Textualism and originalism, a follow-up
A number of interesting questions arose overnight concerning intentionalism as it obtains in the realm of legal interpretation, a few of which I’ll try to address here. This post was originally written as a comment, so allow for some haste of thought.
Still, as a way to spur discussion further, my responses my prove useful — particularly inasmuch as I’ve tried to circle back to the linguistic questions that provide the impetus for the legal questions raised as a result.
First, Fred C Dobbs writes
Here is my question: If a textualist like Scalia interprets a law using the conventions and limits himself to the text of the law, why should he not conclude that his interpretation represents the intent of the author?
How can any interpreter know if his interpretation is true to the intent of the author?
To take the latter first, the answer is, no one can ever know for certain. Because, to bring back my irony example, it is always possible in theory that a text is presented completely ironically, such that it’s author means precisely the opposite of what conventions tell us the text says. An interesting example would be, say, the instructions for putting together an IKEA bookshelf. If, after you read and interpret, you have a perfectly put together bookshelf, you will (naturally) assume you have gauged the manual writer’s intent correctly and so interpreted his instructions perfectly. That is, you have understood precisely what he meant.
But imagine that the manual writer was being ironic, and every sign actually meant — to him — its opposite. You will have interpreted what he wrote in good faith — assuming that he was using the conventions of language and context (convention tells you that rarely are shelving manuals written in anything other than straightforward, simple language), and the fact that you came away with the shelf, which you assumed to be the purpose of the manual, would further convince you that you’d interpreted properly.
But of course, in reality — from a linguistic perspective — though you followed all the rules for interpretation (you assumed what you were reading was language, and so intended; you paid attention to convention, both for plain meaning of terms and for the general purpose of manuals of the type you were engaging; you ‘checked your work’ at each stage by seeming to match the manual’s directions with your results, etc), you interpreted incorrectly: the manual writer meant what he meant.
Now, you have no way of knowing this, most likely; and the fact that you got what you want out of the engagement with the manual leaves you content. But in this (highly unusual) instance, the fact is, though you’ve done everything correctly as an interpreter, you didn’t correctly interpret what the manual writer meant.
Now, why does that matter?
It matters because, in an infuriating way, it illustrates how language functions in terms of where meaning resides, how meanings are transferred, and what happens during the various stages of interpreting a speech act. To wit: the manual writer turned signifiers into signs through the process of adding signifieds. The resultant text is a document of his intent, his meaning fixed at the moment of signification. If, in this example, we now know that his signs mean precisely the opposite of what convention tells us they mean, we realize that we missed the writer’s meaning — that we interpreted him incorrectly.
This is potential failing in all communication based around arbitrary signifier/signified relationships.
The problem comes, though, when we notice the failing and try to “fix” the issue by taking intent out of the relationship. And that’s where I’ve tended to concentrate my attentions, because the fix — while it may certainly feel right — is linguistically incoherent, and the ramifications for accepting the assumptions that “allow” for the fix are far reaching and dangerous.
So to get back to your original question, “If a textualist like Scalia interprets a law using the conventions and limits himself to the text of the law, why should he not conclude that his interpretation represents the intent of the author?”
If Scalia concluded such — and used as a rule that his interpretations best matched what he believed to be the intent of the author — he would be acknowledging the intentionalist that he is, and that we all are. As I’ve said several times now, intentionalism just is — meaning problems only arise when people like Scalia, or the New Critics, or Derrida, or De Man, or Gadamer, etc., try to will their way out of the relationship whereby original intent is the locus of meaning in a speech act if what we are after is to interpret that communication. To do this — to assert their preeminence as readers in the relationship between author and receiver — they have come up with a number of places to privilege the anchor of meaning other than with the original author: convention, code, reader response, dialogical webs, historical moment, etc.
But try as they might, they cannot make language function in the way they describe.
If we’re all intentionalists, then intentionalism doesn’t mean anything. My understanding was that intentionalism meant interpretation to determine the original intent. Not any intent. After all, any interpretation has intent. I thought intentionalism was concerned with orginal intent only.
“Interpretation” of a speech act presupposes intent; and that’s the point: any interpretation has intent, as you say; but not everyone recognizes this, and as a result, they don’t believe they are privileging intent when in fact they are. Whose intent they are privileging, however, is the important observation. If they are privileging the author’s intent, they are interpreting. If they are privileging their own intent, they are not.
Given that in both cases the receiver lays claim to interpretation, I disagree with the conclusion you draw that, all of us being intentionalists, “then intentionalism doesn’t mean anything.” In fact, it means everything. The problem is not with intentionalism. It is with those who believe they’ve been able to escape it.
Scalia, worried about “secret meanings” (to go back to my example of the shelving, the author’s insidious “irony” has problematized our ability to interpret him correctly — though we don’t much care, having gotten what we wanted out of the engagement), wants to say that, because authors can mean what they don’t appear to mean, we are justified in dismissing intent as a function of intepretation.
But of course, Scalia never does dismiss intent. He simply replaces the emphases of intent, and privileges his own agency over that of the author(s).
Simply by virtue of accepting that what he’s charged with interpreting is language, Scalia is accepting that he is dealing with a text, with signs, signifiers that have been signified. Were he not, he’d have no reason to try to “interpret” to begin with, because there would be nothing to interpret: signifiers are marks or sound forms; they don’t “mean” anymore than do bird tracks that resemble language, or cloud formations that resemble horny lambs. And so from the outset — and despite his protestations to the contrary — Scalia has marked himself as an intentionalist. And that’s because he has no choice.
Again. Intentionalism just is. Problems arise only when we pretend we can interpret outside that truism.
Now, Scalia — knowing as he does the potential pitfalls of language, recognizes that, at least potentially, lawmakers could have given him a document that resembles straightforward and conventional legal language, but attached to it might be some insidious secret meaning that is not readily apparent from a conventional engagement with the signs during the course of normal interpretation. That is, Scalia recognizes that the lawmakers may have hidden their intent in language that doesn’t readily make that intent apparent — and yet there it lies, this intent, like soldiers inside a Trojan horse ready to unleash fury once the law has been accepted into usage.
So Scalia’s response is to say that, to avoid such concerns, intent is no longer to be considered — that the “plain text” of a statute, as judged by convention, is what the law means.
But he’s wrong. What the law means is what it means. And you can’t lay claim to interpreting law if you aren’t interpreting it for what its writers meant.
Where people seem to get hung up, though, is on the belief that what a law means — no matter how that meaning is expressed — is determinative for how we must interpret it.
But again, the man putting together the shelving would have virtually no way of knowing that he was interpreting incorrectly. And that’s because the writer subverted a number of conventions, provided no ironic or parodic cues, was unnamed (and so made intertextual considerations impossible), and — most importantly to the man who bought the shelves — what the writer intended didn’t much matter in the end because the man got his shelving. And so even though his interpretation was wrong, it was still useful.
More, had the original author really wanted his intentions known, he would have been more careful in signaling them. In nearly every case, the best way to ensure that your intent is read is to follow convention. And that’s because convention is a second order system “designed” to help us better divine intent. A failure to follow convention can cause all sorts of problems for receivers who, in good faith, try to decode your speech act. But what a failure to follow convention doesn’t do is change your meaning.
Which is why when I noted in an earlier discussion that textualists and originalists who appeal to intent will most often come to the same reading of a statute, I was noting that, for the most part, what matters is what we think we are doing when we interpret, because convention — as a rule — is a highly functional guide for divining intent.
But what convention isn’t is the locus of meaning. Because to say that is to say that, regardless of what a person meant when he crafted a communication he desired to have interpreted, his meaning rests with the way signifiers are most typically signified. That is, his meaning rests with convention — or general group usage of signifiers — and not with his own desire to express meaning.
And this is not only wrong but dangerous. First, if meaning did rest with convention, convention would remain static. How could convention change, after all, if it prevented any meaning-making to exist outside of its own parameters for determining meaning?
Second, by taking meaning away from the intentional actor and giving it over to convention, you are taking meaning away from the individual and giving it over to the consensus of a community or culture (convention being nothing more than that consensus meaning spread out and institutionalized). In that way, you are allowing a community or culture to determine what it is an individual means — and so taking away that individual’s autonomy and demanding he surrender his own will to group generalizations.
None of which is a repudiation of intentionalism. Instead, it is nothing more than a transfer of whose intent is privileged disguised as a bracketing of intent.
Because to say that the author doesn’t mean what he meant — that what his “plain text” means is what “convention” tells us it means — is to say that our intent to privilege group generalizations about signification trumps your ability to signify. Or, to put it more bluntly, our intent to attach to your signifiers what we as a group want to see there supplants your intent to signify as you have.
There is a difference — and it is an important one — between demanding that writers of law follow convention as closely as possible to ensure the most accurate interpretations of their intent; and maintaining that what the writer intended doesn’t matter, because convention is the locus of meaning.
Scalia and others push for the latter in order to get the former. But in doing so, they open up avenues that legitimize an idea of “interpretation” that is not interpretation at all.
To look at someone’s intended text — his signs — and try to decode them as part of a speech act is to interpret. To look at someone’s signs, remove the intent that turned them into signs in the first place, and then react to signifiers, which you then resignify solely based on convention, is to write your own signs — to create your own text.
And at that point, it is your intent that you have privileged, and your meaning that is the endproduct of what you have called “interpretation,” but which is no such thing.
My argument is, how you get there matters. To privilege your own intent is to rob others of their meaning. And the consequences of such a maneuver are far reaching, and go to the heart of the will to power / consensus meaning paradigm I’ve been at pains to dissect here over the years.