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.
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.