November 10, 2010

On intent and vote counting (Or, Patterico yet again misunderstands intentionalism)

In what I’m guessing is supposed to be a shot at me, LA DDA Patrick Frey — in a post ostensibly on Alaska Tea Party candidate Joe Miller’s decision to bring suit demanding that write in votes for Lisa Murkowski spell her name correctly — adds the following to his analysis:

INTENTIONALISM POSTSCRIPT: Note that, under an “intentionalist” argument, when a voter intends to cast a vote for Lisa Murkowski, that is a vote for Lisa Murkowski regardless of what markings appear on the ballot. A voter could write in the words “Joe Miller” and the intentionalists would tell you that the ballot is a vote for Murkowski — as long as the voter subjectively intended to vote for Murkowski. What’s more, they would tell you that any statute mandating otherwise is a “rewriting” of the ballot.

This is yet another illustration of why pure “intentionalism” is unworkable in several legal settings, recounts being one obvious example. What matters is whether the objective evidence of the markings on the paper reflect a vote for a particular candidate, as determined by a reasonable observer. What’s more, if the law says that the ballot is improperly marked, it doesn’t count.

It’s a formalistic approach, to be sure. But a degree of formalism is absolutely essential to making law work.

Sorry, Lisa. Your illiterate voters should not have their votes counted. The Legislature has spoken.

Of course, what this actually shows is that Frey hasn’t understood anything I’ve written on intentionalism. Or if he has, that he is so committed to trying to get the last word that he’ll quite baldly dissemble in order to cast intentionalism in a false light. To wit, let’s look at the characterization of intentionalism Frey offers:

when a voter intends to cast a vote for Lisa Murkowski, that is a vote for Lisa Murkowski regardless of what markings appear on the ballot. A voter could write in the words “Joe Miller” and the intentionalists would tell you that the ballot is a vote for Murkowski — as long as the voter subjectively intended to vote for Murkowski. What’s more, they would tell you that any statute mandating otherwise is a “rewriting” of the ballot.

This is, of course, entirely wrong. An intentionalist would tell you that the ballot is most likely a vote for Joe Miller, while explaining to you how it is linguistically possible that what amounts to a vote for Joe Miller was actually intended as a vote for Lisa Murkowski — and why the distinction matters.

When a voter intends to cast a vote for Murkowski, she intends to cast a vote for Murkowsi. Regardless of what she ultimately signals to others, what she meant doesn’t change simply because she failed to signal that intent in a way that is readily observable. Therefore, what changes is not what she meant to do — her meaning is still what it was and is — but rather our perception of what she meant to do, decided upon in a context wherein we have few cues other than established conventions for vote counting to rely upon in forming that perception/interpretation.

Having said that, nowhere does intentionalism make the claim that the failure to clearly signal your intent has no ill consequences, particularly in settings purposely governed by convention. You may have meant to vote for Lisa Murkowski. But an observer, without a host of other cues, is unlikely to know you meant Lisa Murkowski if what you’ve signaled is “Joe Miller”.

That doesn’t mean we can’t point to instances where this same dynamic is at work — you mean one thing but “say” “something else” entirely (with that something else referencing its precise opposite, at least on the level of signifiers) — and yet your audience knows perfectly well your intent (irony, in fact, often works this way, as does, eg., a double entendre); instead, what this argues is that if what you’re after is having your vote counted, irony on an election ballot is not the best way to help your cause…

That I’ve explained this over and over again, ad naseum, leads me to believe — quite sincerely — that all Frey is interested in at this point is trying desperately to mischaracterize intentionalism for ever new sets of readers coming to his site, in a particularly sad and transparent effort to rehabilitate himself and his constant defense of the kind of formalist linguistic assumptions favored by the left.

In this very real case, the election law as drafted makes no claim that additional “intent” need be determined in the project of filling in an oval, or writing in a name, for a vote to be properly counted. That is, the statute asserts that it is enough that the oval was filled, or the name written out, to determine the intent of the vote. Which is to say that law makers were smart enough to recognize that trying to divine non-conventional intent from ovals or handwriting, without having any other contextual cues about the specific individual voter (other than that s/he presumably meant to cast a vote) is a fools errand.

In other words, lawmakers, in drawing up the relevant election law, decided — and we assume intentionally so, given that the legislation makes no mention of voter intent — that in the vast majority of cases, voter intent would be directly and correctly indicated by what the voter signaled by way of marking the ballot. That is, they decided intentionally that a particular convention for vote counting should be followed, precisely because they recognized that trying to divine the intent of hundreds of thousands individual votes, presented to them with no referent to whom the voter is specifically (and with no additional clue to motivation other than the assumption that the votes were presumably cast by people intending to cast votes), is hardly workable. Therefore, they laid out the rules — the legal conventions for vote counting — in advance, and made the decision that under all circumstances, what comes to count as voter intent is assumed to match what the voter signaled. And those rules require, as a condition for having your vote counted, that you follow the appropriate conventions as laid out by the legislature.

None of which changes that fact that if you meant to vote for, say, Joe Miller, but accidentally or erroneously filled in the oval for Chapman, you still intended to vote for Joe Miller. All that’s happening here is that the legislature has decided as a matter of convention that what you meant, if it wasn’t signaled clearly, won’t count towards (in this instance) Joe Miller’s vote total.

Your intent hasn’t changed. What you meant is still what you meant. That you failed to signal that intent correctly, however, has consequences — here, a vote for the Dem challenger.

So when Frey writes:

A voter could write in the words “Joe Miller” and the intentionalists would tell you that the ballot is a vote for Murkowski — as long as the voter subjectively intended to vote for Murkowski. What’s more, they would tell you that any statute mandating otherwise is a “rewriting” of the ballot.

– he is quite wrong. A voter could write in the words “Joe Miller” and an intentionalist would tell you that the ballot is a vote for Joe Miller in this instance, because that’s what the conventions for vote counting, as decided upon (intentionally so) by the legislature, requires.

An intentionalist would also tell you that the ballot was meant as a vote for Murkowski — and that, as signified in this instance, “Joe Miller” means Lisa Murkowski. How an interpreter is to arrive at that meaning, or would even know to try, in an instance where the conventional signals for voting seem so clearly and obviously met (one of the names a vote counter expects to see is proferred, and the counter has no reason in the context of an election to assume it was offered ironically) , is a different question, one that is in any event already circumscribed by the election law statute.

Frey continues:

This is yet another illustration of why pure “intentionalism” is unworkable in several legal settings, recounts being one obvious example. What matters is whether the objective evidence of the markings on the paper reflect a vote for a particular candidate, as determined by a reasonable observer. What’s more, if the law says that the ballot is improperly marked, it doesn’t count.

It’s a formalistic approach, to be sure. But a degree of formalism is absolutely essential to making law work.

Again, given the amount of attention I’ve alreay dedicated to addressing these points, this is remarkably incorrect: here, had the legislature intended for voter intent to be the deciding factor in determining what an official ballot meant, they presumably would have written such a condition into election law, and then laid out a procedure whereby in those rare instances where votes were unclear, they’d be able to query the voter — or at least, have some knowledge of the voter.

In the Gore Florida recounts, this was precisely what was attempted: the Gore people tried to argue that because we were dealing often times with old Jewish voters, they presumably hadn’t meant — intended — to vote for Pat Buchanan.

But of course, there is no way to tell from the ballots whether they did or didn’t, what old Jews were mistaken and which are closet isolationists. What doesn’t change is what each of those voters intended to do. Instead, all that changes is how much credence we give to what we believe they intended to do in a situation whereby we are charged with tallying votes, the majority of which we assume, as a matter of convention (and in Alaska, as a matter of statute) to have been direct signals of voter intent.

That we do recognize voting as an intentionalist endeavor is evident in the changes made to ballots going forward to better protect against mis-signalings of intent.

In vote counting, we follow conventions decided upon by election law. These conventions aren’t accidents of nature; these are rules laid out by legislatures that intend to set conventions to make vote counting easier and more efficient, and to prevent the time consuming effort of trying to divine the individual intentions of millions of voters.

That we can’t tell the difference between a vote intentionally cast and one that, say, gets accidentally punched and included in the returns, doesn’t mean we don’t assume all the votes were intended. Otherwise why would we believe them to be “votes” at all?

I don’t know how many times I’ve noted that, in the vast majority of cases, we rely upon convention as a way to figure out what people mean. And that’s precisely because convention is a shortcut to trying to determine intent. In instances where we have determined it best to rely on convention to determine intent, we are still doing so intentionally. We decided upon the rules that govern vote counting. We decided beforehand what will count as a vote, how, and why. We have also determined that, while voters may erroneously signal what they meant, trying to determine that in the context of vote counting is too onerous an endeavor to undertake.

Nothing here troubles intentionalism at all. In fact, it merely reinforces it. Frey’s initial analysis — that Miller is right with respect to the applicable law — is in fact spot on, as far as I’m concerned. But the reason that’s so is because it is clear that the applicable law never intended for individual voter intent to be divined using any method other than the conventional one of assuming the mark properly signals the intent.

Because what is at play here in the vote counting is the idea that the majority of voters will signal their intent properly; in fact, that’s what we believe a vote to be in the first place — the intentional signaling of a particular choice by an agency capable (and deciding) to make one; and that those who don’t signal their choice correctly are so few as to be (unfortunately for them) negligible in this context.

So while Frey’s initial argument is correct (at least according to my reading of the state’s election law) his follow-on attempt to try to explain how an intentionalist looks at such procedures is decidedly not.

A habit of his, this last.

(thanks to Prof Ruthann R)

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update: A quick note: In the case of the write-in votes, the insistence that names be spelled correctly is a very severe instance of requiring that the law be followed to the letter. If the Lt Governor doesn’t believe that the legislature intended that the law be followed so closely — that doing so would disenfranchise voters the legislature never intended be disenfranchised — he is making an intentionalist argument, namely, that the law meant to allow for slight misspellings.

If he assumes that they did mean to write the statute in just such a way that it punishes those who misspell, but that by his estimation such a statute is too restrictivee, he is giving himself permission to rewrite the law so that it now says what HE wants it to say. It is, at that point, a new text.

****
related?

Posted by Jeff G. @ 12:22pm
197 comments | Trackback

Comments (197)

  1. Good Christ, he’s a thick son of a bitch. Maybe he needs a map drawn out.

  2. Or it could be said that the legislature provided a method for determining intent during voting and that is the method that is to be used to count votes. A situation, limited, in which the normal rules of determining intent do not apply because the general rule has been superseded by a specific rule.

  3. This is yet another illustration of why pure “intentionalism” is unworkable in several legal settings, recounts being one obvious example. What matters is …

    …that we bow to the lawyers who will run our lives for us.

    Frey needs to sort out the difference between “rule of law” and “rule of lawyers”. What he’s arguing is that the text of a law is immaterial; what’s material is what the lawyers can convince a judge (another lawyer, natch) to believe it means at any given moment.

    I’m liking the suggestion from Henry VI more and more every day.

  4. Or it could be said that the legislature provided a method for determining intent during voting and that is the method that is to be used to count votes. A situation, limited, in which the normal rules of determining intent do not apply because the general rule has been superseded by a specific rule.

    Exactly. But what’s important to note here is of course they are still interested in voter intent. That’s what votes are.

    They have just decided as a matter of convention and law that for purposes of expediency, intent will be determined by the mark or marks you leave as they are most conventionally understood.

  5. Jeff, Patterico has lifted his ban on commentators he barred. I have not bothered to comment (although I did thank him for defending O’Donnell for one day, out of the old tic-tac-toe game theory basis). But then he went back to attacking her, so that did not stick. I have have popped in to see what is going on occasionally since then. He does have Sockpuppet Fridays. You are an especially popular subject on those days.

    But getting intentionalism? There is not too much of that at Pat’s place.

  6. I got on a roll when I was voting for a bunch of Ls and accidentally voted for an L when I meant to vote for an R.

    I just pretended I didn’t notice and if you ask me if I voted for that particular R I will say yes I did.

  7. I honestly knew that Frey would make this argument.

    Transparent and clumsy.

  8. They have just decided as a matter of convention and law that for purposes of expediency, intent will be determined by the mark or marks you leave as they are most conventionally understood.

    And then they told the voters that by promulgating that in a statute.
    Clever, those legislators, letting the voters know what was expected of them.

  9. I am pretty sure if a voter writes on his or her ballot, “Princess Lisa can fuck off,” even an Alaskan state ballot counter should be able to get the jist of that voter’s intent.

  10. We can assume there is no sanction to be applied to Lt Gov Campbell for being a dick I guess.

  11. And then they told the voters that by promulgating that in a statute.

    By omitting any other conditions and methods for determining voter intent, yes.

  12. Writing “Mickey Mouse” on a ballot does not = Murkowski. Does Murkowsky? Maybe or maybe not, especially if there are hundreds of names for write in that are similar. There is a practicality argument to this too. Which is why the legislature in Alaska made the rules it made.

  13. I honestly knew that Frey would make this argument.

    Transparent and clumsy.

    As did I, when I heard the Lt governor speaking of voter intent on Levin’s show, and Levin snapping back that election law doesn’t provide he look for such intent.

    What I immediately thought was that Levin is right: voter intent is assumed by virtue of the voter making the mark. If the voter fails to signal his or her intent, there’s not much vote counters can do about it.

    In the case of the write ins, the insistence that names be spelled correctly is a very severe instance of requiring that the law be followed to the letter. If the Lt Governor doesn’t believe that the legislature intended that the law be followed so closely, he is making an intentionalist argument. If he assumes that they did mean to write the statute in just such a way, but that such a statute is too restrictive in this instance, he is giving himself permission to rewrite the law so that it now says what HE wants it to say. It is, at that point, a new text.

  14. Craig Campbell is a stunningly corrupt dick.

    He’s way more qualified to be an Alaskan senator than bitch lisa.

  15. Hypothetical spelling out (ha!) how-come isn’t complicated: Two guys run as write-in candidates, one named Miller and the other named Muller.

  16. My biggest problem is that I’m running out of ways to say the same thing over and over again.

  17. Arthur had the same sort of problem with the Black Knight, running out of arms and legs to hack off.

  18. Or one guy named “there” and one guy named “their.”

    OK, bad example. Either spell it right or go home, it’s not that freaking hard.

  19. ‘Tis only a brain wound!

  20. You spend far more effort on this mendoucheous twatwaffle than he’s worth. You could probably save yourself a lot of effort by writing something like “The DDA may not be anti-Semitic, but he remains impervious to learning. It’s not just that he’s wrong again, but he’s completely misrepresenting my arguments, which I made in great detail {here} and {here} and {here}.”

    Keep it in a .txt, and re-post as needed.

  21. This is not a point Frey will concede. It is not a point he can concede without a radical alteration of his worldview, amounting to a complete reorientation of “up” and “down”.

    Frey is a lawyer. Lawyers learn their trade by learning debate, and (according to them) the push and shove of advocate vs. advocate results in truth. This is the Hegelian “thesis + antithesis = synthesis”. Of course, we know now that X + anti-X yields light, heat, and fragments; it doesn’t stop people from piously intoning pronouncements in favor of Mr. H, however disguised.

    The rules of debate have become formalized over the years, and have specifically eschewed any semblance of intentionalism; the only thing left is argument and counterargument, reinterpreting the original texts according to which side the debater takes. Proto-lawyers on debate teams will happily take on Resolved: that the moon is made of green cheese and argue it — and if the “anti” side is clever enough to “win”, will take that as an acceptable result.

    This spills over into the courtroom. As a DA, Frey’s self-metric for success is putting people in jail, just as defense attorneys’ metric is getting the client off. Both sides are intent (!) upon discarding any trace of original intent or even text, descending to the level of symbol and reinterpreting from there in order to support their side of the debate. The notion that anything resembling “justice” emerges from such a system is risible. The notion that both, or either, would go along with enforcing a system that began with intentionalism rises to the level of knee-slapping guffaws.

    A half-solution that might reduce the severity of the problem somewhat occurred to me long ago: Before the trial, assemble two teams of lawyers, each with access to all the case-related materials; let them prepare as best they might; then, at the beginning of the trial, flip a coin to determine which is “prosecutor” / “plaintiff’s counsel”, and which is to be “counsel for the defense”. At the very least it would require both teams to get deeper into the facts of the case rather than the interpretations applied thereto.

    Regards,
    Ric

  22. Much as I don’t like the idea of an honest misspelling costing a citizen their vote, I also dislike the idea of vote counters having any sort of discretionary power when it comes to counting votes.

  23. I should say I dislike even more the idea of vote counters having any sort of discretionary power when counting votes.

    Just where is the “close enough” line drawn? One wrong letter? Two? Three?

    If the courts allowed Queen Lisa to have her name on a list available to voters while voting, then the minimum expectation should be that voters are able to copy the markings correctly onto their ballot.

  24. It’s not like they can’t write the correct spelling on their hand beforehand, Blake.

  25. Much as I don’t like the idea of an honest misspelling costing a citizen their vote…

    If the race is between “Jim Smythe” and “Gym Smith”, spelling is critical. The only proper way to count a vote for “Gym Smythe” is to create a new pile and hope there’s a person with that name who’s eligible for the office.

    Extending that to more typical cases, the law required exact spelling. Everyone knew that before Murcokeski had her baba taken away; it should continue to be the law until the legislature sees fit to change it.

  26. Pingback: Patterico’s Latest Gambit: Trying to Pit Michelle Malkin Against Mark Levin? : The Other McCain

  27. After a moment’s thought over dirty dishes, it occurs to me that while Frey’s notions of intentionalism are totally off-base, his implied advice is good for those who wish to see Mr. Miller elected (or even a “fair” election[1]). Jeff’s argument is that the intent of the Legislature is to assume, for the purposes of vote counting, that voters are sufficiently adept at signaling to signal their intent properly within the known conventions; once that assumption is made, the actual intent of the voter need not be delved into, because interpreting the text (the actual vote-on-ballot) is a matter of comparing it to convention.

    If argued before any known Court in North America, the opposing debater must then immediately object that this procedure discards the intent of the voter, with the strong likelihood that that argument would win the debate. The resulting mess is well within almost anyone’s imaginative range.

    Regards,
    Ric

    [1] “Fair” being an evaluation grade between “poor” and “good”, I take “fair election” to mean one the results of which need not be discarded as ludicrous.

  28. It’s not like they can’t write the correct spelling on their hand beforehand

    That’s cheating.

  29. Frey is a lawyer.

    Ric – I am a lawyer.
    Funny, that.

  30. That GOP leadership did not and still has not sent party discipline after Murky is a very intentional signal to the rest of the herd: get in line.

  31. They only serve to mark themselves Joan. We won’t forget.

  32. Mikey NTH: There are several posters who are attorneys or are otherwise closely related to the legal system. My criticism is not of the probity, integrity, or intelligence of any individual within the system; it is of the basis of the system itself, which I consider fragile at best.

    Regards,
    Ric

  33. Jesus, if Frey is going to let Jeff live in his head like that, he should really charge rent.

  34. Should I know who Jerry Wilson is? Because we seem to be swimming in the same pools.

  35. I’m trying to come up with ways to get these points across.

    What do you think of this?

    Imagine yourself bowling. When you step to the line, you intend to throw a strike. You fail, because you’re a terrible bowler, and the ball feels to you like the dislodged head of G. Gordon Liddy, so you don’t grip it entirely appropriately. Now. Does your failure to throw a strike mean you never intended to throw one? Does an “intepretive community” have a right to look at your gutter ball and argue that you meant to throw that gutter ball — provided enough reasonable people agree?

    Does the latter change the former?

  36. JeffG, throw a black man and a dog in there and you’ve got a winner winner chicken dinner.

  37. I read the statute, which was described with words not in the statute, may not after all suffice for Millers demand. The plain meaning is not so plain. Spelling is not mentioned. A write in votes count if a bubble is filled in and filling in the name of the WI candidate “as it appears on the list” or the candidates last name. I believe “as it appears” is vague enough for voter intent (which applies to other ballots) to matter. That failing, there is another reading of the statute. It does not have to appear as it does on the list. It can be the candidates last name.
    That throws the meaning of “as it appears on the list” into question, because then it is either full or nickname or whatever the candidate has chosen even if it is a mathematical symbol, or the candidate’s last name. The last name, barring some potential with another candidate, does count for Murky. This makes “as it appears on the ballot” somewhat ambiguous because a distinction is being made between that and last name. Spelling of the last name may not be an issue, only clear intent of the voter.

  38. Obviously, the gutter ball should be counted as a strike, because that’s what the bowler intended.

  39. - As a backdrop to all of this, it’s interesting that the Left is doing their usual yammering campaign, including some of their dearest memes; ie. “Disenfranchisement”, “voter intent”, along with cries of fairness.

    – All of this for a candidate supposedly a Republican.

    – Rather telling that. Murkowski is a Republican like Arianna Huffington is a Rhodes scholar.

  40. I’ll qualify what I just said further: I have not read ANY Alaska case law on the subject of write-in voters. There may be some ruling having the effect of law that has settled the issue of whether “as it appears on the ballot” means perfectly spelled. The last name of the candidate is another option for a write in voter. Unless there is case law that says THIS must be spelled correctly there’s ambiguity to be resolved.

  41. “As it appears on the list” seems pretty straightforward, Sarah. Meaning, the name appears “as it appears on the list.”

    If you run in to problems because the legislation turns out to be nonsensical as written — say, eg., the phrase “as it appears” requires voters somehow to type the name out in the same font and size — the statute is broken, all votes should be thrown out, and the law rewritten.

    A judge may have to decide what he believes the legislature intended when it decided what “as it appears on the list” actually meant. Otherwise, s/he might have to throw the thing out because s/he determines that such a dictate required voters to precisely mimic the original appearance of the name.

  42. - Besides that amusing situation, Lefturds defending a dyed in the wool RINO, as to the election results themselves, the entire question may well be moot, since no one knows how many of those write-in votes are for Murkowski. Miller is most likely just covering all the bases.

  43. I’m trying to come up with ways to get these points across.

    Perhaps you should resort to the Obama tactic of blaming not the message nor its transmission but the blockheaded morons you’re forced to communicate with.

    Or, you could just accept the fact that people will usually forgive you for being wrong, but they’ll never forgive you for being right.

    Especially when you’re very publicly right, and your opponent’s usual argumentative tactics cease to have any purchase, leaving him feeling impotent and helpless, and therefore justified in lashing out over and over and over.

    And over.

    If the game is not “let’s be clear” but “let’s see who outlasts whom,” coming up with better methods to explain yourself won’t have much effect.

    Just sayin’

  44. When I ran as a write-in candidate for local office in Alaska 15 years ago, I was told clearly and plainly that any write-in votes cast for me would only count if my name were spelled exactly right.

    I could believe the borough clerk who told me that was simply being more conscientious than someone in the state board of elections; she always struck me as having her [stuff] together and knowing the law (as it pertained to her job) better than the borough attorney.

  45. I thought the “as it appears on” is as it appears on the write-in candidate application and means as the applicant has signed it. The name they signed to the application.

  46. Jeff,

    It seems to me that you’re changing the frame of reference. You’re a terrible bowler, but you meant to throw a strike, so you demand that it be counted as a strike. Frey pretends that this is what intentionalism means. You’re a terrible bowler, but you somehow manage to roll the ball down the middle of the lane and knock down all ten pins. The other bowlers in your “interpretive community” want to score it a zero because your form embarrasses them; and you shouldn’t be bowling in the first place. That’s what you’ve been arguing against.

  47. Ernst:

    No. The ability to signal correctly is exactly equivalent to the ability of the bowler to throw the ball. Don’t confuse intent — to express an idea or to hit a strike — with ability.

    Regards,
    Ric

  48. I didn’t think I was Ric, and if that’s the case, then the bowling analogy fails.

  49. I thought the “as it appears on” is as it appears on the write-in candidate application and means as the applicant has signed it. The name they signed to the application.

    Exactly. In Alaska you have to file paperwork to be a write-in candidate, and even file campaign financial statements with the Alaska Public Offices Commission (at least, that’s how it was in 1995, and I’ve seen nothing on the Mercowsqui question that indicates it has changed).

  50. What if the voters intent was to intentionally misspell Murkowski’s name as a means of protesting her write in campaign? How in the hell can the counter even begin to guess intent on anything other than an exact correct spelling? He can’t, and so he shouldn’t even try.

  51. I think Ernst has it right, though, where he talks about the “interpretive community” that Jeff is arguing against. Clearly Jeff’s point is that if you bowl a strike, it’s a strike; if you roll a gutter ball, it’s a gutter ball.

    It doesn’t chenge your intention to bowl a strike, but that’s because intent is separate from outcome.

    Frey attacks intentionalism by shackling them together.

  52. - In fact, voting is so supported to the highest extent, ability isn’t in question. Any questions you might have about a ballot, a measure, a candidates name, etc., all you have to do is ask.

    – I’m pretty sure that’s true in all 57 states.

  53. No. Mind you, I don’t like the bowling analogy much, but it is perfectly adequate in this case.

    In part I’m a little confused as to whether or not you intended one case with extensions, or two cases. It fails to matter. Either as one case or two, the bowler(s) intended to throw a strike and was/were frustrated by his/their inability to do so; in the latter case or clause chance intervened to provide success. Neither ability nor chance invalidates the intent of the bowler to throw a strike.

    One of the reasons I don’t like the analogy is that it allows confusion as to who is the “interpretive community”, and it occurs to me that this is where Frey’s confusion arises. The “interpretive community” in the case of the bowler is the alley — the surface, gutters, pins, and ball; the “interpretation” is done via momentum, friction, and the rest of the laws of physics, and human observers are irrelevant. Introducing the opinions of observers breaks the analogy.

    Regards,
    Ric

  54. I should say that intent and outcome can be connected, but that involves effort on the part of the writer/speaker/bowler/voter.

    The reader/listener/scorekeeper/ballot counter are required by the rules under which they operate, to base their inteperpretation on what actually happens.

  55. How about this one: I’m a great bowler, but I don’t think my opponent is legitimate, so I ironically throw a strike two lanes to the left (where the mustache wearing hipsters are drinking PBR and bowling with the bumpers up) instead of in the lane I’m facing. A strike was obviously intended, but the signaling was bad and it shouldn’t be counted.

    Unless one of the hipsters gets hit by the ball. In that case, you should get an automatic turkey.

  56. - On most courses you’d have to drop your ball on a hipsters foot and take a one stroke penalty.

  57. in the latter case or clause chance intervened to provide success. Neither ability nor chance invalidates the intent of the bowler to throw a strike.

    Agreed. In the second example, you meant to throw a strike, just as you did in the first example, where your intent miscarried. In the latter case however, as far as the interpretive community is concerned, your intent doesn’t count because your form was unhelpful.

    Also, I would say that the alley is the medium rather than the community.

  58. The automatic turkey allows you to skip the next two frames and drink beer instead.

  59. Right, my bad. I was thinking football.

  60. Mercowsqui. Hah!

  61. inteperpretation

    I think I may need to turn spell-check back on.

    And Kevin, this suggests my misspelling of Mircausky may have been unintentional.

  62. Isn’t it time that we admit Frey has made his case with perfect geometric logic?*

  63. McGehee: You’re onto it.

    What we’re after here is communication. An idea occurs in the mind of person A. The epistimological ideal of communication would be a magic method of making the same thought occur in the mind of person B. We can’t do that; all we can do is approximate it; but if “communication” (which resolves down to “common or mutual thought”) is to occur, it means that A intends to create a thought in the mind of B which is as close as possible to the one occuring in A’s mind.

    A does that by signaling. To signal, A selects symbols and arranges them according to convention into a text, then delivers them to B, who interprets — that is, B examines the text, refers the symbols to convention, and thereby creates a thought which is ideally identical, and hopefully quite similar, to the one that occurred to A.

    The system requires that both parties employ the same symbols and the same system for selecting and arranging them — that is, the same language. If B selects some other convention for selecting and arranging symbols, and employs that to create a thought, it is only by chance that A’s thought is duplicated in B’s mind.

    In this case, the Alaska Legislature has attempted to provide a very strict convention for selecting and arranging symbols, and provided that B (A being the “voter”) must use that strict convention in interpretation. Since that convention is very simple, and the number of available symbols and the possibilities for arranging them is very few, it in effect assumes that the signaler, the voter, is competent at selecting and arranging symbols into a text — a vote; it is therefore possible to assume, based on that, that the voter’s intent is accurately represented by the text. This is all that can be divined from intentionalism itself. Don’t try to make more of it than exists.

    Regards,
    Ric

  64. They are relying at Hot Air on this fellow’s judgement;http://www.conservatives4palin.com/2009/05/chip-thoma-this-is-not-about-palin-but.html

  65. #43 I think because of the modifier there is an issue there. The plain language of the statute does not require the voter to write the name of the candidate “as it appears” only.
    The voter may right it “as it appears” “or” the candidates last name.

  66. And spelling is not mentioned.

  67. And the Alaska Supreme court cases that exist have ruled very heavily in favor of intent.

  68. SarahW, if so, then the write-ins for Joe Miller should also be counted as being for Joe Miller.

    And write-in votes for “McGee” should have counted for me back in ’95, if there had been enough write-ins to warrant checking them.

  69. If the court found that OR really means or, intent might apply. If the court found the stature poorly worded and also ambiguous, they might go behind the statute and consider legislative intent.

    Then they might consider evidence the statute was written for the benefit, for example, of persons whose name might change after the ballots are prepared, through marriage, divorce, or other legal proceeding. (I have no particular reason to believe this is the case, although I have seen statutes dealing with name changes in other kinds of non-voting circumstances)

  70. - I thought about the idea of using likenesses of the candidates instead of their names, where-in voters could cut out a picture and paste it to the ballot, but that would involve hoping certain voters didn’t eat all the paste instead, and worse yet, providing them with sharp objects for snipping.

  71. “Last name” is not “name as it appears on the write in declaration of candidacy” Just saying. It says this:

    A vote for a write-in candidate, other than a write-in vote for governor and lieutenant governor, shall be counted if the oval is filled in for that candidate and if the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided.

    I know what Murkowsky will argue, anyway.

    And yes, then votes for “Joe Miller” (if there were no mixups with similar names) would probaby be counted for Miller.

  72. - Sarah – If that is the actual wording, then doesn’t the appositive phrase “other than a write-in vote for governor and lieutenant governor” negate the entire paragraph for the purposes of what is in question here?

  73. Who wants to tell him that a write in vote for Joe Miller doesn’t count as a vote for Joe Miller?

  74. - Having different rules for write-in voting depending on the office would seem to open the door for judicial interpretation.

  75. If you have to write in the name as it appears on the list, and the list is in Times New Roman typeface, and your handwriting is a sans-serif (or worse – script!) style, then your vote should be disregarded no matter how good your spelling may be.

    No, really. A semi-respected DDA told me so!

  76. Hey Jeff, Mark Levin linked to you from his Facebook page. Can’t post a link to Levin right now since I’m on my BlackBerry.

  77. - Well, one thing is clear…

    “You can’t have too many rules when it comes to voting”

    – Or unclear depending on what you interpret that statement to mean.

  78. mr. levin linked this post about frey

    link

  79. I intended to say, I meant in my heart to say, “Mother, will you please pass the yams.” But what came out instead, how it sounded to others, the thing I accidentally signaled was, “You filthy old toothless whore YOU RUINED MY LIFE by dressing me up as a girl and putting my hair in pigtails.”

  80. Dicentra: You’ve got mail, assuming I have your address correct.

  81. It seems to me that you’re changing the frame of reference. You’re a terrible bowler, but you meant to throw a strike, so you demand that it be counted as a strike.

    Not the case. I meant to throw a strike and didn’t because I lacked the ability to make my intent manifest. Other times I might mean to throw a strike and do just that.

    The fact that I intended to throw a strike but instead threw a gutter ball doesn’t negate my intent to throw a strike. It just means I failed to carry out what I intended to do.

  82. The link Mike wishes he could give you is this one rayt heah.

    My, he’s a busy little bureaucrat.

    Indeedeley-doo! Heh.

  83. I don’t much like the bowling analogy either. I was trying to think of a way to restate what I’ve already restated a million times, and I was trying to do so before heading out the door to pick my dog up from the vet. Glad it provoked a bit of discussion, though.

  84. I am highly confoozed by all this stuff, but let me ask… if Larry Smith and Lenny Smith are both listed as write-in candidates and I write in “L Smith”, then what, give each candidate a half a vote, or look at the votes for each that were clearly written and then presume that I meant to vote for the L Smith who got more votes, or… yeah, maybe we should stick to whatever the rule was before hand, I dunno.

  85. I don’t much like the bowling analogy either.

    darts might be a better example

  86. Yet there are demagogues like Levin, together with certain bloggers who are desperate to get Levin’s attention ….

    If you express a pro-O’Donnell versus Castle opinion, rather than take on any honest argument, he tries to portray you as craving attention from someone. What nonsense. It’s a dishonest, slimy tactic, especially coming from an hysterical attention whore like him. He should confine his attention seeking to sliding his foot over into the next stall in his public men’s room visits and leave the rest of us the hell alone.

    I suspect the intent of Patterico’s jab was to Jeff, but Riehl does have a pretty good comeback.

  87. a little ot but how can you have an “official” list of write in votes?

  88. A vote for a write-in candidate, other than a write-in vote for governor and lieutenant governor, shall be counted if the oval is filled in for that candidate and if the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided.

    [my emphasis]

    Doesn’t seem like writing the last name only causes any problems. Now a judge will have to decide if the statute as written gives the vote only to voters who managed to get the name in the exact font and size as the original declaration of candidacy. Or, if the judge believes himself to be a formalist, he must toss out the entire write in vote, because the text, existing as it does autonomously (the intent of the legislature, remember, is not relevant to the formalist), requires that the name appear “as it appears on the write-in declaration of candidacy,” and presumably, very few voters managed to duplicate the appearance exactly, down to font and size.

    A judge who doesn’t dismiss intent, on the other hand, might argue that the legislature clearly intended to recommend that votes be counted only when the spelling and order of the names matched those on the declaration of candidacy, that “as it appears” was more talking about the SIGNS rather than some of the trappings (font, size, etc.) that resolve only to SIGNIFIERS.

    A textualist might rule similarly — “appears,” he might argue, means “shares the same outward appearance without being exact as to size and script” — but he’ll do so by ruling that “appears” can mean x, in the instance, and not y, because, well, he says so, and that’s that. He’s making law as he pretends to be interpreting it.

    See? It matters how you get there.

    Case rested.

    Again.

  89. to expand: how does one get on the ballot as “none of the candidates”

  90. I suspect the intent of Patterico’s jab was to Jeff

    Riehl is already friendly with Levin. And were I so desperate for Levin’s attention, I’d send him links to my posts, or email him personally, or ask that he pretty please link my end of the year summary of “things my local rag got wrong that I was keen enough and vigilant enough to catch them on.”

    The truth is, I happen to think Levin has been proven correct precisely to the degree Frey and his compatriots on the “Good Man!”, HOW CAN YOU SUPPORT CPAC SPEAKERS WHO SAY THIS?, I hope RUSH LIMBAUGH FAILS!!1eleventy!; we must select MODERATE, ELECTABLE CANDIDATES AND WOO THE MODERATE MIDDLE!-side of the debate have been proven resoundingly wrong.

    If I’ve mentioned Levin, or Limbaugh, or Ingraham, or Dennis Miller more than usual lately, it’s because I have an iPhone with internet radio, and I’ve started listening to conservative talk much more of late.

  91. Woah Jeff! Woe to those who would woo the moderate middle! [grin]

  92. way ahead of you Ernst.

  93. or to frame it differently: the state tells me that in the race for dog catcher i can only vote for candidates a, b or the officially approved write in candidates not for fido who is who I want to vote for. thank you big gov’t for giving me my choices.

  94. That’s where Miller will run into a problem, newrouter.

    From what I heard listening to the Lt Governor, write-in candidates have to pre-register as such. Miller, being a non-write in, didn’t register. And so any write-in votes for Miller, under some interpretations of the law, would disallow his write in votes.

    The Lt Governor has since said he will count them, because he doesn’t agree with the law. Me, I’d have to see the exact wording.

  95. In mower ways the won Jeff.

  96. also if you have an “official” list of write in candidates what is the point of writing in a write in candidates? just put the “official” list of write in candidates on the ballot. otherwise the write in stuff is a fraud.

  97. Won Jeff?

    Hardly. We are legion.

  98. In Michael Mann’s Last of the Mohican’s there’s a line about laying aside the law and having nothing over us other than tyranny that seem appropriate to the discussion.

  99. We are legion.

    Servian, Marian, Imperial or French Foriegn?

  100. That’s sick.

  101. Here’s the skinny on the observer who is being cited as a source;

    ARC OF A THOMA

    Tim Blair
    Sunday, May 10, 2009 at 03:42am

    1969. The highlight of Alaska resident Chip Thoma’s life: he is given a security job at Woodstock and spends the entire concert next to the stage.

    1970s-80s. Chip is given several drink-driving tests, which he fails four times over ten years. He spends time in prison following a cocaine conviction.

    2009. Chip is given to complaining about a lemonade stand run by Piper Palin, seven-year-old daughter of Alaska’s governor. He spends most days railing against tourists who want to see the governor’s mansion.

  102. What is he being cited as a source for, winston? Link?

  103. I am definitely not saying Patterico’s slurs are correct, but he seems to have a Frisch like obsession in coming after you.

    He just can’t quit you.

    Last of the Mohicans was a fine film, but there is a Hell in the Pacific quality to all of this. Jeff pulls off the Lee Marvin role quite well. Patterico, however, is a poor substitute for Toshir? Mifune. Plus Mifune understood English a lot better than Patterico does.

  104. Mark Levin’s Facebook friends have really stirred the g00gle search pot; some of ‘em came around for this.

    So much for that promotion, Deputy Dawg.

  105. Actually I think it’s more of a Star Trek quality. You all know the episode. The one with the nice normal guy and his batshit fucking crazy insane maniac from an alternate reality doppelgänger with whom he was fated to grapple for all eternity.

  106. Ho do you solve a problem like P-frey-a?

  107. No, I’m afraid not serr8d. That was just plain old institutionalized bigotry. No insane bat coprophilia involved.

    I was thinking of The Alternative Factor.

  108. Gabriel Malor at Ace weighs is on the Miller/Murky fight.

    This is the part where I disagree with Patterico: The Alaska legislature may have spoken, but the legislature cannot by statute override the U.S. Constitution, which protects, among other things, the right to vote and to have your vote counted.

    To be sure, a line has to be drawn. But the overly formalistic line chosen by the Alaska legislature likely disfranchises a non-trivial number of voters in violation of the U.S. Constitution. [...] In fact, the exact-spelling rule, by it’s strict nature, leads to less accurate vote counts than the rule drafted by the Alaska Division of Elections.

    The Murky murk deepens.

  109. Great p-shop serr8d. I’d never seen that joint before.

  110. Oh that’s alright. Malor is I believe a member of the fraternity. He’s allowed to disagree.

  111. How we possibly expect citizens to copy letter shapes from one list over to their ballots?

    That’s unfair!

  112. if you have the time watch this glenn beck show

    11/10/10

    link

  113. It is racist and a disenfranchisement to make someone actually spell a name properly.

  114. Oh that’s alright. Malor is I believe a member of the fraternity. He’s allowed to disagree.

    It’s really most important they keep the argument among themselves. The traffic back and forth is wonderful — and bonus! it keeps the right types making the arguments and framing the debate for conservatism.

    And we must reassert who our proper spokespeople are. Rabble-rousing is good for starting waves and winning elections. But we need pragmatic intellectuals leading us when it comes time to decide how to govern. Thank goodness they’re willing to step in and save us.

    I expect if Hot Air hasn’t yet linked it, a link won’t be far behind.

  115. The J.D. is the new D.Div. afterall.

    Not really, but what the hell.

  116. AllahP linked it this afternoon at 5 pm in his story on the Alaska vote.

  117. Huh? Was that JD, or Juris Doctorate?

  118. AllahP linked it this afternoon at 5 pm in his story on the Alaska vote.

    Shocker.

  119. P->A->AP Hat trick.

  120. Juris Doctorate JD (geez, it’s always about you, isn’t it)

  121. Jesus, man. 30,000 words of that babble, all of which could be explained in about 6 sentences, all of which boils down to a petty, petulant, yet totally uninteresting semantic argument between D-list blogosphere pundit-hacks?

    For reals?

  122. P->A->AP Hat trick.

    So let’s see. 2 big links to a piece that disclaims intentionalism (incorrectly, of course), but no link backs to the rebuttal?

    It’s almost as if they don’t want the intentionalist argument to gain purchase, these honorable, intellectual realists.

    I can’t for the life of me imagine why that is.

  123. Jesus, man. 30,000 words of that babble, all of which could be explained in about 6 sentences, all of which boils down to a petty, petulant, yet totally uninteresting semantic argument between D-list blogosphere pundit-hacks?

    For reals?

    Here’s an idea, Dude.

    Go read something that interests you. In fact, go write 6 sentences, post it to a blog, and read that. If others join in and read it too, you can post other things you all might like, cultivate an audience of sympatico folk, and have your own little discussion community. It’ll be fucking tits.

    And then I’ll come over and take a shit on it anonymously.

    For reals!

  124. To me, the bottom line is if you’re too stupid or uninformed to know your candidate, you lost your vote.

  125. I can’t for the life of me imagine why that is.

    To be selling what I was misspelling.

  126. Holy shit! Cynn is sober!

  127. 128, Because it does not suit their purposes. Egos? What egos? :)

  128. We wonder why Frey keeps coming back to this fight. The answer is that he has the courage to continue.

    Yes, the song really fits.

  129. So let’s see. 2 big links to a piece that disclaims intentionalism (incorrectly, of course), but no link backs to the rebuttal?

    Well Jeff G, it appears they’ve made a conscious decision that intensionalism is too esoteric a discussion for their readers; it’s not red meat

    You’d have better luck being linked, or mentioned, by Levin, Limbaugh, or Glenn Beck who have all spoken of it in one way or another over the years.

    And I don’t understand why there’s not more interest. One could create a whole new “red meat” category; given lefties propensity to hijack meaning and intent to feed their memes and demagoguery.

  130. I love 129.

    I really, really do. Damn, you’re good.

  131. PW > TOM > RWV > ML

    Grand Slam? It is at least a Gordie Howe Hat Trick.

  132. I don’t understand why there’s not more interest.

    1) The “reader-response” paradigm (my inadequate short-hand) that Jeff is trying to counter-mine (since it’s purpose is to undermine language and critical thinking) is ingrained into our therapeutic culture (think, “and how does that make you feel?”)

    2) A number of people on the right are prepared to accept the Left’s linguistic premises in the hope that they can use it to their advantage someday (“and then we be the master, preciousss…”)

    3) professional courtesy?

  133. Comment by Dude on 11/10 @ 7:56 pm

    Jesus, man. 30,000 words of that babble, all of which could be explained in about 6 sentences, all of which boils down to a petty, petulant, yet totally uninteresting semantic argument between D-list blogosphere pundit-hacks?

    For reals?

    So Tim Wise is commenting here now? Don’ be hatin’, playa!

  134. Mike, give pd a chance to respond!

  135. - If you’ll excuse me for saying so, it really doesn’t matter what any of the braying wolves have to say. This will be a case of what Alaska wants, pure and simple. The Judicial is only going to play the game and hold up the election results for just so long and then they’ll move and that will be the end of it.

    – We’ve all seen this movie before, several times in fact.

  136. I was all gonna write-in “Loser MamaGrizzly” but I didn’t know if they’d be like “His intent is clearly anti-Lisa, i.e., like:

    ‘Loser!
    –Mama Grizzly'”

    or if they’d say I meant:

    “Loser: Mama Grizzly”

    I could punctuate it but then they’d be all “Now is the ‘!’ an exclamation, as in ‘f.u.’ or is it intended as a sign of admiration?

    or is that “:” mean like syntactical-descriptive or wuz he all syllogizin’ and left off something, as in “Loser: Mama Grizzly as Formalism:________”

    Would they think I was all ironic, or would they know I was? And would they defer to my intent anyway?

    Then I remembered I’m not registered to vote.

  137. - Ok Moby. Do you feel better now?

  138. WTF was that ?!

  139. “Would they think I was all ironic, or would they know I was? And would they defer to my intent anyway?

    – Neither. They’d just spot the Bumbblefuck sticker on your VW microbuss’s bumper and know instantly you’re just another LeftProg asshat.

    – Apparently PDS is the new BDS.

  140. i came home one night all drunk and fucked up
    and went into the hallway and opened the drawers to a bureau
    thinkinking it was-that i was lifting the toilet seat
    and pissed all over my dads favorite sweaters..
    man- the next day he beat me within an inch of my life
    and frankly-i deserved it

  141. he only beat me twice-that time-and when i tracked mud on his new carpet and he told me
    hey-take ur sneakers off when u come in the house
    and-being a wise ass teenager i sassed him
    and he jumped out of the easy chair like a rocket
    and had me by the throat and said’what did u say?”
    frankly- i deserved it

  142. Not in this thread, please.

  143. PD:

    My brother sleptwalked into my room one night many, many years ago and proceeded to piss on my carpet, air-flush the toilet and go back to his room and go back to bed.

    Many, many years later, my son went on vacation with my brother’s family and woke up one night and went into my brother’s room and pissed into lil bro’s suitcase, air-flushed the toilet, went back to his room and went back to bed.

    The phone call was Mastercard worthy.

    Karma is the ultimate intentionalist.

  144. 145-147: Read my signs. (Or is that signifiers?)

    And don’t be so quick to jump to conclusions.

    Microbusses to all, and to all a good night!

  145. Does this help?

    “Loser: Mama Grizzly as Formalist: Jeff Goldstein.”

  146. Well you’re right and wrong sir. Right in what you convey, wrong in what you promote. If the intent outranks the law then we get an anything goes environment where judges tell us what intent is, not what the voters or legislature have passed as law.

    In practical life it means the rules of baseball mean nothing since each and every umpire knows what a strike is regardless ofn what the rules say.

  147. Well you’re right and wrong sir. Right in what you convey, wrong in what you promote. If the intent outranks the law then we get an anything goes environment where judges tell us what intent is, not what the voters or legislature have passed as law.

    With all due respect, you are entirely misunderstanding what I’m arguing. The intent is the law — made manifest in the text, which we know to be the product of an intending agency. And that’s exactly what I note here. The intent of the legislature to lay out the rules for write-in votes precludes vote counters from considering any intent beyond that assumed already signaled by the mark or name on the ballot. That is, they are constrained by the adoption of a conventional way of looking at voter intent made binding by the state legislature in its election laws. Were we to dismiss the legislature’s intent, we’d be allowing others (in this case, judges, ultimately) to make up the rules as they go based on the signifiers left behind by the legislature. In short, the judges would be deciding what the text meant when what the text meant is the proper purview of the legislature that passed it. The judge’s job is to interpret that meaning based on the intent of the legislature.

    In practical life it means the rules of baseball mean nothing since each and every umpire knows what a strike is regardless ofn what the rules say.

    A strike is a product of the rules of baseball. An umpire that called a pop fly to the infield a strike wouldn’t last long in the game. Doesn’t mean that to him that pop fly isn’t a strike; just that his idea of what a strike is is unconventional, and the game functions according to it own internal conventions.

  148. A question for Mr. Jackson:

    Who’s the “you” doing the “conveying” and “promoting?”

    I’m just seeking clarification. Because if you’re refering to Jeff, I don’t think that Jeff is arguing that the intent of the voter trumps the intent of the lawmakers (even though the voter intended to vote for the person he or she intended to vote for, irrespective of what he or she wrote on the ballot).

  149. If I were to cast my vote for the write-in candidate and write the name “Lisa Miller,” did I vote for Lisa (Murkowski), did I vote for (Joe) Miller, or did I spoil my ballot and vote in such a way that my vote was not registered?

  150. You voted for Lisa Miller.

    I’m tired. Very very tired.

    I think that’s it for me.

    Last one out, turn off the lights.

  151. I’m also genuinely curious to know what it is that Mr. Jackson thinks Jeff is conveying, and how that differs from what Jeff is promoting, since the former is right and the latter is wrong.

  152. Only if Lisa Miller was one of the registered write-in candidates, otherwise I’m pretty sure I didn’t vote for anybody in a way that could be legally recorded.

  153. What happened to my last comment?

  154. “… the insistence that names be spelled correctly is a very severe instance of requiring that the law be followed to the letter.”

    Is it really severe or just practical? If misspelling is allowed just how close to the correct spelling would one have to be to have the vote count? One letter? Two letters? Just the First name?

    As I understand it there is a list of the approved write in candidates available. Is it too much to ask for correct spelling to prevent an incorrect interpretation of the voters intent?

  155. *burp*

  156. Jeff,

    tried multiple times but could not recreate my comment guess I’ll turn out the lights.

  157. Without reading the linked post, I’d say the GOP already has as much of the academic elite as it’s likely to get. It’s just that, with some exceptions of course, most of them are in think tanks because they’ve been frozen out of the academy proper by the academic elitists.

  158. *Ms Loren*

    – I addumed you were being ironic by your “signifiers”. as was I with mine. Pot meet kettle, or if you prefer, irony meet irony. Such is the pitfalls of communication.

  159. *assumed*

  160. Levin graduated from law school at 22 and worked under Ed Meese. He’s one of the leads of Landmark Legal Foundation.

    Hardly anti-intellectual. But if it allows Bainbridge to sleep at night…

  161. To use Codevilla’s terminology (at least I think it’s his): the gentry party is telling the country party to get in the back, the credentials of the former counting for more than the real life experience of the latter, at least when it comes to formulating policy. But hey, thanks for voting the right way, idiots.

  162. Sure, Reagan read Hayek, but he was never tested on what he read, so how do we know that he reached the right answers on what he read?

    You let that go unchallenged, and the damn peasants are going to start demanding the Bible be translated into the vernacular so they can read it for themselves. Where will we be then?

  163. - Charlton Hestons area of Hollywood?

    – We’re already there. I can easily picture Progressives as the “Dirty Apes”.

  164. Capricious Congress, intent on passing Obama care, collectively called ‘Liars!’ and slapped at by a federal Judge…

    “Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an ‘Alice-in-Wonderland’ tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.”

    Old news (Oct. 14) but I see the Judge demanding exactitude from Congress in their use of signifiers, calling them on their attempts to misconstrue; holding them to what their signs actually meant. A small step in the right direction, or am I misreading this, overreaching for an intentionalism argument when there’s nothing to see here ?

  165. Hmmm…commenting issues. Jeff, I noticed that your site always loads things from ‘ericodom.blogivists.com’, mostly just in a flash and rather quickly, but this morning it’s taking forever, and rejecting comments. I blame Eric Odom, whoever he is.

  166. If I wrtie that Patterico is a fuckhead, what do I really mean?

  167. Tried without the linky, didn’t work. Stripped all HTML signifiers (blockquote), still didn’t work.

  168. If I write that Patterico is a fuckhead, what do I really mean?

  169. Fuck Eric Odom ?

  170. Yep. I really dislike this Eric Odom fellow.

  171. What’s happening is the Eric Odom site is selectively selecting comments by length I think. I’ve tried six ways from Sunday and can’t get it past him.

  172. “Eric Odom is a 29 year-old conservative activist, blogger and partner in the online media firm Strategic Activism LLC. Odom organized a counter-protest to a pro-health insurance reform rally in Chicago on August 4, 2009. He he describes himself in the recent past as a “stealth style eActivist” and a “Chicago-based, libertarian Web strategist.”[1]

    “Odom describes himself as a point man and organizer for the Chicago Tax Day Tea Party.[2]

    “Odom got his organizing start when he formed a movement called “DontGo” to oppose government regulation of the energy industry. As of August 2009, the DontGo movement has been taken over by the American Liberty Alliance, of which Eric Odom is the Executive Director. Most of the links on the DontGo movement web site now forward to the Web site of the American Liberty Alliance. Odom has the Twitter tag #dontgo. [3]”

    Why in flame-colored hell is he screwing up this blog’s commenting system ?

  173. The connection has timed out

    The server at ericodom.blogivists.com is taking too long to respond.

    * The site could be temporarily unavailable or too busy. Try again in a few
    moments.

    * If you are unable to load any pages, check your computer’s network
    connection.

    * If your computer or network is protected by a firewall or proxy, make sure
    that Firefox is permitted to access the Web.

  174. When I get that I right click my wireless connection icon and select “repair”. Seems to take care of it for me anyways.

  175. Good Christ, he’s a thick son of a bitch. Maybe he needs a map drawn out.

    I think Patterico’s going to completely explore the fail space. IOW, he is sampling the continuum of ways in which to completely fail to get the point of intentionalism.

    Not that I’ve completely got it, mind you, but I’m not lecturing others on what intentionalism is, except to the extent that I’m vocally learning from Patterico’s latest fail.

  176. Right now I’m DCC. I’ll try again…

  177. Nope. A small comment comes right on through. It’s not that big, really!, but it hurts Eric Odom’s site, for whatever purpose it exists.

  178. Patterico gets the point Slart, he just refuses to cede the point in an idiotic attempt to prove Jeff’s wrong about the way language works.

    My $0.02 on what’s going on, anyway.

  179. Doesn’t matter, folks. There are a few lawyer bloggers out there determined to make sure they paint intentionalism as unworkable, in favor of an incoherent idea of how language functions that they find helps them get to be master.

    In the end, that’s far more important to them than so silly ideological “purity” test. Which is for demagogues and populists, not the thinking types we evidently need in order to push a strategy that gives us a socialist President and a Congress that, up until very recently, was dominated by a far left speaker who was working (successfully) to push through radical changes to the very structure of the way our government works.

    You know, the Smart People.

    God, how we’ve missed them during our little temper tantrum of Tea.

  180. Thief! Goldsteinssess! It stole our Preciousss!! gollum

  181. There are a few lawyer bloggers out there determined to make sure they paint intentionalism as unworkable

    Possibly deliberately, because this gives them a bit more slack when making arguments? This was obviously a hate crime, your honor, given what protected group my client belongs to.

  182. - I have faith the Progs will always self-destruct.

    – It’s in their DNA, like a ticking biological time bomb.

    – A manifest case of intentionalism.

    – Or maybe it’s just Thursday.

  183. Patterico gets the point

    Objection: unevidenced assertion.

  184. - Objection over ruled

    – Attorney’s in my chambers – Now!

  185. …it’s been a fairly slow week, though.

  186. As to why lawyers seem to be comfortable with the present “linguistic regime,” I think you’re on to something, BBH.

    But Frey gets it. The evidence is that he keeps coming back to try to disprove it.

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