May 19, 2010

a few final words on the intentionalism / textualism divide (UPDATED)

[updated from 5/17 - ed.]

First, let’s take this, from Antonin Scalia, and break it down:

If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

Pay careful attention to the assertions here. If you are a textualist (something I maintain exists only as a second order description of what certain intentionalists give themselves permission to do with signifiers and their own intent), Scalia says, you don’t care about intent, but are instead interested only in what you call “words.” But what comes to make what you’re engaging with count as “words” in the first place? That is, what is a “word” to a textualist?

To wit: not only is it possible for marks that aren’t words to look just like words (egret scratchings in the sand, the output of millions of monkeys on millions of typewriters producing, by random selection, “pass the salt,” etc.), but in fact it is this very possibility that creates the distinction between what we consider words and what we consider accidental (because unintended) facsimiles of words.

A simple way to illustrate this: Were we to purchase several editions of, say, a Shakespeare play, would we argue that because the play is printed in different typefaces and different sized fonts in the various editions that the meaning of Shakespeare’s text has been altered in each case? Of course not. And that’s because we recognize that a cosmetic change to the signifiers — so long as we can still make out the marks clearly — doesn’t fundamentally change the relationship between the signifier and the signified we presume to be operative. Or, put more simply, we believe that the signs are still the same in each edition — that what Shakespeare meant to signify doesn’t change from reproduction to reproduction. And it is signs we care about when engaging a text.

For Scalia, “words” are signs. After all, he wouldn’t argue that the text of a statute printed on a computer screen says something different than the text of a statute that appears on paper merely because the fonts have changed. And so when he maintains that he “doesn’t care” about intent, he is mistaken: he has already assumed intent, because otherwise, he couldn’t see signs as signs, or (to borrow his terminology) words as words. So he is an intentionalist, as are we all. Looked at from the perspective of language, then, Scalia’s argument is essentially this: “I don’t care about words; I care about words.” Which, good for him.

From there, it is simple to track the errors in his description of what he thinks he’s doing as opposed to what he’s actually doing. First, when Scalia says, “I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words,” what he is saying is “I take the intended signs as they were promulgated to the people of the United States, and what is the fairly understood meaning of those intended signs.” Second, what Scalia means by “fairly understood” is that he will assume, as part of legal convention (and so itself a convention of a convention), that the legislators whose job it is to write the laws have written those laws in such a way that their intent will be clear.

What follows, then, is Scalia interpreting the intended text of the law with the presupposition in mind that the writers were hoping to clearly signal their intent. And so his interpretation factors in that implied promise on the part of the intending legislators as a legal convention.

What Scalia hasn’t done is dismissed the writers’ intent; he has instead accepted that intent as foundational to his interpretation and then applied the terms of a contract agreed upon by the legislators and the judicial branch, namely, that the legislators will craft their texts in the most conventional way possible; and the judge will interpret that text under the assumption that the legislators have signified conventionally. Without that intent assumed, it makes no sense for Scalia to lay claim to “interpreting” to begin with.

Problems only arise when “textualists” describe what they are doing incorrectly, and then try to turn that erroneous description into an official methodology: Scalia’s assertion that “intent doesn’t matter” is demonstrably false: the fact that he depends upon intent is evident the moment he decides to treat words as words, the moment he treats each reproduction of a statute as the same statute (even if the typeface has changed). And so his follow on statement — that he is interested in the “fairly understood meaning of those words” — is merely a preemptive warning to writers that when he interprets (in the specific context of legal hermeneutics), he expects that what he is interpreting will have been signified in such a way that he can usefully reconstruct its intent using the conventions specific to the text’s moment of production.

He is still appealing to (what he believes to be the original) intent. That he has decided to take on faith that the intent was signaled conventionally is not a sign that he “doesn’t care” about original intent; instead, it is a sign that he relies upon it for interpreting “fairly” to begin with.

What Scalia wants to guard against — because he, too, has misunderstood intentionalism — is the potential controlling interest of “some secret meaning” in a text. But a “secret meaning” not signaled most likely won’t get decoded anyway; and a secret meaning that is known to the “interpreter” doesn’t need to be “interpreted” in the first place. Or, to put it another way, you mean what you mean. But just because you mean is no guarantee others will correctly decode your meaning.

To return to the example of dicentra and her salt, and the linguistic lessons we take away from that exchange:

In those (exceedingly) rare theoretical instances where you know the intent at play and so are no longer interpreting (dicentra says salt but she means pepper, and you haven’t had time to inform her as of yet that she is signaling in such a way that will confuse those who rely heavily on convention to help glean intent) — and in the interim you are asked to rule on whether or not a third party (who doesn’t share your interpersonal experience with dicentra, and so doesn’t know her intent beforehand) is justified in believing she meant “salt” — no intentionalist would deny that the third party is indeed justified in believing exactly that.

But that’s not because dicentra meant salt, or because her text also means salt. It is because there’s no way a third party could possibly know from her text alone that she meant pepper when she signaled “salt”.

She has failed to signal her intent to that third party, even though she was able earlier to signal it to you. She still means what she means; but because the third party couldn’t possibly know what she meant, you find that they are justified in having misinterpreted her — not because they can make “salt” mean salt (at that point, they would no longer be misinterpreting; they’d be rewriting), but because in trying to reconstruct her intent, they couldn’t have known that salt meant pepper to her.

[...]

[...] the meaning of a text hasn’t changed simply because it doesn’t adhere to convention. The adjudicator has simply ruled, for purposes of enforcement, that the third party could not possibly discern the intent from the marks provided.

As I keep arguing — and, in fact, it has been my entire basis for explaining intentionalism — it matters how you get there.

Textualists who adhere to a conception of interpretation that “democratizes” a text by intending to hand it over to the public (and that’s what convention is, a public expression of the breadth of prior meanings a given “culture” has come to recognize) — even if only while doing legal interpretation — lend credence to a linguistically incoherent (and yet increasingly institutionalized) view of language that, because it claims to be interpreting without appealing to intent (even if in practice it merely hides its usurpation of that intent), promotes an idea of language wherein the interpretive community not only determines meaning, but it does so while claiming it is interpreting the author’s meaning — having first dismissed his intent as irrelevant.

This is lazy thinking. And it is lazy thinking made worse by a cynical refusal to surrender the power over the meaning its advocates desire.

We’ve seen the practical effects of such a mindset — in the (often disingenuous) outrage aimed at Bill Bennett or Tony Snow or Rush Limbaugh or guys with male dogs who walk too close to some suspicious old Negro gentleman and say the “wrong” thing.

To say [...] “I know what you meant, but what you meant is signaled in such a way that it couldn’t possibly be interpreted as consonant with your intent unless [the receiver of the message] also knew beforehand what you meant [...] is different from saying “I know what you meant, but what you meant doesn’t matter, because convention says you meant something else, and your intentions are irrelevant when it comes to determining what you meant.”

In fact, in the first instance, you are holding the original intending agency responsible for failing to signal his intent — while allowing that he means what he means; in the second instance — the one supported by the theory of textualism (if not always in practice) — you are telling the original agency that what he meant or didn’t mean is not important, because consensus (as determined by convention) will tell you what you meant.

At which point all you’ve done is strip the original text of its meaning, turned it into a set of signifiers, and then, by your own act of intending, attached to that set of signifiers the signifieds you prefer, taken from the realm of “convention.”

Or, to put it another way, you have ascribed your own will to the marks in order to make them mean — and you have done so at the expense of the signs you were originally asked to interpret. The result being that you haven’t “interpreted” at all. You’ve merely rewritten — and so created an entirely new text.

And ruling in favor of the text you created is hardly the kind of dispassionate functionality one expects from a judge.

The short term effect of institutionalizing such an interpretive paradigm is to silence those who fear that a given interpretive community will likely rob them of their meaning; the long term effects are to give meaning to whatever group shouts its claim the loudest — and to turn truth into a battle of group wills: might makes right, and the ends justify the means.

This is the left’s goal. Yet some on the right continue to give them the cover they need to lay the road that will lead directly to that end.

Scalia is an intentionalist. His insistence that he is not — and his explanation for how he isn’t — promotes an incoherent idea of language that those looking to undermine the idea of individual autonomy readily embrace. A shame, because his method for interpreting doesn’t match his explanation of what he’s doing when he interprets.

****
update: I confess that I’ve stopped reading Mr Frey’s latest posts on the question, having long since determined that I’ve answered every concern and addressed the linguistic pitfalls inherent in any relevant hypothetical.

Unfortunately, Frey has used my reluctance to respond yet again to assert that I haven’t dealt with some of his concerns. Writes Frey:

This is argument by definition and assertion. It assumes away the very question under debate. Sure, if you define a word as a “sign” having meaning only because its utterer intended it to have a particular meaning — if you define the word’s meaning according to the utterer’s intent — then, sure, anyone who claims to be interpreting “words” must necessarily be tying his interpretation to the speaker’s intent.

– which, if you’ve been following along, you’ll realize is the equivalent of saying, “sure, if you define gravity thus, it will of course be gravity that is causing shit falling off a tree to head toward the ground” — and then arguing that physicists are begging their own questions.

The fact of the matter is, semiotics has broken down words into their constituent parts in order to describe how they function. And as I offered to consider alternate definitions offered by textualists for purposes of finding a common language for debate — and was met with silence — I find it disingenuous that these same textualists now claim that certain definitions nullify the force of the argument. Hell, if they’d wanted to use Plato, ideal forms, and cave walls as our common vocabulary, we could have gone that route — and the arguments would have remained essentially the same from my end.

Frey goes on to say:

[That specific intent doesn't matter] is Scalia’s argument, and you can’t simply define it away. If one takes issue with that argument, they must confront it head-on — and address the problems I have discussed above relating to 1) the impossibility of assigning a single intent to a text that was created by people with competing, and sometimes diametrically opposed, intentions — as well as 2) the problems associated with ascribing an intent to a text that was ratified by idiots who didn’t even read it.

To which I respond — again — thus:

Scalia is an intentionalist. I have shown how and why. What more is there to say?

The idea that intentionalism runs into a problem because potentially diametrically opposed meanings can exist within the expanse of a signified intent is silly. Else we’d have to rule that all irony is beyond the purview of being intended. Likewise, it is silly to suggest that a decision not to read before approving something is proof of absence of intent.

The corporate intent of a multi-authored / ratified document is the collection of all the individual intentions that are used to signify the text as text. And, just as before, those individual intentions that don’t get signaled can be dismissed, just as if you were dealing with an individual who was signaling his meaning in a way that, without recourse to proximity and some give and take, would not be readily available to a good faith interpretation (that being one that appeals to what it believes are the intentions of the author/utterer).

Listen: Frey continues to try to save face by saying I haven’t dealt with the “real questions” . But I have, and he knows it — as does everyone who’s followed this from the beginning. The “problem” of utilitarian implementation is not a problem at all, as I have shown repeatedly: you have every right as a legal interpreter to refuse to implement an intention poorly signaled. But to do that, you must first be an “interpreter”. And if what you think you are engaging is someone else’s intended text, the only way to interpret what they said is to agree in principle that it is they who said it.

At this point, Frey is no longer hoping to speak to those people who have followed the back and forth of this debate, however. Instead, I’d venture he keeps going so he can reach any new people who haven’t been privy to the history of this discussion. That he has circled back to several arguments that I dealt with months ago means only that he hopes to wear me down by keeping me on the defensive.

Sorry. Not interested.

What Scalia thinks he is doing — whether for utilitarian reasons or not — is not what he’s doing, if what he thinks he is doing is claiming intent “doesn’t matter.”

By appealing to the “plain language” of the text, Scalia is appealing solely to a legal convention that he can only appeal to, for purposes of interpretation, because he believes the legislature intended to signal itself conventionally. What makes plain language plain is the idea that it was used plainly. Where Frey and Scalia fail is that they bracket by whom when describing their methodology — and as a result, they seem to accept an incoherent view of language as institutionally legitimate.

If Scalia came out and said that, no matter what the legislature means, I’m going to rule that the statute means what I think it means, we wouldn’t accept that as an act of interpretation — and we wouldn’t accept that as in keeping with the proper role of a judge.

But that’s precisely what the idea that “intent doesn’t matter” commits him to.

I’ve answered Frey’s questions, engaged his hypotheticals, and patiently explained and re-explained how all this works and why. For his part, he studiously avoided answering the five simply put questions I put to him and others who hold themselves out to be “textualists” — because he knew that doing so would commit him to defining terms in a way that I could refer back to and dissect to illuminate problems and inconsistencies.

He hasn’t argued in good faith in quite some time. And so he and his band of useful idiots can go about their business without once stopping to consider why it is that those who most support his position are either lawyers or leftist academics.

Posted by Jeff G. @ 11:07am
191 comments | Trackback

Comments (191)

  1. Second, what Scalia means by “fairly understood” is that he will assume, as part of legal convention (and so itself a convention of a convention), that the legislators whose job it is to write the laws have written those laws in such a way that their intent will be clear.

    Because that’s also their job, which makes reliance on convention as a strongly weighted factor in interpretation perfectly acceptable.

    What follows, then, is Scalia interpreting the intended text of the law with the presupposition in mind that the writers were hoping to clearly signal their intent. And so his interpretation factors in that implied promise on the part of the intending legislators as a legal convention.

    As it should be.

  2. Scalia is cited (p.2) on the question of the Living Constitution interpretation just yesterday, in the context of Miguel Estrada’s support for Elena Kagan. He says:

    I think the very terminology suggests where we have arrived — at the point of selecting people to write a constitution, rather than people to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court, or to the lower courts — you know, “Judge so-and-so, do you think there is a right to this in the Constitution? You don’t? Well, my constituents think there ought to be, and I’m not going to appoint to the court someone who is not going to find that” — when we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean.

    The senators are representing the majority, and they will be selecting justices who will devise a constitution that the majority wants. And that, of course, deprives the Constitution of its principle utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take, that are favored by the majority, is a recipe for destruction of what we have had for 200 years.

  3. Textualists who adhere to a conception of interpretation that “democratizes” a text by intending to hand it over to the public (and that’s what convention is, a public expression of the breadth of prior meanings a given “culture” has come to recognize) — even if only while doing legal interpretation — lend credence to a linguistically incoherent (and yet increasingly institutionalized) view of language that, because it claims to be interpreting without appealing to intent (even if in practice it merely hides its usurpation of that intent), promotes an idea of language wherein the interpretive community not only determines meaning, but it does so while claiming it is interpreting the author’s meaning — having first dismissed his intent as irrelevant.

    With meaning preceding pragmatism, which determination has some rather lovely effects:

    The left is utterly wedded to thought control. Like all sibling totalitarianisms, the left in America is addicted to power and repelled by truth. The creation of officially defined oppressors and officially defined victims determines who has rights and who does not. The totalitarian narcotic of “Social Justice,” the drug of choice for Hitler, Stalin, Father Coughlin, and Sir Oswald Moseley, dulls the people into a twilight land in which “Freedom is Slavery” and free speech too.

    And

    The term “social justice” is now commonly used by leftist activists, clergy, educators, judges, and politicians to describe the goal they seek to achieve with many of their policies. No precise definition of “social justice” is ever offered by the left. Instead, the term is always used in a vague way — as if everyone already knows, or should know, what the seemingly well-intentioned phrase “social justice” means.

    So the assault on reason continues fairly unchecked. From the left comes whatever reasoning the official voice wishes to craft an outcome by and from. By now the sane are living in an intellectual twilight zone.

  4. I don’t care that you intended to strike a blow for social justice what the bill says is “raise taxes”. Don’t come around here with your good intentions and secret meanings.

    “…..I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words”. A. Scalia

  5. Ironic, that, sdferr. Scalia’s problem is that he often misrepresents what he’s doing. And it is the championing of that misrepresentation that, when its lessons are put into the hands of those less scrupulous, is most dangerous.

  6. It’s like jls didn’t bother to read the post.

    Which, that’s pretty typical at this point.

    I don’t care that you intended to strike a blow for social justice what the bill says is “raise taxes”. Don’t come around here with your good intentions and secret meanings.

    “What Scalia wants to guard against — because he, too, has misunderstood intentionalism — is the potential controlling interest of ‘some secret meaning’ in a text. But a “secret meaning” not signaled most likely won’t get decoded anyway; and a secret meaning that is known to the “interpreter” doesn’t need to be “interpreted” in the first place. Or, to put it another way, you mean what you mean. But just because you mean is no guarantee others will correctly decode your meaning.” J. Goldstein, in this very post.

  7. I was offering a slightly different take:

    Intent as the planned outcome or purpose of the exercise

    vs.

    Intent as the proposed connotation of the language.

    My sense is that Scalia is drawn to the former.

  8. If Scalia said “I don’t care what you mean if you refuse to signal it clearly” instead of “I don’t care about intent,” he’d at least have the saving grace of being honest.

  9. “It’s like jls didn’t bother to read the post.

    Which, that’s pretty typical at this point.”

    I don’t remember (if I ever knew in the first place) who wrote the first quote against which jls juxtaposes the Scalia quote in what I presume he intended as a devastating riposte to Jeff’s argument. Could somebody clarify that for me?

    Or is jls’s meaning intended to be a secret?

  10. Could Scalia be saying “I don’t care what you intended to accomplish with the legislation”. I take the words as I find them and let the consequence flow to their natural conclusion.

  11. “Could Scalia be saying “I don’t care what you intended to accomplish with the legislation”.”

    The simple answer is no. The demonstration is found among other places in Scalia’s description of the purpose of the Bill of Rights.

  12. Rhetorical question: Would Scalia look past the actual words and discover an intent disguised in a penumbra of implications?

  13. If Scalia is saying “I take the words as I find them” he is saying “I believe your intent to be signaled conventionally and will interpret accordingly” — not “I don’t believe you intended, and therefore I can do as I please with these marks so long as I can show how conventional usage allows me to do so.”

    Conventional usage suggests that when I say “pass the salt” I could be asking you to give me the salt, or I could be directing you to move by and away from the salt.

    I probably don’t mean both. A textualist who follows his methodology as described would be permitted to say that the “text” “means” both things — and that what I intended when I produced the text “doesn’t matter.”

    But clearly it does if you hope to understand what I intended the text to mean.

  14. Why would you ask that question jls? Is there some reason to see J. Scalia as though he were J. Douglas?

  15. Greetings:

    Did you really intend these to be “final”, because they sure aren’t “few”.

  16. Would Scalia look past the actual words and discover an intent disguised in a penumbra of implications?

    The “actual words” are where the intent is manifest: in the signs. Looking at the context of the words, or the habits of the speaker, or other such things that give clues to intent, would help in situations where “convention” doesn’t delimit the possible appropriate interpretations.

    “Pass the salt” said in a specific context by a specific intending agency will be easier to understand than “pass the salt” conceived of as existing merely as a function of convention, where intent “doesn’t matter.”

    We always privilege intent. If a judge ruled that I was directing you to move by and away from the salt — and he did so without considering my intent — he has chosen which conventional meaning to use. By not appealing to my intent, he has simply privileged his own: convention here tells him the “words” mean this.

    But words are signs. And to understand signs in instances where convention doesn’t solve the problem, you look for intent. And that’s because convention is merely a way to signal the intent that gives “words” their meanings in the first place.

    I haven’t broken down signs and texts into their constituent parts to obfuscate. I have done so to remove the obfuscation inherent in “textualism.”

  17. Did you really intend these to be “final”, because they sure aren’t “few”.

    Plenty of sites use fewer words. If that’s what you like, don’t allow me to get in the way of your happiness.

  18. If Scalia is saying “I take the words as I find them” he is saying “I believe your intent to be signaled conventionally and will interpret accordingly” — not “I don’t believe you intended, and therefore I can do as I please with these marks so long as I can show how conventional usage allows me to do so.”

    Agreed.

    Your insights on “Intentialism” are concise, clear and compelling. No argument there. I am offering an alternative to Scalia as a dishonest textuallist and instead suggesting that he uses “Intent” to mean the intended outcome as apposed to the sourse of meaning.

  19. Either a text is a Rorschach blot or it isn’t.

    Full stop.

  20. “Would Scalia look past the actual words and discover an intent disguised in a penumbra of implications?”

    jls,

    That’s an interesting question. Allow me to begin to answer with a related question: Did a number of disingenuous commentators look past Rush Limbaugh’s actual words (“I hope he fails”) and discover a concealed “intent” by imputing to those words a racist sentiment (Rush Limbaugh says he doesn’t want a black man to succeed as President –RAAAAACISM!!!111!!!eleventy!!!)?

    I know it’s generally bad form to answer a question with a question, but I need a bit to organize my thoughts. So, more later.

    Regards

  21. “I am offering an alternative to Scalia as a dishonest textuallist and instead suggesting that he uses “Intent” to mean the intended outcome as apposed to the sourse of meaning.”

    Then it seems to me that the burden would land on you to show where Scalia says that, or points at it or does it in action. So far, what you’ve done seems more like throwing sand in the air and suggesting it will land where Scalia intends it to land.

  22. I am offering an alternative to Scalia as a dishonest textuallist

    I’ve already written that I believe Scalia to be mistaken about what he thinks he’s doing when he interprets. That doesn’t make him dishonest — although it does commit him to lending cover to those who are.

    The dishonesty comes when you realize that what you are doing is dictating to people what they mean and then placing the responsibility for the meaning you’ve dictated on them — and you decide you’re going to keep doing it anyway, because it works for you, and you can convince others similarly inclined to go along with the theft.

  23. Oh. And still so cool.

  24. Just for grins, since the case has been referred to above, we might hear from the dissent.

    Justice Black on Griswold in dissent (2 of 6 paragraphs quoted here), with whom J. Stewart joined:

    [...] The Court talks about a constitutional “right of privacy” as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the “privacy” of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” But I think it belittles that Amendment to talk about it as though it protects nothing but “privacy.” To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.

    One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term “right of privacy” as a comprehensive substitute for the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” “Privacy” is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court’s judgment and the reasons it gives for holding this Connecticut law unconstitutional. [...]

    Justice Stewart, with whom J. Black joined, dissenting (This is J. Stewart’s entire dissent):

    Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual’s moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual’s choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.

  25. When Scalia says he does not care about intent, I think he means the exercise of trying to oracle legislative intent that some courts engage in. That is done by going back and trying to glean additional clues on what the legislators were upto from notes and findings that legislators, or some cases their unelected aides made, during the process of passing whatever it is they ended up passing.

  26. sdferr, thanks for those quotes. Give those justices credit, they saw where this was going out of the blocks.

  27. The legislative intent is exactly what he wants to oracle. He’s just saying that he won’t go out of his way to do so, so the legislature had better signal that intent clearly.

  28. “[Scalia] uses ‘Intent’ to mean the intended outcome as apposed to the sourse of meaning.”

    jls, it would help me to know, whose intended outcome? whose source of meaning?

    regards

  29. OT: I always thought that the constitution said what government could do, not what it cannot do. So, I don’t see the constitution as saying whether you have a “right to privacy,” I see it as saying under what circumstances that privacy can be invaded. In my opinion, there are damn few circumstances, and the constitution is violated all the time w.r.t. privacy. I also understand that some objected to the bill of rights because they thought it would end up defining all rights, and all others would be eliminated or at least under government control. That is certainly what has happened, even with respect to supreme court justices.

    So, the bill of rights effectively turned the constitution on its head w.r.t. the people, and then of course the government started ignoring the constitution entirely, except when they acknowledge that it still exists, sort of.

  30. So the question become: What did Scalia intend by “intend”

    Intent 1: The final outcome or expected result of the legislation.

    Intent 2. The intended means to accomplish the expected outcome as scribed in legislation.

    Intent 3. The connotation expected to be assigned to the selected words to execute the intended means to accomplish the expected outcome.

  31. OT: What I mean is, I think the bill of rights contained some examples of what the constitution already prohibited the government from doing, but instead they became the template for what the government was prohibited from doing as opposed to having the constitution saying what the government is allowed to do, as originally intended.

  32. Now it’s starting to look like throwing sand into our eyes.

  33. sdferr, no sand throwing here. Just trying to frame the question as posed by you.

  34. Bullshit.

  35. So the question become: What did Scalia intend by “intend”

    Not if you’re a textualist…

  36. Lemme second sdferr’s call of Bullshit. I’m glad I got interrupted before I wasted my time trying to throw a little light on the very small area of honest disagreement and or misunderstanding between the so-called intentionalists and textualists. But, on the off chance that jls is interested in an honest exchange of views, let me rephrase:

    You wrote in full, “I am offering an alternative to Scalia as a dishonest textuallist and instead suggesting that he uses ‘Intent’ to mean the intended outcome as apposed to the sourse[sic] of meaning.”

    I would like to know what you mean specifically. Whose intended outcome? Scalia’s? the collective author of a given piece of legislation? a sui generis text? convention’s? Whose meaning?

    With that in mind:

    Intent 1: The final outcome or expected result of the legislation. expected by whom?
    Intent 2. The intended means to accomplish the expected outcome as scribed in legislation. intended by whom? scribed by whom?
    Intent 3. The connotation expected to be assigned to the selected words to execute the intended means to accomplish the expected outcome. expected by whom?

    These things matter, do they not?

  37. Apropos:

    DOES THE CONSTITUTION MEAN WHAT THE PEOPLE WANT IT TO MEAN? NYU lawprof Barry Friedman is doing a live chat on SCOTUSblog tomorrow — and you can submit questions in advance here if you want. His book is “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.”

  38. As an addendum, let me ad that I fully expect jls to pull a Leviticus and scurry back to where he came from.

  39. Ernst Schreiber;

    I am referencing the original quote:

    “If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

    Here Scalia is referencing the “intent” of the framers of the constitution.

    My question is what did Scalia mean by the word “intent”.

  40. My question is what did Scalia mean by the word “intent”.

    Whatever convention says he means.

    Honestly. Just deal with his words, why don’t you?

  41. My question is what did Scalia mean by the word “intent”.

    There probably aren’t any online or paper dictionaries available to the general public, yet.

  42. But Jeff, aren’t the words intent and indend, in the context judicial statutory interpretation, terms of art?

  43. Convention can’t answer the question. It can only narrow the options.

  44. Bravo! Very well spoken, sir. I would like to add few thoughts and questions. First, I think you have done a fantastic job of showing that textualists are intentionalists. What then, explains the difference? It could be a matter of good or bad faith, but I think that sufficient examples exist in either camps to resolve the question. Instead, it appears to me that the differences arise from their respective emphasis on “meaning” or “intent.” My understanding of the two schools of thought in statutory interpretation is that intentionalism emphasizes (i.e., privileges) “intent,” while textualism emphasizes “meaning.” Because a textualist privileges meaning, he or she is less likely to interpet an unambiguous word to arrive at an uninteded outcome. For example, assume the legislature passes a law that says “Thou shalt not use salt in the preparation of food in restaurants.” The textualist is not likely to read “salt” to mean “pepper,” while an intentionalist may subsume “pepper” in “salt,” if it could gin up a good rationalization to understand the law was to intend to reduce condiments and spices, which, if consumed in large quantities, are harmful. In this regard, textualism is a good rule of thumb to ensure that courts do not supplant the statutory law with their own judgments, while intentionalism may read into the text meaning that is not there on the grounds that, had the legislature thought about all the myriad circumstances to which this statute would be applied, they would have expressed that meaning.

    Second, textualism tends to break down when it is confronted with ambiguity. Suppose the term “restaurant” was not defined in the above statute. An official busy-body cites a sidewalk tamale vendor for using salt in her tamales. Does the statute, which plainly states “restaurant” apply to “sidewalk vendor”? Because the textualist focuses on revealed meaning, the text is dissociated from the drafter. Because the drafter may not be relied upon to resolve the ambiguity, the textualist inevitably plays with the meaning of the “words” themselves, consulting various dictionaries or employing philological techniques until he is satisfied that he has properly defined the word (whether in good faith or to effectuate an undisclosed, interpretive outcome). In this regard, the textualist is acting as an intentionalist, but focusing on the “meaning” of the dissociated text rather than extrinsic evidence of signified “intent.” An intentionalist is perhaps better suited to resolve this question because he will look beyond the ambiguous text to determine what the legislature intended. Looking to statements of purpose, intent, and the context in which the law was written, the intentionalist will : what is the point of this law? For example, did the legislature mean to regulate only restaurants, or to indirectly regulate the diet of affected citizens? The intent helps resolve the ambiguity. (I note that the ambiguity here is latent, because the ambiguity arises from applicatino of the statute, rather than from the text itself.)

    Third, and in my humble opinion, the textualist approach to ambiguity is preferrable when dealing with criminal statutes. Here, a textualist faced with ambiguity can reach for the “rule of lenity.” Under this rule, a criminal statute is construed in favor of a defendant. So, using my little example here, if the penalty for violating the “salt” in “restaurant” statute is 5 years in prison, the textualist will say: “the statute’s ambiguous, so tie goes to the defendant–you’re free to go.” This makes sense because, if the statute’s meaning is ambiguous, how is it just to hold someone criminally liable for behavior that they could not have known was proscribed? The intentionalist, on the other hand, will place the emphasis on intent, not meaning. Intent is paramount, (i.e., tie does not go to the defendant), and criminal sanction assured because ignorance of the law is no excuse.

    Fourth, the wheels completely fall off textualism when you consider the problem of absurdity. It is a long-standing canon of statutory construction that a court may not interpret a statute to create absurd results. If the plain, literal meaning of a statute is absurd (which is not impossible), a strict textualist would have to accept absurdity. The intentionalist has more flexibility to look at outside sources to avoid absurdity.

    Fifth, let me ask: are you open to Scalia? It seems to me that your reading of him is textualist, i.e., literal. At no time do you attempt to discern what he intends in that passage. For example, there is no consideration of the percieved mischief he is responding to (intentionalist interpretations that effectively re-write statutes). Nor is there any evaluation of whether he is speaking ironically, or otherwise, has a disclosed or undisclosed secret meaning. It appears to me that this is attributable to either: (1) your interpretation of Scalia is not in good faith, i.e., you are not engaging the meaning of his speech on its own terms (see, e.g., Gadamer v. Derrida); or (2) you are reading Scalia literally to reinforce your arguments about the limits of textualism. Having derived some understanding of your grasp of the concepts by reading your posts and comments on this site, I lean toward the latter. But the question stands nevertheless: is this a genuine interpretation of Scalia?

  45. In context it appears Scalia sees “intent” as similar to “secret meaning”. What does that suggest about his intentions?

  46. Pay close attention to the art of the sophist here jls, for Andrew may wish to teach you something useful.

  47. sdferr, not sure about Andrews sophistry but he sure can write. I’m impressed.

  48. I expect you would be. Do look carefully though, there are many lessons you can learn there.

  49. What then, explains the difference?

    Textualists incorrectly describe what it is they do, and so incorrectly legitimate a conception of language that is incoherent.

    As for the rest, you seem to believe that meaning exists separately from intent. The intent of the text is what gives it its meaning.

    And I am reading Scalia as a textualist because 3) that’s how he describes himself — and because the defenders of textualism, who originally pointed to Scalia as a champion, have, over the last several weeks, presented textualism and its stance toward intent in just the way I have described it.

  50. jls & sdferr: thank you for your kind words. Although, I confess that I’m not sure how to take “sophistry.” Its plain meaning is uncomplementary, yet its usage suggests otherwise. Clever wordplay, indeed.

  51. In modern terminology Andrew it’s nothing much more than intellectual or intellectualism. It isn’t a complement, but a description.

  52. These intentionalism/textualism discussions brought up a plot device in an episode of ER: A woman is given a prescription with instructions to take it “once per day”. She is not particularly good at Ingles, and therefore interprets the text as “once por dia”.

    Privileging her interpretation of the text over the intent of the doctor who wrote the prescription, and thereby taking 11x the intended dosage, cost her life.

  53. The textualist is not likely to read “salt” to mean “pepper,” while an intentionalist may subsume “pepper” in “salt,” if it could gin up a good rationalization to understand the law was to intend to reduce condiments and spices, which, if consumed in large quantities, are harmful. In this regard, textualism is a good rule of thumb to ensure that courts do not supplant the statutory law with their own judgments, while intentionalism may read into the text meaning that is not there on the grounds that, had the legislature thought about all the myriad circumstances to which this statute would be applied, they would have expressed that meaning.

    No intentionalism would not. Had the legislature not intended such a thing, the law couldn’t — because the legislatures’ intent is the law. An intentionalist who follows legal conventions to privilege the most common meaning in cases where the law is unambiguous would have no reason to go further than his assumption that the legislators were signaling their intent conventionally. In other words, they act no differently from anyone else who interprets — save that, unlike people who call themselves textualists, they don’t pretend that they are interpreting a sui generis text, and so aren’t compelled by their own methodology from asking “I wonder what they intended there?” if need be, and then going and finding out (if at all possible, using all other cues available to the interpreter who isn’t transfixed on convention alone) to ensure that they are interpreting correctly.

    Third, and in my humble opinion, the textualist approach to ambiguity is preferrable when dealing with criminal statutes.

    There are no separate approaches. Intentionalism is the state of things. And an intentionalist who behaves coherently is not committed to applying the law any more strictly than a “textualist” if he decides what was meant — though it was meant — wasn’t properly signaled.

  54. sdferr–In that case, I thank you, sir.

    The Monster (El Monstruo? La Monstra?)–the E.R. example is a failure of language, not methodology. If the patient was fluent in English, the “plain meaning” of “once per day” would have been readily apparent. The doctor’s intent would have been revealed through the plain meaning of the text. Indeed, if the patient spoke English, I would dare say “what part of the text’s intent [could she] not possibly glean from the way it has been signaled in that given historical context.” But because the patient did not understand English, she could not access the text’s meaning. Given the failure of language, I’m not sure that an intentionalist reading would have revealed the doctor’s intent, either. She could have always called the doctor, but then the patient would be interpreting the telephone conversation, not the prescription.

    Also, I forgot to agree with your “meeting of the minds” comment a couple posts back. Please forgive the oversight.

    While I’m at it, JeffG., Darleen, et al.–Thank you for hosting a great forum. It’s a shame that some observers don’t get it (see, e.g., the Statue of Liberty cartoon controversy).

  55. Instead, it appears to me that the differences arise from their respective emphasis on “meaning” or “intent.” My understanding of the two schools of thought in statutory interpretation is that intentionalism emphasizes (i.e., privileges) “intent,” while textualism emphasizes “meaning.” Because a textualist privileges meaning, he or she is less likely to interpet an unambiguous word to arrive at an uninteded outcome.

    Nice cleaving “intent” and “meaning” into two separate entities to have a word called “meaning” that is infused with the spirit we know as “convention”, when it is no such thing. Meaning is only intent that has been put into some form to transmit. The meaning is that which the mind’s intent placed onto the text. It does not exist separate from the intent. If you wish to privilege “convention” fine but don’t start down the road of redefining words, ideas, into a mush so as to make things impossible to discuss. There the sophistry lies. Nice knife, sharp edged.

  56. “Because a textualist privileges meaning, he or she is less likely to interpet an unambiguous word to arrive at an uninteded outcome. For example, assume the legislature passes a law that says “Thou shalt not use salt in the preparation of food in restaurants.” The textualist is not likely to read “salt” to mean “pepper,” while an intentionalist may subsume “pepper” in “salt,” if it[I love me some gender neutral 3rd person singular pronouns] could gin up a good rationalization to understand the law was INTENDED [grammer corrected and emphasis added, E.S.] to intend to reduce condiments and spices, which, if consumed in large quantities, are harmful. In this regard, textualism is a good rule of thumb to ensure that courts do not supplant the statutory law with their own judgments, while intentionalism MAY READ INTO THE TEXT [emph added E.S.] meaning that is not there on the grounds that, had the legislature thought about all the myriad circumstances to which this statute would be applied, they would have expressed that meaning.

    Oh. My. God.

    Jeff, I thought this time you might get that boulder up and over the hill. I’m so sorry.

  57. grammar (including my own spelling) almost corrected INTENDED replaced “to intend”

  58. Camus was wrong. Sometimes it’s best just to off yourself.

  59. But because the patient did not understand English, she could not access the text’s meaning.

    On the contrary, even though she didn’t understand English, she could know that the first language of the doctor who wrote the prescription is English and privilege the doctor’s intent by seeking out someone who did understand English to translate, to ask in Spanish for someone who explain the proper dosage, etc. But since she didn’t do that, and instead insisted on privileging a Spanish interpretation of the text (even though two of the three words would thereby be misspelled, which should have clued her into the fact that she had made a really big mistake) she died.

  60. Jeff, should you and your lovely bride ever be blessed with a daughter, consider naming her Cassandra in commemoration of your travails. Seriously.

  61. I withdraw everything I said in the other thread about sausage and mushroom pizza. In commemoration of your suffering I will partake of a sausage and mushroom pizza –at least a slice–once.

  62. Again, thank you for the spirited and insightful commentary and dialogue. I’m afraid that all of your excellent comments deserve thoughtful responses that the pressures of my workday simply will not allow at this time. Please forgive me if I upset something that should have been put to rest (along with my “grammer” errors).

    Briefly, however, I would note the following: (1) the Federal Criminal Practice Blog’s excellent discussion of Scalia’s application of the rule of lenity and Steven’s intentionalism in United States v. Santos, 128 S.Ct. 2020 (2008); (2) the distinction between “meaning” and “intent” is not mine, but comes from the leading legal treatise on the subject, 2A Sutherland Statutory Construction § 45:8 (7th ed. 2009); and (3) respectfully, the legislature’s intent is not the law; the legislature makes the law but it is up to the courts to finally and authoritatively interpret what the law says, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). In other words, there is no abstract, generalized “law,” “intent,” or “meaning” that exists prior to application; it is by application that law is announced, spoken, revealed, inscribed, reified, made present, etc. On this last point, ask yourself the following: assuming the “salt-in-restaruant” staute is ambiguous, could an intentionalist judge look to the floor speech of one legislator to determine what the statute says? What if that legislator had requested than an editorial from the New York Times be read in to the official record? Does that mean that the New York Times’ editorial board’s opinion on the matter constitutes the “legislature’s intent”?

    This is why I appreciate Jeff G.’s reading of Scalia. The significance of his position is lost when his words are divorced from their larger context–challenging interpretive mischief caused by intentionalists who want “salt” to mean “tabasco”–and which shows precisely the limits of a narrow textualism that is ascribed to him and put forward by his naive boosters. By reading Scalia pursuant to this naive, narrow view, Jeff G. puts that view to work productively.

  63. sdferr, That Andrew fellow is a smooth talker. Thanks to all for the dialog.

  64. Scalia’s application

    Scalia’s application is not necessarily the problem, as I’ve written before (and linked in this post). His problem is his description of what he’s doing.

    The distinction between meaning and intent may not be yours, but from a linguistic perspective it doesn’t work — just as it didn’t when the New Critics tried the same maneuver in the 40s and 50s.

    respectfully, the legislature’s intent is not the law; the legislature makes the law but it is up to the courts to finally and authoritatively interpret what the law says

    Fine. The legislature’s intent is the text of the thing that the courts look at as if it were an intended law.

    In other words, there is no abstract, generalized “law,” “intent,” or “meaning” that exists prior to application; it is by application that law is announced, spoken, revealed, inscribed, reified, made present, etc.

    If I kick the statute and say “thus I refute,” will that answer the concern?

    On this last point, ask yourself the following: assuming the “salt-in-restaruant” staute is ambiguous, could an intentionalist judge look to the floor speech of one legislator to determine what the statute says? What if that legislator had requested than an editorial from the New York Times be read in to the official record? Does that mean that the New York Times’ editorial board’s opinion on the matter constitutes the “legislature’s intent”?

    An intentionalist judge would look to everything he could until he determined he’d done his best to glean intent. The fact that a legislator made such a request is part of the context in which the statute was created. Was the NYT editorial presented favorably or unfavorably? Was there reaction to it?

    And so on.

  65. I deleted another Frey trackback. If he asks an interesting question or decides to answer the queries I put to him a few threads ago, someone let me know. If not, we haven’t much to discuss at this point — though if I had to guess, I’m betting Frey is back to something like “if Scalia says he doesn’t care about intent, how can an intentionalist tell them he DOES? CLOWN NOSE ON!!!11!! eleventy!”

    To which the simple answer is I haven’t said Scalia didn’t intend, nor that he didn’t intend to say that “intent doesn’t matter.” What I’ve shown is that he is mistaken about that belief, regardless of how much he might mean to describe the belief in what he’s doing that way.

  66. Great discussion, Jeff. While I think Frey initialy raised some legitimate questions, his latest responses show me he must be willfully trying to misinterpret your arguments.

  67. Jeff–Thought you might get a kick out of me defending your position elsewhere.

  68. They will aggressively ignore your point or restate it so it doesn’t resemble your point — and attribute it to you, Andrew. So don’t bother.

    Had they any sense of irony, they’d realize that they’ve been performing my argument for me in their cynical and dishonest zeal to beat it back.

  69. Yesterday I had a moment where I thought I could grasp the crux of the argument and understand the points of disagreement. But I have to say, I got nothing. At least nothing I could explain and be understood. But, fool that I am, I’m going to try anyway.

    The problem seems lie in the question: where does meaning reside? (I don’t know if Jeff would agree with that formulation, so, should he feel the need to cockslap me up the side of the head, I shall attempt to take my beating manfully –it’s his blog after all).

    Jeff approaches the problem from his training in linguistics and semiotics, which in the context of the question of meaning (well, all questions of human interaction really) is an

  70. Intentions, secrets and interpretation. A case where clear law is ignored for what, political expedience?

  71. second attempt. Fucking dial-up. Remainder of the comment follows:

    Jeff approaches the problem from his training in linguistics and semiotics, which in the context of the question of meaning (well, all questions of human interaction really) is analogous to a theoretical science or discipline: it seeks to describe things at their broadest, most fundamental or foundational level (and as we’ve learned from quantum physics, the most fundamental can get damned complicated damned fast). Jeff’s argument (and its not an argument really, its an assertion of foundational reality) is that meaning lies with the originator of a linguistic act, a speaker or author. When the receiver of a linguistic act correctly understands the originator’s meaning, the receiver has “interpreted” the “intent” of the originator of the linguistic act. Anything else is either a failure to comprehend or a miscomprehension (by now we’re all familiar with the examples). What Jeff is arguing against as linguistically incoherent is for the receiver to take his miscomprehension of the originator’s intent and attribute it back to her as if what the receiver has failed (or chosen not to) comprehend was what the originator meant in the first place. That is misinterpretation or, when done purposefully, reinterpretation.

    Misunderstandings, happen; reinterpretation happens. The problem, particularly as it applies to the realm of political ideas, (although it’s not limited to that realm) is that when reinterpretation becomes sanctioned, it undermines the basis for the honest exchange of ideas, becomes a tool for promoting favored ideas and suppressing disfavored ones, and ultimately results in thought control.

    I’m going to stop here before I attempt to explain (as I understand it) the “anti-intentionalist” argument. To the extent that it’s not a “fuck you Goldstein!” And see if I get any feedback. I’d like to apologize to Jeff for my presumptuousness in recasting the argument he’s made ad nauseam yet again on his blog. My excuse for doing it was in order to clarify my own thinking. Before the beatings and cockslappings commence, I’d also like to plea for mercy by invoking the Capt. McCluskey Rule: “Jesus Tom! I was just speculating about a hypothesis! I know I don’t know nothing.”

    And if I get a bunch of “Shut up Schreiber!” “You don’t know your ass from your hat Schreiber!” “Take your mental masturbatings elsewhere Schreiber!” that’s what I’ll do.

    More later. Maybe. Or Not.

  72. I didn’t know you wore a hat Schreiber.

    heh, only kidding Ernst, it looks to me you’re on the right track, and that error avoidance is mostly the point; further, that error avoidance can’t be achieved where an initially incoherent, faulty or corrupt account is laid down as guidance to interpretation. Do carry on.

  73. I’m just impressed you managed to get in a Miller’s Crossing reference.

    The only thing I’d quibble with is the idea of “reinterpretation.” When done purposefully — whether out of rhetorical malice or as the product of having adopted a faulty methodology, and then following that methodology through at the level of its faultiness — it isn’t “interpretation” of a speech act at all. It is the creation of an entirely new text out of ordered signifiers you’ve borrowed or “found” — the creation of language out of accident.

    You can “interpret” cloud formations or crop circles, but to do so you have to believe them intended. Otherwise, your interpretation is merely you adding signification to a mark — and so is an act of creation and not discovery.

    When I talk about interpretation, therefore, I place it in the realm of the speech act: an encoder intends, and his intentions, manifest in language (ordered signs), are transmitted to receivers who attempt to decode (and then re-encode) the signs in order to understand that original intent (which is the “reason” for the signs to begin with).

    “Interpreting” something that isn’t intended is, therefore, not interpretation in that there is no decoding happening. That is, unless you believe texts exist autonomously, at which point you’re committed to seeing “plain meaning,” eg., in the “words” scrawled in gas and vapor across the sky, with “convention” (or particularized denotative consensus in a given culture) as the “author” of that text.

  74. To take a stab at what gets the anti’s panties in a twist I’d point to the explication of the intentional “disinformation” campaign — do we accept [of the two operative intentions in the mind of the communicating agent] the intention that we’re fooled by the deception as intended facially or are we to drive straight through that deception to the hidden [other and actual] intention to deceive and thus discover the secret? And there, they’re all wound up like a top. It’s a demand for truth ultimate and final, they say. And who would we be to deny them?

  75. And yet the ease by which you can deceive simply by playing with others marks to make them do what they never meant them to do is far easier to pull off: not only do you appear to be doing something legitimate (“Look! His plain words tell you he’s racist, do they not! READER POLL!”) in that instance, but in the instance about which they claim to worry, the intentionalist has nothing to prove his intent (in the case of “secret meanings”) but his own second-order testimony.

    If nothing he put into the signaling of his intent registered, it is unlikely anyone will accept his explanation that he intended what he didn’t signal. Or, at the very least, even if they give him the benefit of the doubt, they will feel justified in having misinterpreted him.

  76. Glad I stopped bye today. Nice job Ernst and thanks for the extensions Jeff. It reads like poetry. Appeals directly to my mechanistic mind.

    Even P. Frey wouldn’t argue with that formulation (I suspect).

    He does make a good point about discovering intention when you have multiple speakers/legislators. I haven’t heard you address that question but I suspect that it would go to the idea that multiple legislator may have input to the writing process but at some point the task falls to someone to craft the intent. (Text doesn’t write itself after all) and then the act of interpretation reduces to deducing the crafters intent. What else could it mean. What if we had a text written by multiple people where each one choose a word in sequence. Would it be different if the group met ahead of time and discussed their intent as opposed to starting cold.

  77. Thanks to all for the thoughtful feedback. I’ll be back w/ my take on the anti-intentionalist argument later today, real life obligations having gotten in the way in the meantime.

  78. jls –

    Actually, I’ve addressed the idea of intent when it is the intent of a number of people many times. The text produced by that collective intent contains the intent that supplies the text with its ratification or group approval. You can intend to leave things vague (fiction writers will often do this, for instance, to allow readers a breadth of possible interpretations); and you can also have a text that carries with it a variety of individualized intents that work in conference with the collective intent that is then manifest in the signs.

    I tried to explain that to a dumpling here. The intent — whatever it is an however much it is — is what makes the signs signs. Difficulty in pinning down what that intent is in every instance is not a justification for dismissing it.

  79. “The intent — whatever it is an however much it is — is what makes the signs signs. Difficulty in pinning down what that intent is in every instance is not a justification for dismissing it.”

    Totally agree.

    With a single speaker it seems clear that the intent resides within the mind of that speaker and the challenge is to read that intent. Not easy but conceptually do-able. With a group you have more optins to consider. Below you suggest that the intent of the “ratifiers” is operative. Do i understand you correctly.

    steamed dumpling: “So then textualists need merely change the description of their method. Instead of describing what they’re doing as appealing to what a text ‘says’ rather than what it ‘means,’ they should make it clear that they are appealing to what a text ‘meant to its ratifiers’ rather than what it ‘meant to its original authors.’”

    me: “Precisely.”

  80. That’s the operable intent in that special instance: the intent of those who originally interpreted the intent of the framers.

  81. Earlier today I started to address the problem with the question, where does meaning reside? And attempted to recapitulate Jeff’s assertion that meaning resides with the originator. I now want to address the argument against Jeff’s assertion, what I earlier referred to as the “anti-intentionalist” argument. I’m phrasing it that way, because the “debate” for the most part consists of people who don’t accept Jeff’s views attempting to find fault with his understanding of language, and demanding that he answer increasingly improbable hypotheticals for the amusement of the mob. Since no one has offered an argument in favor of an alternative understanding of language, Jeff’s detractors are by default anti-intentionalists.

    Now, the anti-intentionalists can be divided into two by no means exclusive groups. The first group I’m going to call the Woltz Faction because they are, for the most part, partisans of a man who has been made to look ridiculous in a position where that man cannot afford to look ridiculous. That group won’t factor in here for reasons that should be fairly obvious by now. The second group of anti-intentionalists I’ll refer to as supporters of the lawyerly objection to ambiguity (because I like the sound of that).

    The lawyerly objection to ambiguity argument answers the question of where does meaning reside, by saying “it depends” and then points to three specific objections to Jeff’s position:

    1) how do we as recipients deal with multiple authors who may have encoded multiple meanings into their speech acts?

    2) how do we as recipients deal with lyin’ sumbitches who don’t mean what they say?

    3) how do we as recipients deal with esoteric meaners who encode their words/signs with secret meanings, private meanings, code words or (dare I say?) racist dog whistles?

    The lawyerly objection, as I understand it, is that these cases present special or unusual circumstances of ambiguity where there are:

    a) no single author and thus no single intent

    b) an unreliable author and thus no ascertainable intent

    c) an inscrutable author and thus no discernable intent

    and:

    d) we have to do something with the texts. Hence, our conventions of legal “interpretation.”

    Now, I don’t think that any of these objections, all of which he has addressed at one time or another, overturns Jeff’s position. His response, as I understand it, is

    a) a corporate author has a corporate intent

    b) a lyin’ sumbitch means to be a lyin sumbitch; if you don’t figure it out, that’s your problem, and if you do, that’s his.

    c)if someone doesn’t intend for you to divine his meaning, you probably won’t (see b, above; and in any case, have you ever noticed that most of the people who see code words or hear dog whistles are always on the look out for the same, and never seem to have any trouble finding them, even if they’re the only ones who can? That kind of proves my point, does it not?)

    and:

    d) convention is nice, useful, and even necessary to interpretation, but it’s not sufficient. If you’re not attempting to re-encode the meaning encoded by the speaker, you’re just making up shit.

    It’s at this point, I think that the “debate” falls apart for the anti-intentionalists. Partly this is because they view it as an assault on the conventions of their profession; conventions that they’ve taken for granted for so long that they don’t know how to defend them, or even why they should have to. You’ll notice, for example, that no one has taken up Jeff’s challenge to explain textualism. And that no one appreciated that if (what’s his first name?) Strauss’s argument for applying a new convention to Constitutional interpretation (plain meaning as it exists today, as opposed to a reasonable man from the late eighteenth century –because, hey, how reasonable can he be if he’s wearing a wig and pantaloons?), if that has Stanley Fish, Stanley “Yeah, Gravity is a tool of white male patriarchal oppression, what an interesting idea!,” that Stanley Fish, alarmed, we ought to be shitting bricks. And I think the reason for that in turn, is because the anti-intentionalists, lawyers it seems for the most part, are trained in an applied science. They just want to know what the rules are so that they can go about their business, and they don’t want to think about what it is that they do at a foundational level. And that Goldstein character is a trouble-making asshole for wanting them to.

    And as for the Woltz Faction? They went to the mattresses shortly after Jeff pulled that stunt with the horse’s head. (Or was it a horse’s ass? It was all so long ago. At any rate, something with a horse.)

    So that’s my half-assed attempt to review the state of the question. Pile upon me as you will, but the Capt. McCloskey rule is still in effect.

    ES

    Addendum:

    I should have added somewhere up above that the one serious attempt to refute Jeff’s argument that the way language works is the way language works, even for the Law, was made by Andrew. Andrew pointed out that multiple author’s could have multiple private meanings, and that this opened a door to judicial mischief, since an activist judge could point to one author’s intent and make it the controlling intent for all the authors. This however, is not an example of intentionalism as Jeff describes it. By privileging an individual author’s intent over that of the corporate author, an activist judge would actually be replacing the text as written by the corporate author, with one he (the judge) prefers, and asserting that the preferred text was the one originally written by the corporate author. Which again, kind of proves the point that Jeff has been arguing about.

  82. Had they any sense of irony, they’d realize that they’ve been performing my argument for me in their cynical and dishonest zeal to beat it back.

    Jeff wins the thread, the blog, and the ‘tubez with this one.

  83. They just want to know what the rules are so that they can go about their business, and they don’t want to think about what it is that they do at a foundational level.

    True story: a colleague of mine had one of those desktop zen gardens consisting of shallow cardboard tray, sand, pebbles, and a wooden rake for tracing parallel lines.

    A group of software engineers contemplate it: “What are the rules?” they ask.

  84. As for the multiple authorship of a legislature, congresscritters mostly intend to pass a bill. They don’t give a rip about the details or even about some of the generalities.

    Those what intend in this case are the lobbyists who wander the halls of Congress with sheaves of legal writ tucked under their arms, and what they intend is to insert language that favors their employers into a behemoth text that the critters enact, with few of us any the wiser.

  85. Even P. Frey wouldn’t argue with that formulation (I suspect).

    I suspect you’re wrong, assuming that it’s Jeff making the case.

    With a single speaker it seems clear that the intent resides within the mind of that speaker and the challenge is to read that intent. Not easy but conceptually do-able.

    It can be difficult, but it can also be plain as day. Take, for instance, Rush Limbaugh’s infamous “I hope he fails” statement. Heard in context, his meaning couldn’t be plainer. And yet that was where this discussion/argument started, with Patrick’s argument that people shouldn’t say things that could PURPOSEFULLY be misconstrued and used against them.

    And he’s spent the last year and a half trying to prove the point by mangling Jeff’s intent to suit his own argument.

    Good man, my ass.

  86. Pablo-

    I haven’t completely followed the past years arguments but Frey seems to be conceding Jeff’s main point about how language works when he says:

    “This is argument by definition and assertion. It assumes away the very question under debate. Sure, if you define a word as a “sign” having meaning only because its utterer intended it to have a particular meaning — if you define the word’s meaning according to the utterer’s intent — then, sure, anyone who claims to be interpreting “words” must necessarily be tying his interpretation to the speaker’s intent.” P.Frey

    To paraphrase: “Sure, Jeff is right if you go and start using definitions and stuff like that”.

    He is now arguing that intentionalism fails the test of utility (my word) when it come to legislation because there is no single coherent intent to discern and Scalia’s quote reflects this reality.

    “That is Scalia’s argument, and you can’t simply define it away. If one takes issue with that argument, they must confront it head-on — and address the problems I have discussed above relating to 1) the impossibility of assigning a single intent to a text that was created by people with competing, and sometimes diametrically opposed, intentions — as well as 2) the problems associated with ascribing an intent to a text that was ratified by idiots who didn’t even read it.”…… P. Frey

  87. jls, Patrick’s argument’s have long been incoherent and self-contradictory. This:

    This is argument by definition and assertion.

    is a good example, and the reason for the use of such is to avoid agreeing with Jeff at all costs. You don’t suppose that he’s affirming Jeff’s premise prior to his “agreement”, do you?

  88. Scalia is an intentionalist. I have shown how and why. What more is there to say, really?

    The idea that intentionalism runs into a problem because potentially diametrically opposed meanings can exist within the expanse of a signified intent is silly. Else we’d have to rule that all irony is beyond the purview of being intended.

    The corporate intent is the collection of all the individual intentions that are used to signify the text as text. And, just as before, those individual intentions that don’t get signaled can be dismissed, just as if you were dealing with an individual who was signaling his meaning in a way that, without recourse to proximity and some give and take, would not be readily available to a good faith interpretation (that being one that appeals to what it believes are the intentions of the author/utterer).

    Listen: Frey continues to try to save face by saying I haven’t dealt with the “real questions.” Because I have, and he knows it — as does everyone who’s followed this from the beginning.

    Frey is not hoping to speak to those people any more, however. He keeps going so he can reach any new people who haven’t been privy to the history of this debate. That he has circled back to several arguments that I dealt with months ago means only that he hopes to wear me down by keeping me on the defensive.

    What Scalia thinks he is doing — whether for utilitarian reasons or not — is not what he’s doing, if what he thinks he is doing is claiming intent “doesn’t matter.”

    By appealing to the “plain language” of the text, Scalia is appealing solely to a legal convention that he can only appeal to, for purposes of interpretation, because he believes the legislature intends to signal itself conventionally.

    If Scalia came out and said that no matter what the legislature means, I’m going to rule that the statute means what I think it means, no one would accept that as an act of interpretation — and no one would accept that as the proper role of a judge.

    But that’s precisely what the idea that “intent doesn’t matter” commits him to.

    I’ve answered Frey’s questions, engaged his hypotheticals, and patiently explained and re-explained how all this works and why. For his part, he studiously avoided answering the five simply put questions I put to him and others who hold themselves out to be “textualists” — because he knew that doing so would commit him to defining terms in a way that I could refer back to and dissect to illuminate problems and inconsistencies.

    He hasn’t argued in good faith in quite some time. And so he and his band of useful idiots can go about their business without once stopping to consider why it is that those who most support his position are either lawyers or leftist academics.

  89. I don’t think Frey intended his comment that Jeff was arguing by “definition and assertion” as a compliment but he did concede that if you accept Jeff’s definitions then you must accept Jeff’s conclusions about how language works. Since Jeff is very clear about his intent i think we can square the circle and declare the debate concluded. At least to Jeff’s main point.

    All that’s left is to clear up a few details about intentionalism’s utility when it comes to the legislative process.

    Of course, i could be wrong about that!

  90. Jeff-

    “By appealing to the “plain language” of the text, Scalia is appealing solely to a legal convention that he can only appeal to, for purposes of interpretation, because he believes the legislature intends to signal itself conventionally.”

    I accept this statement as a fundamental truth for an honest Textualist.

    I also agree that Scalia presents a conundrum if we assume by “intent doesn’t matter” he is signaling “no matter what the legislature means”. I follow your arguments and agree with your conclusions given this assumption.

    Is it possible that by “intent doesn’t matter” Scalia could be saying that “intension doesn’t matter” or “intended to accomplish doesn’t matter”?

    A subtle shading that leads to a possible reformulation: If Scalia came out and said that no matter what the legislature “intended to accomplish”, I’m going to rule that the statute means what it says.

    Another way to resolve the conundrum?

  91. Oh, by the bye…

    Here’s the RFC for IMPS, in case you’re interested.

  92. Is it possible that by “intent doesn’t matter” Scalia could be saying that “intension doesn’t matter” or “intended to accomplish doesn’t matter”?

    Frankly, jls, it doesn’t concern me which of those, if any, he might wish to stipulate. The fact of the matter is, I don’t worry about what Scalia actually does when he interprets, because I am convinced that he is indeed trying to interpret (as I said to the dumpling, and pace Fish) — and so is an intentionalist, regardless of how he describes himself.

    What is problematic is that “textualism” itself embraces a formalistic approach to language — one in which texts “say” things extra-intentionally, “words” aren’t conceived of as having some intention attached in order to be words, and there is no distinction between signs and the marks that signal signs, the signifiers.

    Again, everyone is an intentionalist. The trouble is with the description of the textualist methodology and its institutionalization: because such a description errs in noting what it is doing, and that error of description leads to errors of application (compare: the text means whatever its “words” “say” regardless of the intentions of those who wrote it; vs the text as interpreted appears to signal the intent of its writers/ratifiers thus) that are dangerous and easily exploitable.

  93. I hate to argue with dicentra, but this…

    – which, if you’ve been following along, you’ll realize is the equivalent of saying, “sure, if you define gravity thus, it will of course be gravity that is causing shit falling off a tree to head toward the ground” — and then arguing that physicists are begging their own questions.

    …wins the tubez.

    jls,

    All that’s left is to clear up a few details about intentionalism’s utility when it comes to the legislative process.

    I’ll be interested to know when Patrick agrees with that.

  94. And I’ll refer you to my #1 for the solution to that question. Sounds like everybody wins!

  95. Pablo-

    Why argue with dicentra: She nailed it! (What’s a tubez anyway?)

    My reading of Patrick’s post is that he concedes Jeff’s main point…(Sure, if you define it THAT way)… but wants to shift the debate to the utility of internationalism in the legislative process. He even has a cute post which mocks Jeff’s style of debate between a Statute and an Intentionalist.

    Patrick is looking for a “surrender with honor” solution so his concession my not get much more explicit. I say accept his terms of surrender…aka Definitions matter.. and move to the next battle space.

    Just one intentionalists opinion of a textualists intention.

  96. Patterico really needs to stop beating me.

  97. “If one takes issue with [Scalia's] argument, they [sic --I luv me some 3rd person plural pronouns used as gender neutral singulars G'bless the MLA --EVERYONE!] must confront it head-on — and address the problems I have discussed above relating to 1) the impossibility of assigning a single intent to a text that was created by people with competing, and sometimes diametrically opposed, intentions — as well as 2) the problems associated with ascribing an intent to a text that was ratified by idiots who didn’t even read it.”

    Personally, I think the problem resolves itself once you realize that the corporate linguistic intent of a piece of legislation has little or nothing to do with any individual legislator’s intention in ratifying the said piece, Woltz’s point about idiots not withstanding.

    But what the hell do I know? I’m just a dumbfuck historian.

  98. NEWS FLASH:

    Patrick Frey shocked, shocked to discover that intentionalism “just is” as if “by definition”.

  99. Frey has some surprising endurance for these sorts of things. It was sad and kinda funny before.

    What’s it now?

  100. Oh, hey, Ernst, good recaps earlier.

  101. mortuus equus, when you were equus vivens your name wouldn’t happen to have been Khartoum, would it?

  102. bh, thank you. Review essays were something that I enjoyed doing back in the days when I had still had delusions of a life in the Academy.

  103. jls @ #98

    OK, that’s pretty funny, even factoring in the Kafkaesque arc of this…uh….discussion.

  104. He even has a cute post which mocks Jeff’s style of debate between a Statute and an Intentionalist.

    Really? I have a style?

    Okay then. Let me try a return volley.

    Me: “So, have you answered those questions yet? About what a word is, what a text is, and so on…?”

    “Textualist”: “No. But if you have a few moments, I have some bullet points I’d like you to address. To wit: a million monkeys and a flock of egrets buy a coal mine, a shitload of hard-working African children, and an industrial strength press so advanced that it can literally turn lumps of coal into diamonds –”

    Me: “I’ll pass, thanks.”

    “Textualist”:

    “Textualist”:

    “Textualist”: “ANSWER THE QUESTION!”

  105. “[Woltz] is looking for a ‘surrender with honor’ solution”

    Yeah, just like Fabius Maximus was looking to surrender to Hannibal.

  106. Answer the question!

    (Yes, this is us mocking you, Frey.)

  107. My reading of Patrick’s post is that he concedes Jeff’s main point…(Sure, if you define it THAT way)… but wants to shift the debate to the utility of internationalism in the legislative process.

    I can see why he’d like to do that, as it would be a nice distraction from the fact that he’s been an absolute asshole for an awfully long time in the service of avoiding this utterly obvious conclusion.

  108. Now now, Jeff, great Don’s don’t exult in their victories, lest they breed loathing as well as fear. They simply do as the must, and never speak of it again.

  109. Ernst, the stakes are too high these days.

    Truth or bust.

    OUTLAW!

  110. Well, Pablo, everything he writes on the subject is complicated by the fact that he needs to misrepresent intentionalism to any reader not paying much attention.

    Surely we should cut him some slack. Are we not good men?

  111. Obviously some people can’t handle the truth, Pablo.

    BAGAUDAE!

  112. “[E]verything he writes on the subject is complicated by the fact that he needs to misrepresent intentionalism to any reader not paying much attention.”

    The semi-interesting question to my mind is how much of it is deliberate misrepresentation and how much of it is basic failure to understand that Jeff is arguing at a higher order of analysis; one that Woltz cannot sufficiently grasp?

  113. I’ll upgrade that from semi-interesting to fully interesting, Ernst. Yet, I can’t convince him to let me scan his brain as he thinks about this.

    You phrase it correctly, regardless, to what degree does he not understand the higher order of analysis? Very tricky this way forward. Gun to my head, I’d say, like an animal, he senses the danger. I don’t know if I can assign awareness to it though.

    BECAUSE HE WON’T ANSWER THE QUESTIONS!

  114. I’m arching my eyebrows like a mofo. And stroking my beard. Whilst checking my watch.

  115. Pablo-

    I’m glad you appreciate #98. Here’s the deal:

    I paused the Laker game to write that post and when I went back the DVR had ended the game and dumped it in never never land. I hate it when that happens.

    My sole consolation is your appreciation. Thanks for that.

  116. bh, I’ve tried using analogies like Jeff’s argument is to Patrick’s as theoretical science is to applied science, quantum physics is to Newtonian physics, Copernican astronomy is to Ptolomean astronomy, etc. Maybe it boils down to Jeff is someone who asks, what did the speaker say, and how should I understand it, while Patrick is someone who asks what is it that I’m reading and how can I use it.

    Not trying to psychoanalyze anyone here, just trying to understand the disagreement, because there does seem to be a disconnect or short circuit or there did, before Woltz decided he had been humiliated, and determined that the only course of action was to run that Jeff Goldstein, “with his olive oil reason and his hymie charm” off the web.

  117. Pablo:

    I hate to argue with dicentra, but this…wins the ‘tubez.

    Oh sure, choose something AFTER the update.

    Also, I am concerned with the timestamps: Mine were at nearly 3 a.m. MT, and Pablo chimes in only two hours later.

    Has it come to this, that we’re losing sleep over PAT?

    What’s a ‘tubez anyway?

    It’s short for “Intartubez,” which is a mangulation of “Intertubes,” which is a mangulation of “Internet.”

    how much of it is deliberate misrepresentation

    This is the third iteration of this debate: number 2 was an effing war zone with scortched earths and stuff. Had you lived through that one, you wouldn’t need to wonder at all. And, like some of us, you’d have seen him grasp the concept quite well, decide that the concept wasn’t useful to him (because then he’d have to walk back WAAAAY too much, and he can’t let Rush see that), and bifurcate onto the Humpty Dumpty ideas you see before you now.

    It’s all deliberate misreprentation, IOW. Look at the live chat and see how handily he ignores plain language from two interlocutors who are answering him in real time. Notice how Locutus (whoever) attempts to engage in good faith, pretty much gets it, and then is derailed by ANSWER THE QUESTION!

  118. Mr. Frey has a pathological need to be right (or at least perceive his own correctness) all the time. Worst part: there’s no pill for that.

  119. I’ve expressed myself poorly, Ernst. I’ve drawn a physics/chemistry analogy myself to draw attention to the proper level of analysis issue. And, that’s quite often his preferred out. To change the frame.

    Didn’t take it that you were going for a psychological read here.

    At this point though, I am. It just feels appropriate.

  120. Ernst- This is very interesting “Maybe it boils down to Jeff is someone who asks, what did the speaker say, and how should I understand it, while Patrick is someone who asks what is it that I’m reading and how can I use it.”

  121. Dicentra,

    I’ve been around, mostly lurking for all three iterations, and I remember round 2 quite well, as Jeff and I have a number of things in common, and it was the level of personal invective flung at Jeff’s domestic life that motivated me to start commenting here in the first place. I totally agree that at this point it’s deliberate misrepresentation on Frey’s part. I’m not calling him Woltz solely for the perverse satisfaction of making it harder for him to search for references to himself. And I don’t waste my time at his site on the principle that you can’t engage in reasoned debate with an irrational dissembler. On the other hand, I know the disconnect is real because I experienced it myself, and I’ve seen enough comments to know that others have to. The reason I mention all this, is that maybe, if we could understand where honest misunderstanding was creeping in, we could sweeten the well Woltz is busy poisoning.

  122. jls,

    A lot of lawyers started out as history majors. In the historical profession there’s a real temptation for the historian to take a “text” (formerly known as a “source”, but that’s neither here nor there) and ask themselves, “what can I do with this?” when the correct formulation is “what does this text tell me.

    Anyways, that’s part of how I reasoned my way around to Jeff’s point of view.

  123. “I’ve drawn a physics/chemistry analogy myself to draw attention to the proper level of analysis issue. And, that’s quite often his preferred out. To change the frame.”

    Well, the next time he tries to change the frame, somebody ought to point out to him that you don’t have to be a mechanic to drive a car, and you don’t have to be a chemical engineer to repair a motor, but it helps to know something about cumbustion if you’re going to talk about what makes the engine go in the first place.

  124. oh FUCK! In addition to commenting too much, I think I broke the blog again Forgot to close the italics at the end of 123. I think I’l slink away now.

  125. Either I didn’t or somebody intervened. In any event, I’m still slinking away because its bad enough that I talk to myself, but when you start commenting about your own fucking comments, you’ve really got problems.

  126. mortuus equus, when you were equus vivens your name wouldn’t happen to have been Khartoum, would it?

    How’d you know?!

  127. Maybe it boils down to Jeff is someone who asks, what did the speaker say, and how should I understand it, while Patrick is someone who asks what is it that I’m reading and how can I use it.

    Which is an understandable approach for a lawyer or competition debater, but they should also understand that as effective or necessary as it may be to win a case or debate it is not necessarily an honest or good faith approach.

  128. That first paragraph is supposed to be block quoted.

    Moar coffee, plz.

  129. Jeff, E.S., et al.: We’re in agreement. A “plain meaning” rule assumes that the actual words and their plain and ordinary meaning is the most reliable guide to understand what the legislature said, i.e., intended. Moreover, it appears to me that we were addressing the same concern, but I think that we were approaching it from different ends. It’s fair to say textualists worry that judges will highlight one legislator’s voice and privilege it over the corporate voice, while intentionalists worry that a judge will privilege his own voice over the corporate voice. Even assuming that the interpretive acts are made in good faith, both circumstances should be avoided.

    What’s more, Jeff’s larger point–Scalia is disingenous about his method–is not only well taken, but one that I must concede (at least, until Jeff’s point is rebutted). A little research on my part revealed the following from a law review article written by Scalia:

    In my view, the theoretical justification for Chevron is no different from the theoretical justification for those pre-Chevron cases that sometimes deferred to agency legal determinations. As the D.C. Circuit, quoting the First Circuit, expressed it: “The extent to which courts should defer to agency interpretations of law is ultimately ‘a function of Congress’ intent on the subject as revealed in the particular statutory scheme at issue.”” [footnote] An ambiguity in a statute committed to agency implementation can be attributed to either of two congressional desires: (1) Congress intended a particular result, but was not clear about it; or (2) Congress had no particular intent on the subject, but meant to leave its resolution to the agency. When the former is the case, what we have is genuinely a question of law, properly to be resolved by the courts. When the latter is the case, what we have is the conferral of discretion upon the agency, and the only question of law presented to the courts is whether the agency has acted within the scope of its discretion— i.e., whether its resolution of the ambiguity is reasonable. As I read the history of developments in this field, the pre-Chevron decisions sought to choose between (1) and (2) on a statute-by-statute basis. Hence the relevance of such frequently mentioned factors as the degree of the agency’s expertise, the complexity of the question at issue, and the existence of rulemaking authority within the agency. All these factors make an intent to confer discretion upon the agency more likely. Chevron, however, if it is to be believed, replaced this statute-by-statute evaluation (which was assuredly a font of uncertainty and litigation) with an across-the-board presumption that, in the case of ambiguity, agency discretion is meant.

    Hon. A. Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 516 (1989) (quoting Process Gas Consumers Group v. United States Dep’t of Agric., 694 F.2d 778, 791 (D.C. Cir. 1982) (en banc) (quoting Constance v. Secretary of Health & Human Servs., 672 F.2d 990, 995 (1st Cir. 1982)), cert. denied, 461 U.S. 905 (1983)).

    BTW, Chevron deference is a canon of statutory construction concerning how much a court must defer to the interpretation of a statute by the administrative agency charged with enforcing it.

    Yet, in the criminal law context, Scalia takes issue with resort to legislative purpose to make sense of ambiguity. Begay v. United States, 553 U.S. 137, 152 (2008)(Scalia, J., concurring) (”The Court supports its argument with that ever-ready refuge from the hardships of statutory text, the (judicially) perceived statutory purpose.”); United States v. Santos, 128 S.Ct. 2020, 2025 (2008) (Scalia, J.) (Rule of Lenity “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them”).

    To the best of my knowledge, this inconistent methodology is not explained. What is more, Scalia’s law review article is contrary to his remarks at the Catholic University, linked by Jeff, above. Although I could attempt to justify these disparate approaches, any such justification would arise out of considerations independent from the text and wholly attributable to the interpreter’s inclinations. Indeed, I think the Rule of Lenity is a wise convention to protect an accused’s due process rights, but it is not mandated by the meaning of the text.

    However, Scalia’s approach to administrative law is much more troubling. As I read it, some ambiguities may be resolved by the judge’s use of convention, while others are resolved by looking to the legislature’s intent to determine if they intended to delegate decision-making. The best way that I can think to harmonize the law review and his Catholic University remarks is that in the latter case, he was speaking somewhat hyperbolically, so as to reinforce his commitment to “plain meaning.” (It is possible that in the seven years between the article and his speech, Scalia changed his mind or refined his method, but I don’t have evidence to support such a conclusion.) But it remains the case that, under Scalia’s view, resort to legislative intent is permissible in some circumstances (administrative law), but in others, it is not (criminal law).

    Aside: When I noted this inconsistency on Patterico, it fell on deaf ears. When I raised the issue again, I was banned and my post deleted. (I don’t really take issue with being banned; a host’s bandwith is his own to do with as he sees fit.) I am grateful that I have not received the same treatment here.

  130. I have just been reading about the “Everyone Draw Muhammad ” day and thinking how it relates to the conversation on this thread. Here’s a good article:

    http://pajamasmedia.com/zombie/2010/05/20/the-new-free-speech-movement/

    “This is not an argument over the right to be “provocative” or “offensive”; rather, is it something much more significant — an argument over who gets to determine what counts as provocative or offensive in the first place. ”

    In other words: Who gets to assign meaning in the communication process. “Islam” is asserting it’s right to determine what you mean by your drawings and thus dictating (at risk of death) your range of communication options.

    A timely example of Jeff’s thesis in action.

  131. When I noted this inconsistency on Patterico, it fell on deaf ears. When I raised the issue again, I was banned and my post deleted.

    Shocking. Did you threaten anyone with death, perhaps by suggesting that you’d provide a tree, Andrew?

    Has anyone ever seen Charles Johnson and Patrick Frey in the same room?

  132. What would Patrick Frey say?

  133. Islamists is perhaps a better term for accuracy’s sake than “Islam” in this proposition ” ‘Islam’ is asserting it’s right to determine what you mean by your drawings…” jls, so “Islamists are asserting…” or even “Some Islamists are asserting…” as we might presume at least some other islamists aren’t paying attention as they’re currently too preoccupied with dodging Hellfire missiles or planting IED’s alongside roads in the Af/Pak region.

  134. “When I [Andrew] noted this inconsistency on Patterico, it fell on deaf ears. When I raised the issue again, I was banned and my post deleted.”

    How very thought-police-ish.

    “Has anyone ever seen Charles Johnson and Patrick Frey in the same room?”

    For certain, they’re both gone off their trolley

  135. sdferr-

    Point taken and accepted.

  136. This is not an argument over the right to be “provocative” or “offensive”; rather, is it something much more significant — an argument over who gets to determine what counts as provocative or offensive in the first place.

    And now the circle is complete. Jeff could post a link back to zombie placed next to a link to his hot air essay and simply entitle the whole thing “c’mon people, keep up!”

  137. Wow. Banned? Really? For doing research and trying to concretize these arguments by pointing to law?

    Listen: I am not attacking Scalia. I’m simply pointing out that what he claims to be doing is linguistically incoherent and why. Scalia is not alone: in fact, this formalistic approach to interpretation — returned to by way of the post structuralists, ironically (and re-popularized in the academy by way of reader response and, even more ironically, Stanley Fish, et al, at Duke in the 80s) — is all too common as legitimated by the academic (and legal) establishments.

    Frey’s attempts to rebut have run the gamut, settling finally on a complaint that by using the language of semiotics to discuss a semiotic enterprise, I am arguing by definition and assertion — and that my arguments exist in some rarefied intellectual strata that lies far beyond the “real world” and the “real world concerns” of hard working, “real” people who just hope to put away gangbangers and rapists, and are thwarted by pie-in-the-sky “theorists” like those who insist on having the word “word” defined for purposes of talking about how a “word” works.

    He also want to play up the argument as an attack on Scalia, then pit my qualifications for speaking on the topic with Scalia’s own.

    For my part, I just want to make sure people understand what’s at work, and why understanding what’s at work matters. Andrew writes:

    It’s fair to say textualists worry that judges will highlight one legislator’s voice and privilege it over the corporate voice, while intentionalists worry that a judge will privilege his own voice over the corporate voice. Even assuming that the interpretive acts are made in good faith, both circumstances should be avoided.

    — to which I’d say that the worry of “textualists” is unfounded — and in fact is only an issue to those who don’t understand intentionalism; while the intentionalists’ concern is very real, given that the “textualist” methodology, as they describe it, allows them to dismiss the intent of the authors, leaving the requisite intent needed to make language language to be attached somewhere, and by some agency other than the person whose message is supposedly being “interpreted.”

  138. I’m really tempted to highlight Andrew’s 129, for the banning. After watching Frey in post after post repeat the canard that I hadn’t dealt with his questions (not only had I, but I’d do so from so many angles that I felt his questions and I were married, and we liked to experiment), I delight in the irony of his having ignored and then banned a direct response from someone other than me, who had no ax to grind and who (my gut tells me) is far more amenable to the textualist argument than am I.

  139. Hey Jeff,

    Would you mind elaborating on the functionalist/formalist distinction you’ve made over the course of this post and comment thread? Many Thanks. (Or not. Because maybe you have other, better things to do and it’s not like I can’t go and look it up for myself.)

  140. Don’t highlight it. I may have spoken too quickly. I went back to where I believed my post had been deleted, and it is there now, even though I could not see it on Tuesday. This, along with my inability to post other comments, may have been explained by the site’s transition to new servers. Given this innocuous explanation, I retract my charge.

  141. However, to the best of my knowledge, my point remains unaddressed.

  142. sdferr- Reminds me of Ace.

    Islamists attacked and killed by drawings of Muhammad and Hellfire missiles but mostly Hellfire missiles.

  143. Drawing of Muhammad: “Hi, Patrick”

    Patrick Frey:

    Patrick Frey:….” Sure, if you define a word as a “sign” having meaning only because its utterer intended it to have a particular meaning — if you define the word’s meaning according to the utterer’s intent — then, sure, anyone who claims to be interpreting “words” must necessarily be tying his interpretation to the speaker’s intent.”

    Drawing of Muhammad: “Hi, Patrick”

    Patrick Frey:

    Patrick Frey: …..”If one takes issue with that argument, they must confront it head-on — and address the problems I have discussed above relating to 1) the impossibility of assigning a single intent to a text that was created by people with competing, and sometimes diametrically opposed, intentions — as well as 2) the problems associated with ascribing an intent to a text that was ratified by idiots who didn’t even read it.”

    Drawing of Muhammad: “Hi, Patrick”

    Patrick Frey: ANSWER THE QUESTION

  144. Please allow me to repost a comment that I made in response to Frey.

    Thank you for responding to my point (and for graciously accepting my apology and correction). After our emails last night, it struck me that we were in agreement. This is uncanny, because I am in agreement with Goldstein, too.

    To explain these seemingly inconsistent positions, I think I’ll have to lay all of my cards on the table. Hopefully, this might enable some consensus.

    As a threshold matter, I’d like to say that I’ve found both Frey and Goldstein to be challenging, insightful, and sharp-tongued interlocutors. Although I cannot speak to anyone else’s experience, both have treated me fairly, respectfully, and I think, were intellectually honest in responding to my arguments. What is more, Frey graciously accepted my apology and correction for when I claimed elsewhere that I had been banned. Our email exchange made clear what I had already presumed, which was that I was mistaken in this regard. Frey did not ban me or delete my comments.

    Turning to the matter at hand, it seems to me that most of the dispute centers around the term “legislative intent.” In legal circles, this is both a term of art and a code word, i.e., a shibboleth. The passage from Scalia’s law review article quoted by Frey above, reflects this latter meaning and usage. In this view resort to “legislative intent” to construe a statute is an illegitimate interpretive act. By looking to statements of intent outside of the text of the statute, the interpreting judge glosses over, or even substitutes, the words of a statute with a “fictional, presumed intent,” that is generated entirely by the judge.

    Scalia, however, uses “intent” in a different manner later on in the same law review article. He concludes with the following:

    There is one final point I wish to discuss: What does it take to satisfy the first step of Chevron – that is, when is a statute ambiguous? Chevron becomes virtually meaningless, it seems to me, if ambiguity exists only when the arguments for and against the various possible interpretations are in absolute equipoise. If nature knows of such equipoise in legal arguments, the courts at least do not. The judicial task, every day, consists of finding the right answer, no matter how closely balanced the question may seem to be. In appellate opinions, there is no such thing as a tie. If the judicial mentality that is developed by such a system were set to answering the question, “When are the arguments for and against a particular statutory interpretation in equipoise?,” I am certain that the response would be “almost never.” If Chevron is to have any meaning, then, congressional intent must be regarded as “ambiguous” not just when no interpretation is even marginally better than any other, but rather when two or more reasonable, though not necessarily equally valid, interpretations exist. This is indeed intimated by the opinion in Chevron – which suggests that the opposite of “ambiguity” is not “resolvability” but rather “clarity.” [Footnote] Here, of course, is the chink in Chevron’s armor — the ambiguity that prevents it from being an absolutely clear guide to future judicial decisions (though still a better one than what it supplanted). How clear is clear? It is here, if Chevron is not abandoned, that the future battles over acceptance of agency interpretations of law will be fought. Some indications of that can already be found in Supreme Court opinions.

    I cannot resist the temptation to tie this lecture into an impenetrable whole, by observing that where one stands on this last point — how clear is clear — may have much to do with where one stands on the earlier points of what Chevron means and whether Chevron is desirable. In my experience, there is a fairly close correlation between the degree to which a person is (for want of a better word) a “strict constructionist” of statutes, and the degree to which that person favors Chevron and is willing to give it broad scope. The reason is obvious. One who finds more often (as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds less often that the triggering requirement for Chevron deference exists. It is thus relatively rare that Chevron will require me to accept an interpretation which, though reasonable, I would not personally adopt. Contrariwise, one who abhors a “plain meaning” rule, and is willing to permit the apparent meaning of a statute to be impeached by the legislative history, will more frequently find agency-liberating ambiguity, and will discern a much broader range of “reasonable” interpretation that the agency may adopt and to which the courts must pay deference. The frequency with which Chevron will require that judge to accept an interpretation he thinks wrong is infinitely greater.

    As I read this, when Scalia mentions “clarity,” he is talking about a different “legislative intent.” This is a more generic usage, something approaching “authorial intent.” This is revealed by his emphasis on “how clear is clear.” He’s referring, of course, to “plain meaning,” and what’s he’s asking is how clear, i.e., unambiguous, is Congress’ intent from the plain meaning of the text? If it is clear, it governs.

    If so, then his remarks that he doesn’t care about “legislative intent” is disingenuous if he is referring to the intent that is revealed by the plain text of the statute. If he is referring to the fictious, presumed intent, he is not. I believe that he is referring to the latter, in which case, his remarks are not out of line with anything else that he has said.

    I do not purport to understand the nuances of authorial intention in semiotics, but I believe that Goldstein is referring to “legislative intent” in this more generic sense, rather than the loaded term it has become for some legal practitioners. Assuming that is the case, then Frey and Goldstein are attacking the same problem from two different ends.

    In another comment on Goldstein’s site, I said:

    [T]extualists worry that judges will highlight one legislator’s voice and privilege it over the corporate voice, while intentionalists worry that a judge will privilege his own voice over the corporate voice. Even assuming that the interpretive acts are made in good faith, both circumstances should be avoided.

    Goldstein agreed that this was the contours of the argument, but dismissed the textualist concern as unfounded, while the intentionalist worry is warranted because of the textualist methodology.

    After emailing with Frey last night and reviewing his comments, above, I would like to revise my position. What’s at issue is when judges privilege their interpretive voice over the text of the statute. The textualist concern over intentionalism implicates judges who impose their voices over the collective voice as expressed in the text, and who cloak their voices under the voices of individual legislators, staffers, lobbyists, and committees. See, e.g., Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 568 (2005) (Kennedy, J.) (“Judicial investigation of legislative history has a tendency to become, to borrow Judge Leventhal’s memorable phrase, an exercise in ‘looking over a crowd and picking out your friends.’”). The intetionalist critique of textaulism is that it privileges the voice of the judge over the collective legislative voice, and that “plain meaning” readings fail to take into account the context in which the collective body spoke.

    If that is true, then we have a consensus, albeit a small one. No one wants a judge to impose their voice over the law as enacted by the people’s representatives.

    The disagreement is over what methodology is the best to effectuate the laws and not obliterate them with alternate meaning/intent in the interpretive act.

    I would suggest that both methodologies must be merged to get the best of both worlds, to the extent it is possible.

    In Allapattah, Kennedy states the following:

    As we have repeatedly held, the authoritative statement is the statutory text, not the legislative history or any other extrinsic material. Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legislature’s understanding of otherwise ambiguous terms. Not all extrinsic materials are reliable sources of insight into legislative understandings, however, and legislative history in particular is vulnerable to two serious criticisms. First, legislative history is itself often murky, ambiguous, and contradictory. Judicial investigation of legislative history has a tendency to become, to borrow Judge Leventhal’s memorable phrase, an exercise in “‘looking over a crowd and picking out your friends.’” See Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983). Second, judicial reliance on legislative materials like committee reports, which are not themselves subject to the requirements of Article I, may give unrepresentative committee members–or, worse yet, unelected staffers and lobbyists–both the power and the incentive to attempt strategic manipulations of legislative history to secure results they were unable to achieve through the statutory text.

    545 U.S. at 568.

    This is similar to the statutory construction method employed by California state courts:

    As in any case involving statutory interpretation, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose. [Citation.] The rules for performing this task are well established. We begin by examining the statutory language, giving it a plain and commonsense meaning. [Citation.] We do not, however, consider the statutory language in isolation; rather, we look to the entire substance of the statutes in order to determine their scope and purposes. [Citation.] That is, we construe the words in question in context, keeping in mind the statutes’ nature and obvious purposes. [Citation.]We must harmonize the various parts of the enactments by considering them in the context of the statutory frame work as a whole. [Citation.] If the statutory language is unambiguous, then its plain meaning controls. If, however, the language supports more than one reasonable construction, then we may look to extrinsic aids, including the ostensible objects to be achieved and the legislative history. [Citation.]

    People v. Cole, 38 Cal.4th 964, 974-75 (2006).

    If we begin with the presumption that the legislative’s authorial intent is best expressed through the plain language/words/marks, etc. in any given statute, then this method of analysis is far superior to anything else. I would argue that, as a practical matter, a legislature does not traffic in “secret meanings,” and if it did, then as a matter of due process and fundamental fairness to the people subject to the laws, such secret meanings should be disregarded.

    Kennedy’s and the California courts’ hybrid methodology gives sufficient flexibility to the courts to interpret the laws while giving due deference to the legislature on separation of power grounds.

    Again, the basic principle that I would adhere to is that the courts interpret the laws to effectuate the legislature’s intent, but that interpretation must, if possible, be confined to the intent that is revealed in the plain, clear, and unambiguous meaning of the text. Where the text is ambiguous, the Court is required to inquire into evidence of the legislature’s intent that is external to the text itself. It is difficult to prescribe what such an inquiry should look like, because every circumstance will be unique. In the case of certain statutes that implicate constitutional freedoms, such as penal codes, speech regulation, etc., any ambiguity or vagueness that does not put a defendant on notice of what behavior is proscribed or regulated cannot count against that defendant, i.e., tie goes the defendant.

    This methodology is not certain, because it requires judges to consider concepts and conventions outside of the text. However, the methodology has the virtue of pragmatism, which, in the context of a profession that is geared to resolve disputes, cannot be understated.

  145. Nice work Andrew!

    Are you available to negotiate a middle east peace settlement.

    A small additional point: My observation is that the textualists see the issue as substituting “perceived intent” for the “plain text reading” whereas the intentionalists see the process as using intent to fix the meaning of the “plain text reading” whenever there is ambiguity. A subtle but important distinction. Not at odds with your analysis but expressed differently.

  146. I would suggest that both methodologies must be merged to get the best of both worlds, to the extent it is possible.

    Intentionalism is not a methodology. Until you understand or accept that, you haven’t understood intentionalism.

    It’s also heartening to know that Frey is back to doing what does best: taking the conversations offline behind the scenes, pleading his case in private email exchanges. I submit this is where he does his best work; that he pretends to believe intentionalism is referencing some kind of specific loaded legal idea of legislative intent is either a testament to his being dishonest or remarkably obtuse: I have defined and re-defined and re-re-defined the terms; I have pointed to the semiotic and linguistic basis for this argument over and over and over again; and in fact, this “debate,” such as it is, began outside the legal realm.

    The way Frey has described and championed textualism is linguistically nonsensical. There is no “middle ground” to reach: textualism conceives of a text working in a way it doesn’t and can’t work. It is a ruse. I believe I’ve show how and why. Over and over and over and over and over and over and over again.

    Period. End of discussion.

  147. It’s also heartening to know that Frey is back to doing what does best: taking the conversations offline behind the scenes, pleading his case in private email exchanges.

    Oh, like this?

  148. RUSH WAS RIGHT!!!

  149. That’s impossible, RUSH DIDN’T ANSWER ALL THE HYPOTHETICALS IN TRIPLICATE!

  150. I have been engaged on Patterico’s site in a slightly interesting discussion:

    After a response from Patterico:

    I understand you agree that Jeff’s ideas about privileging the speakers intent is the proper approach in general communication:

    “This is a proper approach in many scenarios.” P.Frey

    But breaks down when it come to legislation:

    “Private intent cannot trump public meaning, or there is no rule of law — only rule by men.” P.Frey

    The question comes when “public meaning” is not clear or is ambiguous. How do we gain clarity and assign meaning?

    After a bit I posed the following thought problem:

    Imagine three wheels, each imprinted with a word to form a three word sentence. When you turn the wheels the words stay the same but alternative meaning are shown for each word.

    You discover that it is possible to set the wheels in such a way as to form different meanings from the fixed three words.

    Given the three following scenarios how would you go about selecting the meaning to associate with the three word sentence?

    A. You found the device in the woods.
    B. Your friend gave you the device.
    C. Your church choir gave you the device.

    Awaiting a response.

  151. All Frey means by “public meaning” — as I believe I’ve shown repeatedly — is a belief on the part of the interpreter that the intender has agreed to signal his intent conventionally, or in a way he believes the vast majority of people will interpret what he signifies.

    Public meaning as Frey would have it, on the other hand — and I have to ask why it is, when he can have the same thing while acknowledging from whence it comes (it is intended, and to interpret it we acknowledge that intent and thus not wind up championing a dangerous idea of language) — becomes a matter of consensus and voting and will to power: why not just vote on what something means, and take it on faith that each voter is voting not his own interests, but for what he truly believes the meaning to be?

    Everyone sees the danger in that. Which is why those who champion that kind of methodology want to keep hidden what it is they are doing; either that, or they just don’t recognize what it is they are doing.

    Frey can no longer claim membership to that latter group. He’s been shown the error of his ways. Now he’s just holding on for whatever reasons he has to hold on.

    Private intent cannot trump public meaning, or there is no rule of law — only rule by men.

    Frey continues to go out of his way to try to paint intentionalism in the most difficult to understand light.

    “Private intent” would presumably be an unsignaled intent, and so not one we need worry about from the perspective of legal interpretation, for reasons I’ve made clear time and again. “Public meaning” is merely a restatement of an intentionalist principle poorly conceived: it means what the public believes the authors/writers/utterers most likely meant, as determined by how they signaled. Or in other words, they conceive of “public meaning” as an expression of legislative intent; if they didn’t — if they thought the legislature meant something else entirely, and said that despite what the legislature might have intended, they fucked up and we can now do with their signifiers what we wish to do — they are not “interpreting.” They have decided that the text can mean what they want it to mean.

    It really is that simple — and the rules of language don’t change because lawyers happen to be involved.

  152. It really is that simple — and the rules of language don’t change because lawyers happen to be involved.

    Circumstances came up I had to take a break from the ‘net for a few days…but right at the beginning I saw Frey’s little hissy fit in his own comment thread about “dicentra the syphocant” and how HE and only HE understands JeffG’s “intentionalism” and the “PW hivemind” only pretends to understand it and that we have been arguing in bad faith.

    THAT is the what Frey’s slipping into Captn Queeg territory looks like. He’s an attorney more concerned with “win” than with fact.

    Both sad and alarming.

  153. Reliving that email exchange was enjoyable, Pablo. I’d forgotten how mentally unstable and psychopathic I was — and how “decent bloggers” and commenters galore, many of whom would surprise you, were their identities known, were calling me an asshole and a loser and noting how wrong I was (and how potentially dangerous I may turn out to be) behind the scenes. Likely in email exchanges like that one started out — where favor is curried, concessions are made, victimhood is proclaimed, and editorial comments about the “facts” of my poor character are sprinkled throughout.

    Frey tried to run me down personally. For some it worked. But that doesn’t much matter to me, so long as the arguments against what he champions gain purchase — and they do so because I have brought some attention to the subject. This was never about Frey (other than that he seems hellbent on defending the incoherence from the “right” side); proof of that is my having criticized those on the right who went after Bill Bennett, or David Letterman, etc., — just as I’ve always gone after those on the left who make the same mistakes (though oftentimes they aren’t “mistakes” at all).

    I’ve tried to answer every concern; I’ve dealt with every outlier and loaded hypothetical; I invited Frey and his “textualist” readers to define their own terms; and throughout, I have argued on point, with as much patience as I could conceivably muster.

    Not much more I can do really.

  154. Not much more I can do really

    The strawberries, Jeff! It will always be about the strawberries! WHAT DID YOU DO TO THEM??

  155. how “decent bloggers” and commenters galore, many of whom would surprise you, were their identities known, were calling me an asshole and a loser and noting how wrong I was

    This translates loosely as the lurkers support me in email.

  156. Private intent cannot trump public meaning, or there is no rule of law — only rule by men.

    Not that I want to go back there, but doesn’t this argument directly contradict the point he was making with the boy who called his dog “boy” or “blacky” or whatever?

  157. I think that was more about political correctness then legal theory, B Moe. I think the moral of that story is don’t name your dog Nigger if you have or might have black neighbors. I’d ask, but I’m sworn to secrecy in perpetuity, so I wouldn’t be able to tell you anyway. Or something.

  158. Summary: (Attempted synthesis between Patterico and Goldstein)

    Patterico argues that we have a choice of methodologies when it comes to communication: “Intent based” and “Text based”

    “Intent based”: you look through the words to see into the mind of a particular speaker.

    “Text based”: you look through the words to see into the mind of a generic speaker.

    Patterico concedes that in general communication it is appropriate to use “intent based” because there is a particular speaker to interpret ( it allows communication of code, irony, etc.). When it comes to legislation the “speaker” is a group of people and there is no particular mind to see into so we substitute a generic speaker. To do otherwise would be to privilege “private intent” over “public meaning”.

    “Private intent cannot trump public meaning, or there is no rule of law — only rule by men.” -Patterico (5/22/2010)

    J. Goldstein argues that intent is implicit in all communication. Whether you use “Text based” or “Intent based” when you “look through the words to see into the mind” you are interpreting for the purpose of discovering intent. The only difference is whether you are interpreting a particular speaker or a generic speaker.

    He concedes that when it comes to legislation the “corporate intent” is difficult to discover. He also concedes that it is proper to conceptually substitute a generic speaker as long as the “community conventions” allow for a reasonable definition. He is a pragmatist in this area and supports whatever works.

    Goldstein asserts that there is no important difference between “Intent based” and “Text based” when properly understood and defined as above. His concern comes when Textualist improperly describe what they are doing and claim they can discover meaning without resort to intent.

    ”Again, everyone is an intentionalist. The trouble is with the description of the textualist methodology and its institutionalization: because such a description errs in noting what it is doing, and that error of description leads to errors of application (compare: the text means whatever its “words” “say” regardless of the intentions of those who wrote it; vs. the text as interpreted appears to signal the intent of its writers/ratifies thus) that are dangerous and easily exploitable.” J. Goldstein (5/19/2010)

    Resolved:

    When Textualists: “look at the statutory structure and hear the words as they would sound in the mind of a skilled, objectively reasonable user of words.”

    They are also saying they: “look at the statutory structure and assign meaning to the words as they would be understood in the mind of a (skilled, objectively reasonable) generic person.”

    They are also saying they: “look through the words to see
    into the mind of a generic speaker”

    AND it’s all good.

  159. Jeff-

    I posted the above #159 on the Patterico site.

    I took the liberty of summarizing what i believe to be the current point of contention and offered a resolution.

    Do you agree with my characterization of your perspective?

  160. “Text based”: you look through the words to see into the mind of a generic speaker.

    Oh, very wierd. The generic speaker is a construct one must make up out of one’s own preconceptions and preferences.

    I can see how that might have its attractions, for those who must bedeclare themselves right at all costs.

  161. Slartibartfast-

    Remember, mind reading isn’t easy under any circumstance and especially so when dealing with a brain dead legislature..

    “The generic speaker is a construct one must make up out of one’s own preconceptions and preferences.”

    Agreed, but you would be limited by the following constrain:

    “skilled, objectively reasonable user of words”

    And presumably be required to maintain context and convention to perceive the “corporate intent”.

  162. I don’t agree with the resolution, no. Conceiving of a specific intent promulgated conventionally is not the same as conceiving of a generic speaker who, as a construct, could “mean” whatever you can “reasonably” do with his words.

    “Pass the salt” does not mean both “give me the salt” and “walk around and by the salt” in a specific instance intended by a specific intender unless he wishes it to mean both. Your job as an interpreter, should you wish to interpret, is to decide what you think he meant.

    Now, you can reasonably conclude he meant both. But that’s not the same as saying that what he said means both.

    He meant appeals to a subject. What he said appeals to an object.

  163. Pingback: “The Subjects of the Constitution”

  164. Jeff- (Patterico’s response)*

    He finds deep meaning in this comment attributed to you:

    “Let me be clear: as I have always said, legal interpretation can ignore intent if it is not clearly expressed in the text.”

    He takes this to mean that when communicating on legal matters intent is not implicit or required in the communication process:

    I confess that I find it impossible to reconcile this view — that interpretation of any kind, legal or otherwise, need not take account of unsignaled intent — with his oft-stated view over the years that “interpretation” must always appeal to the intent of the author.

    He goes on to add:

    Today’s answer from Goldstein: yes! Yesterday’s answer from Goldstein: NO!

    And concludes:

    He issues new (and no doubt temporary) rules about how we can all of a sudden ignore unexpressed intent in conducting “interpretation” which he has always claimed must appeal to intent.

    Care to correct the record and help Patterico reconcile this “impossible to reconcile” philosophical position.?

  165. jls, a brief perusal of your exchanges over at PP leads me to think it possible that you’d do well to leave off representing what “Jeff” thinks, believes, propounds as linguistic theory and etc., and stick to what jls thinks, believes, propounds as linguistic theory and so on. That is, unless you have some entre into Jeff’s mind that no-one else is aware of, “mind reading [being not] easy under any circumstance”. Meaning well, contrary to current progressive political theory, isn’t equivalent to doing well.

  166. Jeff-

    Conceiving of a specific intent promulgated conventionally is not the same as conceiving of a generic speaker who, as a construct, could “mean” whatever you can “reasonably” do with his words.

    Agreed, but as a practical matter when interpreting a group effort (legislators/ratifiers) we aren’t limited to a “specific intent promulgated conventionally”. We have the full range of intent cues to deal with.

    Your job as an interpreter, should you wish to interpret, is to decide what you think he meant.

    I am sure you saw this coming but who is the “he”. When it is group (writers/ratifiers) effort it is an amalgam of “intenters”. When you look through the words to discover the intent in the mind of the intenders you come to a crowded place. It seems you have only one of two choices: Choose a representative sample from the group or construct a conceptual amalgam (generic speaker).

    He meant appeals to a subject. What he said appeals to an object.

    Can the conceptual amalgam (generic speaker) be construed as the subject of the meaning? If so then how can we bound the “meaning” one could “reasonable” associate with “his” words. Would there be any difference in the “bounding” if we chose a specific representative?

  167. sdferr-

    Your point is well taken and i will bear that in mind. In my defense however, i just couldn’t resist. When PP interprets Jeff as saying that “legal interpretation can ignore intent” it boggles the mind.

    I may not be a mind reader but can figure that one out without resort to extra physic abilities.

  168. “…it boggles the mind.”

    Which is sort of the point, since I very much doubt that Jeff’s own mind would be boggled in quite the same way and therefore his own responses to misrepresentations of his position would tend to be more straightforward, cut to the chase the quicker, and stand his intended position in better stead. See?

  169. Frey is still applying intentionalism as if it’s a set of rules that can and therefore should be worked around.

    Which is an understandable POV, if you do that kind of thing for a living.

  170. “legal interpretation can ignore intent”

    A better way of putting that: Legal interpretation adheres to legal convention, as does writing legislating.

    If you’re not adhering to convention to signal your intent in legislating, you’re doing it wrong. Same goes if you’re interpreting outside convention. It is technical writing, and it cannot serve its purpose any other way.

  171. Congressional oath of office says:

    I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

    [Mental reservation or purpose of evasion being] secret intentions reserved to the mind of the intender which would constitute an example of what is to be ignored for the purpose of interpretation, I think.

  172. “…it boggles the mind.”

    I do see!

    When i read Jeff’s work it makes me think of how a turtle must feel when he sees a gazelle.

    “Gee” wish i could do that!

  173. Conversation between a Gazelle, a Bulldog and a Turtle:

    Turtle: Would you mind passing the salt?

    Gazelle: “Pass the salt” does not mean both “give me the salt” and “walk around and by the salt” in a specific instance intended by a specific intender unless he wishes it to mean both. Your job as an interpreter, should you wish to interpret, is to decide what you think he meant.

    Now, you can reasonably conclude he meant both. But that’s not the same as saying that what he said means both.

    He meant appeals to a subject. What he said appeals to an object.

    Bulldog: Wrong-o, pal. I guess when you think you can tell Scalia he cares about the legislative intent when he says he doesn’t, you think you can misstate my views this badly and get away with it. But, to quote Goldstein: “you don’t get to define my intent.” I know what I meant and this is not it.

    Turtle: Houston we have a problem.

  174. Ya know, Goldy, you have great comedic talent. Coherent thought, not so much.

  175. Hell of a contribution there, gary.

  176. but as a practical matter when interpreting a group effort (legislators/ratifiers) we aren’t limited to a “specific intent promulgated conventionally”. We have the full range of intent cues to deal with.

    As with irony, the intent can be multifaceted. But it is still singular, in that it is the one intent that is now textualized in signs.

    I am sure you saw this coming but who is the “he”. When it is group (writers/ratifiers) effort it is an amalgam of “intenters”. When you look through the words to discover the intent in the mind of the intenders you come to a crowded place. It seems you have only one of two choices: Choose a representative sample from the group or construct a conceptual amalgam (generic speaker).

    The amalgam isn’t conceptual: it IS the intenders, taken together.

    Calling that a “generic speaker” is incorrect. You can call it something like a “representative intender,” if that makes you feel better, and so long as you keep in mind that it is an approximation on your part of what you believe the intenders as a group meant. And it has the added bonus of reminding you that you are interpreting something intended, not merely something uttered and then reduced to signifiers.

    When PP interprets Jeff as saying that “legal interpretation can ignore intent” it boggles the mind.

    No it doesn’t. Frey, for all his talk of desiring plain meaning, has taken to trying his hand at semantics. What he’s doing, however, is both hamfisted and disingenuous — pretty much standard fare for him these days.

    To suggest that I have argued that “legal intepretation can ignore intent” is to reinforce what I’ve been saying since the beginning: Frey doesn’t understand intentionalism. Only now, we know that he does. So the new formulation has to be Frey is a liar. Q.E.D.

    Interpretation can’t ignore intent because interpretation relies on intent for its very being. If this is where Frey has led people, he’s done a huge disservice to classical liberalism — all in an effort to save face (and retain his own claim to power over the texts of others).

    By advocating for a democratic view of interpretation, Frey has proven himself a tyrant: tyranny of the majority takes claim of the meaning of an individual. Conversely, advocating for a authoritarian view of interpretation (as SEK has described what it is I do) means refusing to allow a given “interpretive community” (eg., progressives) lay claim to your meaning (“states rights” = “PRO SLAVERY!”).

    I hope it’s worth it, Frey. Because all you’ve shown, in all your special pleading, is you are actually worse than I thought you were: originally, I tried to correct the errors in how you were conceiving of language, under the assumption that you hadn’t thought through the implications of what it is you believe you’re doing when you interpret (and when you then legitimate a model of interpretation); now it’s clear that you know what it is you are doing and have decided that you wish to do it anyway. Your intent — and the intent of some amalgam of “reasonable people” will determine (instead of interpret) what someone else means.

    Power. Leftism.

  177. Jeff-

    As with irony, the intent can be multifaceted. But it is still singular, in that it is the one intent that is now textualized in signs.

    Understood, my intent was to emphasis the “promulgated conventionally”. Recognizing the legal community works to standardize their speech acts but as a practical matter ambiguities persist. I don’t think there is an issue there but this perhaps goes to the core:

    The amalgam isn’t conceptual: it IS the intenders, taken together.

    My first thought is how could an amalgam NOT be conceptual (something thought or imagined). Obviously, each of the group that comprises the amalgam are intenders but “taken together” must be a construct. Mr. Amalgam just doesn’t exist. Or perhaps he does. If you are saying that the important idea is for intent to be anchored by a discoverable reality and no matter the complexity the intenders “taken together” do exist and their intent is theoretically discoverable. Ok? If so, i accept that. Would you accept that “people to the n’th power” presents a formidable challenge when interpreting and as a practical matter it is acceptable to shape a “conceptual amalgam” which incorporates all known information about the “intenders, taken together” and use this construct when assigning meaning.

    As to the naming of the amalgam: I offered “generic speaker” in the sense of “general speaker”. My concern with “representative intender” is that it can be construed to mean a particular speaker from the group representing the whole. How about we go with “intenders, taken together” for now and find a more elegant term later.

    How about this:

    Resolved:

    “Text based”: you look through the words to see into the “mind” of the “intenders, taken together”.

    AND it’s all good.

  178. My first thought is how could an amalgam NOT be conceptual (something thought or imagined). Obviously, each of the group that comprises the amalgam are intenders but “taken together” must be a construct.

    No. What IS a construct is that you need to think of something like an amalgam to describe what a bunch of intenders signifying approximates.

    It is in trying to describe what it is you do that you run into problems, as we’ve seen with the textualists.

    Intentionalism just is is my best effort at Resolved. That I’ve been saying just that since the very beginning of my discussions of intentionalism on this site (dating back to early 2002) hasn’t really resonated with certain people; and yet it remains the best way to put it, I think.

  179. Intentionalism just is is my best effort at Resolved.

    The value of putting it like that, to me, is that is draws a clear line between discussions of various methods of interpretation and discussions of what is and what isn’t interpretation in the first place.

  180. Thus, the journey ends.

    Regards,
    -jls

    Ps… Looks like i have achieved total banishment at PP and the thread scrubbed to protect the innocent. Weird!

    I guess if communication were easy everyone would be doing it… Oh wait.

  181. Update: The problem at PP appears to have been a technical issue and not “total banishment” as suggested above. I am sorry for the inadvertent mis-characterization. PP suggests that i should have contacted him before reaching my conclusion and i agree.

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