the law” — your intent as a reader to see the law as adhering as closely as possible to legal convention — takes precedence over what the legislature meant when it crafted the law.

    As I noted in the earlier post, such a maneuver won’t generally get you into theoretical trouble, because most legislation will be written in such a way that legal conventions are adhered to, if for no other reason than legislators want their laws followed, and their intentions in crafting and passing the law understood.

    Where it WILL get you into trouble is when you begin to believe that the meaning is more yours than those who drafted and ratified the text. Which is what tends to happen when one begins to think it possible for a text to have “meaning” without intent animating that meaning.

  84. It doesn’t matter what was involved in creating a law. It only matters what the actual law says.

    What was involved in creating the law — the intent to mean — is responsible for what the actual law says. If you say it says something else, and you base that on conventional usage, you are saying that convention (or group ideas of what means what) trumps an individual’s expression — and that what the law means to you is to be privileged over what the law meant to those who crafted it.

    And if you do that, you are writing your own laws and pretending you’ve interpreted.

    Law creates a special problem — particularly in a hypothetical like the one Frey uses — because it insists on conventional usage in order to ensure the most consistent readings.

    But that insistence is put in place so that receivers of the text have the best chance to decode the text the same way each time, using the same rules on every occasion.

    It doesn’t change the fact that what the law meant was fixed at the time of ratification, and that anything purporting to be an interpretation of that law must acknowledge that fact.

  85. so when the scotus decides that the commerce clause covers a wheat farmer that grows and uses grain for himself, are they correct with the intent of that clause? just askin’ as an example

  86. Jeff,

    For the most part I agree with #83 and #84.

    What I’m saying is that words have a definitional meaning. The specific words used and the sequence they are used are based on intent. If the law is written with words/sequencing that doesn’t express the desired intent, then the new meaning is the proper interpretation of the law. In other words, it’s possible to express your intent in a way that changes its meaning.

  87. 1. use IS meaning.
    2. Although you seem to want to insist that the justices spring full formed from the forehead of Zeus or something…..they represent the collective intent of the people.
    They are appointed by the executive with the approval of the legislative.
    The legislative and the executive in combination can even CONSTITUTIONALLY change the number of justices.
    So the supremes are simply not operating in some pure language alternative universe.
    Even through several filters they still express the will and intent of the people in a representative government.

  88. The legislative and the executive in combination can even CONSTITUTIONALLY change the Constitution, you fucking dimwit.

  89. I don’t think they represent the collective intent of the people. You might could be thinking of American Idol?

  90. Someone too simple to grasp something as fundamental as the rule of law is going to explain to us how wrong we all are.

    Unbelievable.

  91. Article III

    Section 1

    The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

    Section 2

    The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

    In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

    Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

    Section 3

    Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

    The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

    Don’t see represent in there anywhere at all. You?

  92. nishit lecturing Jeff G and the result of us on this topic, or nearly any other topic, is the rhetorical equivalence of me trying to lecture y’all on thermonuclear quantum applied physics.

  93. She’s not “lecturing”, JD, she’s trolling.

    Although “hectoring” might work…

  94. I’m gonna count this as on topic.

    Where’s Waldo? Possibly in an uncaring universe of confusion and despair. Or, you know, over there by the stop sign.

  95. so when the scotus decides that the commerce clause covers a wheat farmer that grows and uses grain for himself, are they correct with the intent of that clause?

    Given that the commerce clause contains the word “among,” and that “among” is like “between,” only with more that two parties involved, and that the wheat farmer wasn’t planning on transporting his grain over any state lines, the answer is an unqualified NO.

    So they overrode the intent of the commerce clause, in this case, by ignoring the plain meaning of “among.” And thereby ignored the intent of the clause.

  96. **

    The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply.

    and

    It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices.

    accedes about all the license wanted. About the whole of the remainder is rendered in this:

    Control of total supply, upon which the whole statutory plan is based, depends upon control of individual supply. [...]

    In its effort to control total supply, the Government gave the farmer a choice which was, of course, designed to encourage cooperation and discourage noncooperation.

  97. So they overrode the intent of the commerce clause, in this case, by ignoring the plain meaning of “among.” And thereby ignored the intent of the clause.

    or the intent of the document. namely the 10ther part. i may be wrong but the intent of the const. of the us should be of limited fed gov’t. everything else is pudding.

  98. The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply.

    where in the const. of the us does the fed have this right? wheat prices aren’t mentioned. proggs are putting a intent where none is found. to simplify the proggs make shit up.

  99. It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices.

    It may be well established by decisions of the Court, but it flies in the face of any honest and reasonable interpretation.

  100. One of the problems here, of course, is that “meaning” is axiomatic. What does “means” mean? It means “means”….

    One place where I differ from Jeff is in trying to draw a line between “intentionalism” and “textualism”. Boundaries are a perceptual artifact; lines are an intellectual abstract of boundaries. Neither exists in Nature. Here’s a solid block of steel. If we examine it closely enough, about all we can say is that we’re somewhat more likely to encounter a proton “inside” the block than “outside”, and the zone where that changes is fairly broad.

    In the same way, trying to find a bright line between “intentionalism” and “textualism” is futile. The very fact that we use the concept of privilege implies a continuum — privilege isn’t exclusive. We are, in a way, trapped into textualism, because what we have before us is the text; we must determine the conventions the utterer used to encode meaning into it, and for that we have to examine the text. Privilege merely means that the originator of the text is more important as regards its meaning than the reader. The originator intended to communicate meaning to the receiver, and if we don’t think that’s the most important factor there’s no point in communication anyway. At the same time, all we actually have before us is the text.

    So, at the one extreme, we can examine the intentions of the utterer and ignore the “plain words” of the text. Somebody pointed out, above, that what you get is Progressive law — “We intend that poor people get help when they’re sick!” But there’s nothing there to take action on.

    At the other extreme, we take the “plain words” according to the current convention of their meaning (which may be idiosyncratic to the reader) and ignore the original intent. Again, we get Progressive law — arguing that the Framers intended the Commerce Clause to enable Congress to prescribe our medicines would be so ludicrous not even nishi tries it. (Jefferson once picked that very thing as an example of the possible ridiculous extremes of tyranny.)

    So we have to pick a spot on a continuum between the extremes. In doing so, we have to privilege — tend toward — the intent of the utterer of the text, or we are simply seeing illusions projected from the backs of our eyeballs. The shapes are real. What the shapes are is in question.

    I’ve looked at clouds from both sides now
    From up and down, and still somehow
    It’s clouds’ illusions I recall
    I really don’t know clouds at all…
    (J. Mitchell)

    And at that point I’ve lost my train of thought.

    Pablo, I reckon I’m about as well as can be expected. Tired, though. 45 miles each way to spend an hour with Bobbe takes a big chunk out of the day. All is well, and if it’s not, it’s still one day closer to God.

    Regards,
    Ric

  101. G’night all.

    Regards,
    Ric

  102. In the same way, trying to find a bright line between “intentionalism” and “textualism” is futile.

    I disagree. The line comes when we stop to consider what it is we think we are doing with a text.

    Privileging the utterer — the person who willed into existence the signs to try to communicate through the construct of a speech act — is what we do when we wish to interpret. And it is on this point that so many people seem to stick.

    Textualism, as Scalia articulates it, is a form of originalism, albeit one that believes legislative intent should be evident in the plain text of the law — that is, that conventional usage should be enough to establish meaning, making divining intent either superfluous or unnecessary (at least, so he thinks).

    For the legal profession, such is the case — at least, so long as textualism holds as an (agreed upon) interpretive paradigm. But lawyers tend to see their rules as the natural state of language function. They seem not to recognize that it is itself a convention to privilege convention — an act of pretend that is accepted as a kind of compromise to balance what legislators mean with the clearest possible articulation of that meaning to the widest array of people.

    Those of us from other fields, however, recognize in Scalia’s textualism the linguistic problems that plague all formalism, namely, that — try as they might to kill off the author — they cannot do so without replacing his intent with their own. To maintain that convention determines meaning is to maintain that, for example, the dictionary makes words mean what they mean.

    Exactly backwards. Words mean what people use them to mean, and then gain common use after enough people borrow a given iteration of representative meaning. That common use is reflective in convention. Conventional use signals likely intent. But it is not dispositive. Intent is. Particular conventions come and go. The way we mean — by intending and signaling that intent — remains constant.

    Of the two nodes on the continuum of privilege, the one whereby the creator of the text being interpreted is responsible for imbuing that text not only with meaning, but with its very textuality (when textualists look at the text of a law, they assume it came from some human agency who intended it to mean), is the proper node to anchor interpretation.

    Because interpretation that doesn’t even pretend to care what the original message intended has surrendered the any semblance of interpretation (in the context of a speech act) and has become an act of intellectual onanism.

  103. Best wishes, Ric. Stay strong if you can and let me know if you need anything.

  104. Meaning is usage, you silly teabagging racists.

  105. Zook.

    Use that.

  106. Jeff,

    #102 has made your position more clear for me. I still can’t fully accept it, though.

    When it comes to law, I think it is up to the author of the law, knowing that convention is used to interpret law, to make sure the author’s intentions are clearly expressed in the words of the law. If the law’s author fails to do this, the author is knowingly forfeiting its intentions to the interpreter.

    As far as a dictionary is concerned, if the author of a law is using a term that may be misinterpreted, the term can be defined in the law. If the author fails to do this, the author is acknowledging that the current definition applies.

  107. “…knowingly forfeiting its intentions to the interpreter.”

    Intends to forfeit (knowingly)? Unless he says, “make of it what you will”, this wouldn’t seem to follow from error, that is, intending to do one thing but doing through error another.

  108. “Intends to forfeit (knowingly)?”

    I didn’t say the author intends to forfeit his intention. I’m saying the author understands that his failure to express his meaning in a way that can be interpreted using conventions will result in his forfeiture of his intent to the interpreter.

  109. He hasn’t in error forfeited his intent. He retains his intent altogether, I think. He still meant what he meant.

    Take the recent case of the revision to the Arizona law, in particular the removal of the word “solely” from the sentence “The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin.”

    The intent was to eliminate …consideration of race in the enforcement of this law”, yet the stress placed on solely by the opposition to the law conferred an intimation of “…it’s ok if race is partly used” where no such intent was present. So, if we can call the inclusion of “solely” an “error” due to the writer’s failure to appreciate the potential for the mis-use of the term, their intent has been overridden, yet they retain their intent and correct the mis-use simply by removing the faulty term.

  110. That I find these threads on language and intent the most interesting to read probably says something about myself. That this is one of my all time favorite short stories comes from the same place. If there is anyone reading this thread who hasn’t read “The Library of Babel” by Jorge Luis Borges I recommend it highly.

  111. I’m not saying that the author’s intent is changed. As you say, “He still meant what he meant”. I’m saying that the author understands that he forfeits the right to have his meaning honored if he fails to express his meaning in the words of the law. He reclaims his right by modifying the law to more clearly express his intent. Just like your Arizona example.

  112. An honest reader can readily understand the sentence including the term “solely” (merely by placing the stress properly on “based”), and does honor to the writer, who hasn’t failed to express his intent, except to have failed to write out every possible dishonest reading, which hardly seems a worthy aim.

  113. My mistake. Your Arizona example doesn’t demonstrate my point.

    But that doesn’t change my point.

  114. Maybe offer another example Fred. Or would returning to the $100,000 vs $10,000 one do for the purpose? Even removing the clarity Patterico’s use of it had instilled (the insertion of constant reference to $10,000 in debate), in order to reintroduce an uncertainty presumed to be present in the population subject to the law? The point as Jeff has put it, has moved from a question of linguistics to one of procedural convention, given the burden placed on the people attempting to fulfill the requirements of the law. And that meets your accord, I take it.

  115. I’m saying that interpretation of law is understood to use certain conventions. Thus, when a law is written, it is required of the author to write the law in such a way that legal interpretation will result in their intent to be determined accurately. If the law’s author doesn’t write the law in a such a way, then the author understands that the meaning reached using legal interpretation will take precedent over the author’s meaning. In order to reclaim the law’s intended meaning, the laws author needs to modify the law.

  116. Fred –

    All you are arguing is that, in the field of law, the guild has agreed to use convention as a way to determine, for the sake of ruling, what an author intended when that intent is not otherwise clear.

    That’s an agreement that doesn’t speak to how language works. It speaks to how the legal profession deals with certain tricky issues of interpretation. It is a convenience.

    Where the problem arises is when the guild sees what it’s doing for the sake of convenience as consonant with how language works ordinarily. But textualism itself, being a procedural convention, may one day fall out of favor. And what won’t have changed, as conventions come and go, is that a law still means what it means.

    How we chose to determine how the law operates with respect to where its meaning is (linguistically) located is what is being battled over.

  117. There seems to be a backgrounded assumption in this that both the author[s] of the law and the one[s] reading and interpreting it are operating in an honest fashion, in good faith.

    This is not always the case especially when the law is of a politically controversial.

  118. At any rate, I’ll have to pick this up tomorrow. I’m in the middle of a Chuck Norris marathon, and I only paused Silent Rage to catch up with the thread.

    And one doesn’t pause Chuck. One merely waits for one of Chuck’s roundhouse kicks to turn the earth backwards on its axis, and so stop time momentarily.

  119. add “subject” at the end.

  120. Even the devious or mendacious can be subject to error though, eh geoffb?

    heh

  121. What I am “subject” to is changing a sentence after I’ve written it and then having to modify a following one and missing something in the small pane that is the comment window. Happens all the time to me.

  122. I was thinking (rather than about your dropped “subject”) of trying to interpret the writings of legislators the likes of which we’ve got now, which are devious enough without including into them the unintended faults likely to arise in massive tomes of 2,000 pages extent. They’re genuinely mind-boggling, if only because they’re built on obvious lies, nevermind the impossible reaches into the myriad dealings of a $14T economy, even were they to be error free.

  123. Yes though a lie or a trick can just as easily be misunderstood as the honest attempt at communication since even those are attempts to communicate. Just that what is being truly said is at a hidden level.

  124. However in the case of the monsters this Congress has unleashed it is my belief that they have designed them to be interpreted at a later date by the Executive branch to be whatever that branch wishes them to be.

    Plus they have included all kinds of little “Easter eggs” in all of them. Time bombs to go off when activated by some obscure line in another piece of legislation.

  125. Looking back at Willard v Filmore and the citations given in support of the claim B Moe objected to at 99, I read a little in Swift and Company v. United States, where the issue is in government coming down hard on meat companies in collusion with one another in an attempt to monopolize their business and *gasp* “set” prices. “We’ll have none of that” says the government. And then turns around in Willard 38 yrs later and says “We’ll set the prices, thank you.” Coming and going, brother.

  126. My point is when interpreting communications in general, it is the responsibility of the receiver of the communication to correctly interpret the author’s intent. But, in interpreting law, it is the responsibility of the author to correctly express his intent.

    Thus, if the method of legal interpretation changes, like definitions and usage changes, then the author of a law needs to change how he writes a law so that its meaning will be correctly determined when the new method of legal interpretation is used.

    The method of interpreting law can’t be the same as that used for interpreting other forms of communications. Law is a unique use of language and needs to be treated as such.

  127. “Law is a unique use of language…”

    I’m gonna hang on to my skepticism on this proposition I think. Somehow this doesn’t seem likely.

  128. Instead of unique, how about specific?

  129. I don’t rightly know, not being a member of the guild. How about detailing something more of why “[t]he method of interpreting law can’t be the same as that used for interpreting other forms of communications” and we can look at the “how” it differs as well?

  130. I wish bh was here as we seem to be veering into considering “legal language” as almost a computer language or a logical mathematical entity.

    Almost 3 am here. Bedtime.

  131. Ok, Jeff, I think I see what you’re saying. Allow me to use my previous example of machine language, and you tell me if I got your idea down.

    When creating a program, there is the actual writing of code, there is compiling that code to make it executable, and then there is running the program. If I get your meaning of intent, intent would be found in the compilation stage, where you take the high-level source code, and translate it to the low level machine language that tells the machine how to understand it. One would not take a program that was written in BASIC and run it through a compiler for C++.

    When it comes to legislation, the compiler in that case is convention at the time the law was written. Using a later or earlier convention to understand the law will cause the law to function improperly, or even have the opposite effect.

    If the above is accurate, then I agree with you.

  132. JSchuler,

    You are describing textualism, which I also agree with. Jeff is saying this is an incorrect method of interpretation.

    The correct method is intentialism. To use your example, sometimes you may run the source code through the proper compiler and create executable code. But, the code may not perform as intended by the programmer. In this case, you are supposed to check the documentation to determine the intent of the program.

    I think this is what Jeff is saying.

  133. When it comes to law, I think it is up to the author of the law, knowing that convention is used to interpret law, to make sure the author’s intentions are clearly expressed in the words of the law. If the law’s author fails to do this, the author is knowingly forfeiting its intentions to the interpreter.

    Or was his intention to make the law vague enough to ensure many billable hours arguing over its meaning?

  134. B Moe, Not so much with a legislator trying to set up “billable hours” – in the case of those folks, think “lobbying efforts”…

  135. OK, moving this into the IT realm may have lit the bulb. Or not.

    Fred, the problem is that software is documented on two levels. One is the documentation the user sees, which tells him what is supposed to happen when a given operation is performed. If he follows the steps and doesn’t get that result, either he didn’t follow the steps or the writer of the end user documents didn’t communicate the steps correctly.

    The second level can be summed up by “It’s not a bug, it’s a feature.” To actually determine what the creator of the software intended it to do, you have to go back to the requirements document, which the user doesn’t typically see, and that document tells you what the piece of code was intended to do.

    You may disagree with what he did, or how he did it, but you can’t tell the creator, “These were your actual requirements.”

  136. I can think of one reason why the intent of the writers/ratifiers of a law is insufficient. The law is more than just the legislative process; it is in effect a contract between the State and the People. The legislature passes a law (whether over the executive’s veto or not) and thereby offers to the people a proposition: “If you do X, the State will do Y.”

    If you commit murder, we will lock you up for a long time and/or kill you.

    If you hire an illegal alien, we will fine you a certain amount of money.

    If you emit carbon, you’ll pay a certain amount for the privilege.

    I am not a lawyer myself, but did watch The Paper Chase, and recall that Professor Kingsfield said that for a contract to exist, there must be a “meeting of the minds”, wherein one party makes an offer and the other party accepts the offer. If the legislature writes a law using convoluted language that, as a consequence of the specialized use in law has a meaning different from its use by the people who are to obey the law, there cannot be such a meeting.

    This is one of the biggest problems with legislatures dominated by lawyers; the laws they write are unreadable by most of the people expected to arrange their affairs according to the contingencies defined by those laws.

  137. they represent the collective intent of the people

    Really? There’s a collective intent? How does one determine collective intent, at any given point in time?

    Reader poll, I’m guessing.

    I also wonder how well collective intent was represented in the Kelo decision, as an example?

  138. I’m just not seeing SCOTUS as a kind of judicial mood ring, is all I’m saying.

  139. Again, Monster, nothing you are saying troubles intent.

    You are talking about a contract and the procedure for its implementation. I am talking about how language functions.

    Think of it this way: if you are speaking, and you use the word “elide” but meant “conflate,” you’ve made a mistake, and so have failed to signal your intent. What you haven’t done is meant “elide” — even though conventional usage recognizes elide as a term, and even though, in the sentence, elide makes perfect sense to the listener.

    By following convention, the listener will draw from your mistake the wrong meaning — his own, actually, because he is relying on convention to guide him, and so he decodes your sentence by adding his signifieds to your signifiers.

    The listener is not necessarily wrong for reacting to your mistake in the way that he has. In fact, we’d expect as much. But what hasn’t happened is that your meaning changed. You still meant what you meant, even if you signaled it incorrectly. All that has happened is that your mistake on the front end of the speech act has led to a (predictable) mistake on the back end.

    In Frey’s hypothetical, I haven’t blamed the judge for looking at the text in front of him and assuming that the legislature meant something other than it did. I have simply stated the obvious: the legislature, in that example, erred in signaling its intent.

    Ordinarily, a judge would say, okay, well, if you say that was your intent, I believe you — but go amend the law, because you’ve signaled it in such a way that it not only doesn’t signal your intent, but it signals something else entirely, conventionally speaking.

    But in this special case, the question was, if the judge knows that the legislature meant something else, how should he rule. That is to say, if the judge knows what the correct interpretation of the speech act is, is he committed to rule a particular way?

    This is not a linguistic question any longer. It is a question of what the judge thinks he’s doing when he adjudicates. If he KNOWS what the law actually means — and under the conditions of the hypothetical, he isn’t permitted to do anything but rule one way or the other — how should he rule and why?

    If he rules against what he knows to be the proper interpretation of the law, he is being an activist.

    Clarence Thomas said in Lawrence he thought the law was bad law, but he sided with the lawmakers because the law was duly passed and, to his understanding, constitutional. Roberts, too, in a case involving french fries, was it? Upheld what he considered to be bad law.

    The questions we’ve ended up discussing here have to do with ideas of “justice,” not of language — except that it seems many conservatives are willing to adopt faulty linguistic notions in the interest of what they consider to be justice.

    That is, they are willing to support the right kind of judicial activism.

    Me, I keep reiterating that it matters how you get where your are going, in terms of such decisions. The hypothetical raised in this example is, I think we’d most of us agree, highly implausible. And because laws have consequences to those who are subject to them, it makes sense that they are written in such a way that they adhere closely to linguistic convention for optimal clarity.

    None of which changes the fact that the law still means what it meant. The judge’s justification for not wanting to abide that law is, therefore, a question not of language but of procedure. And though he may have all sort of perfectly reasonable rationales for refusing to accept what the legislature meant, he is still nevertheless rewriting the law from a linguistic standpoint, insisting that convention determines meaning.

  140. “nishit lecturing Jeff G and the result of us on this topic, or nearly any other topic, is the rhetorical equivalence of me trying to lecture y’all on thermonuclear quantum applied physics.”

    im NOT lecturing, im trying to understand.
    I agree with Monster, that SCOTUS jurisprudence is not operating in a contextual vacumn, and is driven by representation of the electorate even if it is filtered through several layers of indirects.

    “If he rules against what he knows to be the proper interpretation of the law, he is being an activist.”
    But proper interpretation of the law is dependent on his contractual obligation to the electorate in a representative government.

  141. According to Title 28, Chapter I, Part 453 of the United States Code, each Supreme Court Justice takes the following oath:

    “I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God.”

  142. No, you are not trying to understand. What you do could not possibly be further from “trying to understand” if you were actively trying to. I suppose you could direct us to the portion of the Constitution where the Supreme Court is tasked with representing the will of, or the representation of the electorate. Standard reading of the Constitution suggests just the opposite.

  143. But proper interpretation of the law is dependent on his contractual obligation to the electorate in a representative government.

    On the premise that you really are trying to understand, this is exactly the opposite of the way the laws of this country are set up. The rule of law means that the Justices sole allegiance is to the Constitution and the law, and the law is to be applied equally to all without influence of current fashions or public whims. It was designed to protect the rights of the individual specifically against the tyranny of the majority and mob rule; that way lies oppression, pogroms and genocide.

  144. that way lies oppression, pogroms and genocide.

    BMoe – This is a feature to thingies like nishit, not a bug.

  145. nishit is spewing its idiocy at most of the blogs I normally read. What a great way to start a week. I would rather scoop out my own eyeballs with a rusty spoon that read her ramblings.

  146. But proper interpretation of the law is dependent on his contractual obligation to the electorate in a representative government.

    Proper implementation of the law is dependent on such a contractual obligation as the one discussed by Scalia. In the hypothetical under discussion, proper Implementation would require that the judge tell the legislature to amend the language — to fix their mistake so that predictable mistakes don’t readily occur on the back end of the speech act, convention being what it is.

    In doing so, he is telling them to make their meaning clear and to correct mistakes in signaling intent. He is not telling them that regardless of what they wrote, what they gave him means something other than what they meant — unless he wishes to stipulate that it means something other than what they meant to him (and likely most who read the statute). In which case, he can’t really lay claim to “interpretation,” because he’s already stipulated that those who crafted the statute meant something else by it.

    If you allow a judge to say that it is up to him to decide what a statute means (rather than how it should be implemented, given the way it is signaled) then you are allowing him to do so in every instance that he can conceivably get away with doing so. His pointing out that the legislature’s intent is not clear as signaled is different from his assuming control over the meaning of a text that has a meaning already attached to it.

  147. “I have simply stated the obvious: the legislature, in that example, erred in signaling its intent.”

    Jeff, this is the issue you haven’t actually addressed here: How can the legislature intend anything, when it is not an individual? You can say the staffers who worked on the legislation had intent, you can say that the individual legislators, when they voted on the law, had intent. But how can you merge all of those into this singular whole called the legislature, and say that the whole has intent?

    And if you do not say that, but say that it is the intent of the staffers who wrote the law which matters, does it really make sense to give the intent of staffers any consideration in attempting to understand the law? Should unelected grunts have their intent given force of law? If not, isn’t intent then completely irrelevant to law?

  148. “Should unelected grunts have their intent given force of law?”

    What differs between congressional staffers and citizens?

  149. “What differs between congressional staffers and citizens?”

    Nothing. So why should they be privileged in determining the meaning of the law over all other citizens?

  150. They aren’t. The point is that citizens have intent which is made to be law.

    Take the attack on the World Trade Center, for example. The citizens understand it as an act of war on the United States and intend to prosecute that war against the perpetrators. Their intent is then made into law as an authorization to use force. How is this intent so, if no intent is so in another law?

  151. But in this special case, the question was, if the judge knows that the legislature meant something else, how should he rule. That is to say, if the judge knows what the correct interpretation of the speech act is, is he committed to rule a particular way?

    This is not a linguistic question any longer. It is a question of what the judge thinks he’s doing when he adjudicates. If he KNOWS what the law actually means — and under the conditions of the hypothetical, he isn’t permitted to do anything but rule one way or the other — how should he rule and why?

    Of course he’d have to rule for the defendant because 1. He has not violated the law as written and 2. He has no way of knowing that the Legislature meant something else but screwed up when they signaled their intent. The defendant has not violated the law.

    Again, the law is a sticky place to discuss intentionalism, which is certainly why Patterico wants to do it, because it is non-standard communication requiring that there be a universally agreed upon meaning, and it is incumbent on the authors to use standard conventions to relate that meaning. When that doesn’t happen, trouble ensues.

  152. Perhaps it is too obvious to merit setting down, but the contrapositive obtains as well. Why else the just uproar over the passage of ObamaCare? The citizens in greater numbers made plain their intent to oppose passage, and the congress, in its unwisdom and tyranny, passed the damned thing despite the clear intent of the majority.

  153. Legal interpretation is part of a system of rules. If both the author and interpreter follow the rules, then the meaning of the author will be implemented into law. If the author violates the rules (e.g. not following conventions) the author’s meaning won’t be implemented into law. If the interpreter doesn’t follow the rules (e.g. Living Constitution) the interpreter’s meaning will be implemented into law–judicial activism.

    The system is designed–rightly or wrongly–so that laws can be implemented contrary to the author’s intent. It isn’t always activism when this happens.

  154. How can the legislature intend anything, when it is not an individual?

    Which also says that the whole of the Constitution is without intent.

    The intent is seen by reviewing the writings, speeches, actions, which led to the law/Constitution being enacted. In the case of the Constitution that would be, a least, the Declaration of Independence, The Federalist Papers, Madison’s Notes, etc. In the case of a law there would be a similar trail of papers and events leading to the enactment of the statute.

  155. How can we have elections, if a group of people can’t have intent? Or a jury verdict? Or order a pizza?

  156. How can the legislature intend anything, when it is not an individual?

    Why do you believe intent has to be an individual thing?

    Individual intentions will be compromised on or not and will end in the process of ratification — which stands as a final establishment of the legislature’s intent.

    Legal interpretation is part of a system of rules. If both the author and interpreter follow the rules, then the meaning of the author will be implemented into law. If the author violates the rules (e.g. not following conventions) the author’s meaning won’t be implemented into law. If the interpreter doesn’t follow the rules (e.g. Living Constitution) the interpreter’s meaning will be implemented into law–judicial activism.

    The system is designed–rightly or wrongly–so that laws can be implemented contrary to the author’s intent. It isn’t always activism when this happens.

    It is activism if the judge dismisses as irrelevant the author’s intent. It is not activism if the judge believes that what he is doing is interpreting what he believes the legislature meant.

    Of course he’d have to rule for the defendant because 1. He has not violated the law as written and 2. He has no way of knowing that the Legislature meant something else but screwed up when they signaled their intent. The defendant has not violated the law.

    Well, the defendent has violated the law, but he had no way of knowing what the law was — nor would any one else following legal convention who wasn’t privy to the intent of the legislature. So on those grounds, though the defendent violated the law, he did so because the legislature did a poor job of signaling what they meant.

    The judge, therefore, can rule for the defendant while still not violating linguistic imperatives.

    Again, the law is a sticky place to discuss intentionalism, which is certainly why Patterico wants to do it, because it is non-standard communication requiring that there be a universally agreed upon meaning, and it is incumbent on the authors to use standard conventions to relate that meaning. When that doesn’t happen, trouble ensues.

    Again, this has to do with consequences, not with linguistics. A guild’s decision to dismiss as unworkable non-conventional language is a convenience designed for a purpose. It doesn’t change how language functions. It merely says that in order to get things done, in our field we will pretend that it does function this way.

    My point in this post is that one can reach that same conclusion without turning the exception into the rule.

    You are correct, Pablo, that the reason Frey wants to use law is that it muddies the waters. My response has been to show that you need not pretend that a text can stand alone outside / beyond any intent and “say” anything. Intent is always determinative, even if it exhibits itself as an intent to privilege convention.

  157. “2. He has no way of knowing that the Legislature meant something else but screwed up when they signaled their intent. The defendant has not violated the law.”

    That “[h]e has no way of knowing…” seems to me a bit of a sticky problem, though one bound to the necessary vagary of our hypotheticals. So if he doesn’t know, the judge won’t hold his ignorance against him. What if though, he (the defendant) does know of the true intent of the legislature?

    The judge knows what the legislature intended. The press can be presumed to have reported what the legislature intended as the debates took place. Nothing necessary in particular prevents the defendant from knowing what the legislature intended, since the debate was a fully public affair. And in the posited case that he does know, should the judge (or we, for that matter) take the attitude that he defers to a presupposed ignorance on the part of the defendant rather than repair to the defendants actual knowledge? Say the defendant did in fact know what the legislature intended and acted on his knowledge of the disparity between their intent ($10,000) and the error codified ($100,000) in order to find material gain in an expectation of a deferral to ignorance (and to stiffen the case, spouted off to that effect to his neighbor, who is available to testify)? Anyhow, it seems to me the thing can get pretty twisty (in respect of doing justice) in short order, but that’s one of the features of such hypotheticals as opposed to actual cases.

  158. What if though, he (the defendant) does know of the true intent of the legislature?

    Number 1 still holds. That said, how does he know? Common knowledge or special knowledge? And even if it is common knowledge, would you convict?

  159. He knows the same way anyone knows, he watched C-Span. ;-)

    And if I believed he’s scamming based on his knowledge, I’d convict in a heartbeat. Why not?

  160. “How is this intent so, if no intent is so in another law?”

    The issue is not can a bunch of people intend to make a law. It is to what extent their intent can be reduced to a singularity.

    “Which also says that the whole of the Constitution is without intent.”

    No, the Constitutional Convention is without intent. The individual members of the Constitutional Convention, however, are with intent. You talk about reading the Federalist Papers, well, read the anti-Federalist Papers (these are the fine people that gave us the Bill of Rights). The anti-Federalists understood that the intention of the Constitutional Convention to create a federal government that did not infringe on the rights of its citizens was not enough. There needed to be explicit, plain-language guarantees. Honestly, read the debate over the Constitution. It’s fascinating how often the Federalist side says “Trust me, it’ll be great!” “Do you think such fine, upstanding people like Ben Franklin and George Washington would support the Constitution as-is if it weren’t wonderful!” In the end, they had to change it, as they LOST the argument that their intent mattered. The anti-Federalists were only defeated by the Federalists altering the document to address nearly every point the anti-Federalists made, which is more like victory.

    So, no, groups of people cannot have intent, only individuals. The alternative is to embrace Rousseau’s idea of the General Will, which puts you with the Jacobins, inspiration for fascists, socialists, and communists alike.

  161. Well, the defendent has violated the law, but he had no way of knowing what the law was — nor would any one else following legal convention who wasn’t privy to the intent of the legislature.

    No, he hasn’t. That’s the thing about law, and why it must be decoded according to standard conventions. The author may have meant one thing and said another, it happens all the time. But the law is the one area in which society has to agree on a single interpretation, and it may not reflect the intent of the author if the author has failed to write according to convention.

    The intent is what the author meant. The law is what we all agree it is. They’re not the same thing, anymore than language is law.

  162. “It is activism if the judge dismisses as irrelevant the author’s intent. It is not activism if the judge believes that what he is doing is interpreting what he believes the legislature meant.”

    Your analysis is based on the assumption that our system of laws privileges the author’s intent. I disagree. Our system of laws considers an interpretation correct when the law as written has been interpreted using the established method of legal interpretation. If the law was written “properly”, the author’s intent will (should?) be privileged. Otherwise, the author’s intent will not be privileged. The interpretation is still correct and not activist.

    You also assume that a guild arbitrarily set the rules of interpretation. Again, I disagree. The country, as a whole, directly or indirectly, over its history has determined how laws are interpreted. Using conventions is part of the established rules.

  163. “Well, the defendent has violated the law, but he had no way of knowing what the law was — nor would any one else following legal convention who wasn’t privy to the intent of the legislature. So on those grounds, though the defendent violated the law, he did so because the legislature did a poor job of signaling what they meant.

    The judge, therefore, can rule for the defendant while still not violating linguistic imperatives.”

    And this is where it is revealed what a terrible mess your idea of intent is in the legal system, because in your argument, the judge can as easily rule against the defendant as for. So, you have just made the law arbitrary.

  164. So the Federalists were a group, and the Anti-Federalists were a group, and so there is still no intent inherent in either the Constitution or the Bill of Rights either singularly or as a whole?

    It’s fascinating how often the Federalist side says “Trust me, it’ll be great!” “Do you think such fine, upstanding people like Ben Franklin and George Washington would support the Constitution as-is if it weren’t wonderful!”

    How does a group “say” anything if it has no intent?

  165. Well played, geoffb. But it’s only my inarticulate language. I intended to refer to individual anti-Federalists, and individual Federalists. I shall endeavor to refine my words so that it better conveys my intent.

  166. I am often quite in articulate. Ask anyone.

  167. As in the last where I put a space where it was not supposed to be.

  168. “Justices sole allegiance is to the Constitution and the law,”

    but the justice receives his appointment through the will of the people, the electorate, that elected both the president and the congress that appointed him.
    his INTENT has been pre-selected since it is shaped by the perception of his jurisprudence.
    the Founders and Framers built for a maintained tension between conservatives and liberals.

    Federalism is unworkable in an ex-slave nation.
    Federalism died when the nation’s government had to intervene to deliver citizen rights and citizen welfare to blacks in the south.
    And the death of federalism destroyed the existing social cohesion model, the social compact.
    I don’t see a way that federalism could ever work in America again.
    Local government would simply devolve to distributed jesuslands and yearning-for-zions in the South, while on the coasts and in the North conservative christians would be marginalized even more radically than they are now, because local governments would pass laws about racist speech and hate crimes.

  169. And Dr. Manzi’s argument was that people would just move to a local environment that suited them.
    Economically unfeasible, and the North and the Coasts hold the national government and the best universities.
    No, i think federalism is dead.

  170. Nothing quite beats having a bigot close at hand to examine in order to get a sense of the thing — bigotry that is — does it?

  171. I thought she in proving the adage from an old “Who” song that “insanity is fun”.

  172. It’s a veritable Eyjafjallajokull of bigotry, that’s for sure.

  173. “but the justice receives his appointment through the will of the people, the electorate, that elected both the president and the congress that appointed him.”

    Nonsense. Let’s see, we get to get a total of four votes in regards to the federal government: One for President, one for our representative, and one each for our Senators. Somehow, we are to believe that these four votes encapsulates our will as regards to:
    -Supreme Court Nominees
    -Income tax
    -Tariffs
    -Environmental Policy
    -Banking regulations
    -Roads
    -Postal Hours
    -Foreign aid
    -Military
    -Boarder Security
    -Energy Policy
    -Space Exploration
    -Insurance regulation
    -Education
    -Labor policy
    -Gay Marriage
    -Campaign Contributions
    -Internet Regulation
    etc. etc., and all the nuances underneath.

    Really? What percentage of Americans agree on all those things? On half? On a quarter? On a tenth?

    At best, the “will of people,” assuming such a thing exists, is found in two or three issues every couple years. Everything else is purely the will of those in the halls of power. All they need do is engineer a major legislative controversy, and as long as they land on the right side of it for their electorate, they have a blank check for the rest.

    It’s not a matter of federalism working in America, it’s a matter of federalism being the ONLY LEGITIMATE form of government for 300,000,000 people. If it can’t be done, then the Union should be dissolved. Been a fun run while it lasted.

  174. He knows the same way anyone knows, he watched C-Span. ;-)

    And if I believed he’s scamming based on his knowledge, I’d convict in a heartbeat. Why not?

    And how many of us watch CSPAN? It isn’t scamming if you’re acting within the law. I could not convict someone who is following what the law says, and certainly not based on the pleadings of those who are telling me “We really meant to say something else, but we screwed it up.” That you would is interesting.

  175. Jeez Pablo, you didn’t read:

    Say the defendant did in fact know what the legislature intended and acted on his knowledge of the disparity between their intent ($10,000) and the error codified ($100,000) in order to find material gain in an expectation of a deferral to ignorance (and to stiffen the case, spouted off to that effect to his neighbor, who is available to testify)?

  176. Nishi understands federalism about as well as she understands “Broussard” ramjets.

  177. Everyone point at the griefer bigot across teh intartubez!

  178. No, I did read that. And I’d tell the Legislature that they need to fix the law because it doesn’t say what they meant it to say.

    Suppose they wrote the law to say that the age of consent is 17 but they really meant to make it 18. Even if a guy knows that, he isn’t a statutory rapist when he diddles a 17 year old. Juries take the law into deliberations, not legislative intent.

  179. the North and the Coasts hold the national government

    Washington, D.C. is south of the Mason-Dixon Line, genius.

  180. the North and the Coasts hold the national government

    And the rest of the country pays the bills.  You are about to find which is more important.

  181. When Nishi is agreeing with me, I have to check myself…
    I agree with Monster, that SCOTUS jurisprudence is not operating in a contextual vacuum, and is driven by representation of the electorate even if it is filtered through several layers of indirects.No, it has nothing to do with “representation of the electorate”; it is about the people whose behavior the law is to condition.

    There is an entirely different set of criteria for, say, going after Limbaugh over “I hope he fails” than there is for evaluating a law. When a person speaks, his intent is the meaning.

    But when the law speaks, it influences behavior. It is therefore not the intent, but the effect of the law that is important. The wording of the law as interpreted by the people whose behavior is to be modified is therefore more important. This is part of the right to trial by jury enshrined in our Constitution: professional law people like Pat don’t get to use trick language to trap us in technicalities. In order for the law to punish us for behaving “badly” it must clearly communicate to us what that standard of behavior is.

    This is not to say that the “reasonable person” interpretation of law is somehow “right”; it is to say that despite whatever the good intentions of legislators may be, the law’s effect is based on what the people deciding whether or not to obey that law think it says. This is why there are often “chilling effects” from vaguely-worded laws that allow much in the way of regulatory or prosecutorial discretion; if a law is worded so that a reasonable person fears he will be a target of a persecutor, then the effect of the law is as if the legislators had worded the law that way.

  182. I still want a damn preview button

  183. if a law is worded so that a reasonable person fears he will be a target of a persecutor, then the effect of the law is as if the legislators had worded the law that way.

    Why would this not be the intent of the legislature by writing it in that way? This was some of what I was trying to get across in #124 but it was late at night.

  184. Oh, and persecutor does fit in this example though I assume you did not wish that word.

  185. Actually I did intend “persecutor”

  186. LIS, I’m not a lawyer, but I’m told that there is a legal doctrine that goes something like this: when one party to a contract is clearly its author, any ambiguity in the meaning of the contract is to be construed against the interest of the author (and therefore in favor of the interest of the non-author party). The idea is that the person doing the writing should not have any incentive to be ambiguous, fail to ever really achieve any “meeting of the minds” and thereby contend that the other party agreed to terms that in fact they did not.

    It also has some of the same flavor as “Johnny cut the cake in half and Mary pick a half” as the mechanism that ensures Johnny will cut it fairly, because he knows that if he doesn’t, he’s going to get the literal short end of the deal.

    When the legislature writes the contract, “If you do X, the government will do Y”, and we have two different ways to interpret what X and Y are, it is therefore reasonable by contra proferentem to privilege our interpretation.

    But again, this is not the same question as “what did they mean”.

  187. There is an incentive for the Legislative branch to be ambiguous and to, by being so, allow another, unelected person[s] to decide what the actual effect of the law will be on all.

    The ambiguity gives some election day wiggle room for each legislator. Each can then claim that what they voted for was the thing that their constituents desire but that those damn bureaucrats or judges are not seeing it that way. While all the time knowing quite well how the particular people implementing the law will do so.

    Yes it is stupid. I call it the “I was stupid” defense which is called upon when the alternative is the “I was evil” reality. This whole method is a Democrat specialty during my lifetime.

  188. A piece at NRO on judicial supremacy, from a special issue entitled What Happened to the Constitution?

  189. Just got back to this thread.

    My profession uses words in certain ways. My profession interprets language in certain ways.

    To understand what a written American statute means, to understand what a published American court decision means, you must interpret those according to the conventions the American legal profession has. And no one elses’ conventions.

    Don’t like that? Then call up the shade of Lord Coke and rant at it.

  190. No, i think federalism is dead.

    Nishi is letting her wishful thinking control her texting fingers again.

    Or still.

  191. “If it can’t be done, then the Union should be dissolved”

    lawl, Andy Jackson would have blown a hole in your guts.
    Im truly sorry, but all I see here is a big bunch of petulant blowhards and WATBs throwing a big pouty tantrum over cultural and demographic evolution.
    You can’t stop evolution.
    Trying to change what is happening with words and language is like trying to channel a glacier with a snowfence made out of toothpicks.

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  194. Your analysis is based on the assumption that our system of laws privileges the author’s intent. I disagree.

    No. My analysis is based on the fact that intent is what gives a text its meaning.

    If you want to say that in law, that intent is the judge’s — and he gets to base it on his own use of convention regardless of the intent of those who wrote it — then you are saying that, when it comes to law, the judge’s text takes precedence over interpretation.

    It’s really as simple as that.

    And I don’t much mind, so long as you know what it is you are doing — and what it is you are allowing.

    The performative aspect of law — it enacts something — needs to be taken into account when deciding on a method for deciding what it means for the purpose of public consumption.

    But that doesn’t change the linguistic fact that, to honor convention over intent — where intent is supposedly not considered — you are simply honoring the intent of the receiver and not the intent of the author.

    And there are consequences — in terms of power relations within the scope of a speech act — that come with such a decision.

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  196. In my opinion the post contains a lot of accurate information, but leads (understandably) to an erroneous conclusions.

    The first error is assigning to the reader the onus of determining intent, rather than the writer for accurately conveying the intent.

    The second error is in conflating interpretation of “plain text” with interpretation of “context.”

    As someone who is multi-lingual I tend to see this as a broader issue of language and dialect, meaning that even though the specific words may be derived from the English language, the correct context for the meaning of the plain text can be conveyed and understood if one views the dialect as being “legalese” so to speak. Granted, this requires both the communicator and recipient to use the same standard (syntax). The result is similar to a computer program which uses a very specific syntax to achieve a desired result. If a programmer (the legislature in this analogy) uses the wrong syntax or makes a typo, the computer (our judge), since it is not able to alter the code itself, is required to execute the code as-is.

  197. The first error is assigning to the reader the onus of determining intent, rather than the writer for accurately conveying the intent.

    I haven’t done so. I’ve simply noted that meaning resides where it resides. Responsibility for getting your intentions across rely on a number of factors — the use of convention being one of them.

    The obverse, however, is that, when you give the reader (or convention) the power to determine meaning, meaning then becomes whatever you can make convention say, without having to worry about what the author meant.

    The second error is in conflating interpretation of “plain text” with interpretation of “context.”

    As someone who is multi-lingual I tend to see this as a broader issue of language and dialect, meaning that even though the specific words may be derived from the English language, the correct context for the meaning of the plain text can be conveyed and understood if one views the dialect as being “legalese” so to speak. Granted, this requires both the communicator and recipient to use the same standard (syntax). The result is similar to a computer program which uses a very specific syntax to achieve a desired result. If a programmer (the legislature in this analogy) uses the wrong syntax or makes a typo, the computer (our judge), since it is not able to alter the code itself, is required to execute the code as-is.

    This analogy was discussed at length in the most recent thread.

    Legalese as a kind of guild-specific code is still intended language. Privileging the use of convention as the locus for meaning is a convenient fiction that the law profession seems to embrace.

    But they aren’t doing what they think they are doing, which is the point of my discussion. Because such a maneuver linguistically merely replaces intent from the original intender to the supposed interpreter. And it makes no sense to lay claim to interpreting when what you are doing is writing your own new text.

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