Provocateurism 14: Originalism vs Textualism, continued
Patrick Frey’s latest attempt to address intentionalism as it functions in the realm of legal interpretation again falls short — first, because it miscasts my positions, and second, because it draws its conclusions from the very faulty premises it posits.
Goldstein argues that there is a distinction between what a law “means” and what a judge does with that knowledge. However, for Goldstein, judges should always enforce laws according to legislative intent, rather than how reasonable people would interpret the text on its own. He argues that, in the hypothetical, the judge should interpret the written text “$100,000? as meaning “$10,000? because that is what the legislature meant — and allowing the judge to interpret the term any other way places the power of lawmaking in the judge’s hands.
But of course, nowhere did I argue that a judge “should always enforce laws according to legislative intent.” Instead, what I argued was that in order to claim to be interpreting the law in the first place, a judge has to appeal to the intent of those who wrote it (and so created the signs the very act of “interpreting” presupposes must exist). In Frey’s (imaginative, but frankly outlandish) hypothetical, the judge is certain that the lawmakers in question meant what they meant. The dilemma as posited, therefore, is one in which the legislature has failed to signal its intent in a way the law relies upon (and in fact, signaled something else entirely, going by the conventional standards of legal language). And the question then became how should a judge rule.
But “enforcement,” I noted, is a question not of linguistics but of justice. Constrained by the provisions of Frey’s hypothetical — the judge knows the legislators’ intent, and recognizes that they have failed to signal that intent in a way that is consonant with the conventions of legal language — for the judge to rule that the law means something other than what the legislators meant by it is for the judge to replace his intent with theirs. Or, to put it another way, he’d be replacing their text with his own, knowing full well that he is doing so — and using convention as his rationale for privileging his won intent over theirs.
This is activism. Whether it is “good” activism or not is a value judgment — not a linguistic question.
And that’s because from a legal perspective, such a maneuver seems best, in this unusual case, to favor “fairness” or “justice.” But from a semiotic perspective, it makes no sense to lay claim to performing an “interpretation” of a speech act when what you’ve decided to do is take the marks before you, (knowingly) ignore how they were intended, and add your own meaning to them.
In this case, the judge has decided that the legislature’s failure to signal its intent properly problematizes the idea of justice. But what he hasn’t done is say that the legislation doesn’t mean what it means — except to point out that most “reasonable” people likely won’t see it that way because of problems with the way intent was signaled.
Which is only to say that the judge recognizes that reasonable people will likely be misled by intent poorly realized.
ObamaCare does not prevent insurance companies from denying coverage to children based on their pre-existing conditions. But (here is the hypothetical) what if every legislator who voted to pass ObamaCare actually intended to prevent insurance companies from denying coverage to children based on pre-existing conditions? (Again, it is a core assumption of the hypothetical that this was indeed the legislators’ intent. It is not a post hoc argument they are making; your working assumption is that they actually did intent to include this concept in the law.)
Under Goldstein’s argument, if we assume that this was the intent of the legislators who voted for ObamaCare, then it doesn’t matter what words are in the statute — they mean whatever the legislators intended them to mean. If the legislators intended the law to include a prohibition against denying coverage to children based on pre-existing conditions, then the law does contain that prohibition — no matter how the text reads.
It wouldn’t matter that the legislators couldn’t point to specific language that a reasonable person would read as including this prohibition. It wouldn’t matter even if opponents could point to specific language that a reasonable person would read as saying the exact opposite of what the legislators’ intent was.
As long as we assume it to be the case that every legislator intended to pass such a prohibition, then under Goldstein’s view, their intent controls.
Yes. Their intent “controls” as to what the text actually means, if the conditions in Frey’s (again, completely unlikely) hypothetical hold. But just because something means what it means doesn’t suggest that it will necessarily be signaled in a way where a “reasonable” reader would readily (or even conceivably) be able to ascertain that meaning.
People make mistakes all the time. But a failure to signal what you mean to others isn’t a failure to mean. It is merely a failure to get others to understand what it is you meant.
Again, Frey’s hypotheticals are designed to give convention every opportunity to obtain as the locus of meaning. But language doesn’t work that way. Convention is merely an hermeneutic short cut we have developed to help divine intent. In this latest example, Obamacare still means what it means — to those who wrote it and, later, to those who try to interpret it as receivers of the speech act. The goal in interpretation is reconstruct the intent of the utterance. If the language of a speech act is such that the original intent cannot — in good faith — be reconstructed on the receiver’s end, that has not problematized intentionalism; it has simply highlighted the flaw in a system that relies on arbitrary representation, namely, the relationship between signifier and signified.
But none of that is to say, as Frey contends, that “it wouldn’t matter that the legislators couldn’t point to specific language that a reasonable person would read as including this prohibition,” or that “it wouldn’t matter even if opponents could point to specific language that a reasonable person would read as saying the exact opposite of what the legislators’ intent was.” Of course it matters. Because under those conditions, you’d be hard pressed to get anyone to believe that you intended what you intended — and you have virtually no chance of having your meaning properly reconstructed. Failure to signal what you intend has consequences.
What it doesn’t do, however, is change your meaning — or allow others to tell you what that meaning is. It does, however, go a long way toward explaining why they were unable to reconstruct that meaning — and why they’ve replaced that meaning with what it means to them.
In examples such as the ones Frey provides, it is easy to overlook the dangers in allowing “convention” to act as the locus of meaning — whereby the intent of the utterer is dismissed as irrelevant, or else the intent of receivers is to use “convention” as a justification to create their own texts and ascribe that text back to utterer. But the danger is very real when we don’t recognize what it is we are doing when we claim to be interpreting – and when we argue that a person’s failure to properly signal what he means is grounds for us to tell him he meant something else entirely, we have opened the (theoretical door) to all sort of misuses of language.
And no hypothetical — however loaded — will change that fact.