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.