Originalism, intentionalism, and the rule of law
Several people have sent me the link to this piece in the American Interest, so let me quote from it and provide my gloss, given that this site has long trafficked in precisely the kinds of arguments being attributed to Justice Thomas (not unsurprisingly, a man I have described over the years as the SCOTUS Justice I most often agree with):
Toobin, who disagrees strongly with [Justice Clarence] Thomas about most matters constitutional, political and cultural, does a good job of showing why Thomas is a formidable judicial thinker. The interpretative concept of “originalism” is sometimes confounded with a simplistic literal interpretation of the words of the Constitution. Thomas argues that to understand what the Constitution meant to the framers, one needs to do more than read the words on the page and look to see how Samuel Johnson and perhaps Noah Webster defined them in their dictionaries.
Thomas is not a fundamentalist reading the Constitution au pied de la lettre; the original intent of the founders can be established only after research and reflection. The Eighth Amendment ban on “cruel and unusual punishment” can only be understood if one understands the thought of the period, the types of punishment then widely used, and the political and cultural traditions that shaped the thinking of the founders on questions of justice and punishment. One then takes that understanding, however tentative, and applies it to the circumstances of a given case today.
It is not the only possible way to read the Constitution, but it is a very interesting one and it may be the only politically sustainable way for the Court to read it in a contentious and divided country. Without some rule of interpretation that the average person can understand and accept as legitimate, the Court gradually loses legitimacy in the public eye. The originalist interpretation, whatever objections can be made to it intellectually and historically, is politically compelling. It resonates with the American propensity for commonsense reasoning. To say that the Founders meant what they meant and that the first job of a judge is to be faithful to their intent is something that strikes many Americans as sensible, practical and fair.
Now, many of you have heard these arguments before, because I’ve been making them for years now, both in the context of legal hermeneutics and in the context of the very fundamentals of our epistemology, which I’ve suggested is being undermined by linguistically incoherent (though intellectually seductive) notions of how language functions.
To revisit that argument, and to understand why what we believe we are doing when we “interpret” is so important, not only linguistically, but to the very nature of our social contract and, by extension, of very liberty, let’s begin here:
Without some rule of interpretation that the average person can understand and accept as legitimate, the Court gradually loses legitimacy in the public eye.
This seems simple enough: as I’ve argued on countless occasions, a necessary precondition for living under a rule of law requires that we agree on what it is we’re doing when we say we’re interpreting.
If we agree that interpretation for the purposes of understanding language is decoding the messages left us in sign form by some intending agency — if the messages aren’t messages at all but are rather accidents, free-floating signifiers that look like language because they mimic familiar signifiers (think egret scratchings in the sand that can look like words, or, iconographically, think of cloud formations that look like sheep orgies) — then we any “interpretation” is really nothing more than creative writing, in which the perceiver of the signifiers (egret scratchings, cloud formations) adds to them their signifieds (they look like familiar words, which have familiar meanings; it looks like some sheep fucking) to form their own signs, in essence, writing their own messages.
To then argue that the messages they’ve created by adding their own signifieds — and so creating their own, new, intended signs — were what the egrets or the clouds meant is, obviously, silly. And yet that’s what we grant ourselves permission to do when we decouple signifiers from the intent that originally turned them into signs — into language, which is a precondition for claiming to be interpreting, if by interpreting we mean decoding linguistic signs and re-encoding them so as to acknowledge our best understanding of them — and pretend that these signifiers exist as language outside of the intent that was required to turn the marks that look like language, the signifiers, into language itself, the signs.
The New Critics, certain formalists, the post-structuralists, the textualists — all of them rely on just such a conceit: that the text exists alone, beyond and decoupled from authorial intent (what that suggests to each of these particular theoretical veins will differ). That is to say, the text, they believe, has an ontology outside and beyond those who originally intended it, that it can exist as a text without any necessary connection to its authors.
To believe this, one has to believe that the marks themselves count as language — and they do this because code and convention provide us with the necessary tools to look at such marks and see them as language. But until those marks are signified, they merely resemble language — and it is our belief that what resembles language is in fact language that gives us leave to say we are interpreting it for purposes of completing a speech act, and not as some exercise in turning marks into whatever we can make them mean (within the “reasonable” context of convention and code). Or, to put it another way — and to place this discussion into the context of what is legally binding — we as citizens would be less likely to agree to follow laws that only became laws at the moment some judge decided to re-signify them, and with no consideration given to what the intent of the lawmakers was when they wrote the law, and supplied it with its meaning.
Textualism — which, when practiced correctly, will most of the time reach the same interpretive conclusions as originalism, provided legal conventions for clarity and specificity of expression are followed (in an effort to aid future interpreters who endeavor to fully understand the original meaning and intent of a statute) — fails because it requires, by virtue of its theoretical assertions, that we follow laws that are not yet laws until they are signified — turned into signs — by a prosecutor and a judge. That is, textualism, from a linguistic perspective, requires us to agree to follow laws that, in every respect, are not yet “written,” in that the textualists themselves don’t allow that what they are “interpreting” are signs at all.
And I don’t know how you all feel, but I submit that agreeing to live under a social contract that allows you to be a criminal after the fact — by virtue of the whims of judges and prosecutors — is a form of slavery.
Now, as I’ve shown on several occasions, professed textualists are nothing more, really, than misguided intentionalists; they claim not to concern themselves with original intent but instead adhere to what they call the plain meaning of a “text,” a conceit that posits as the ideal reader a “reasonable” person who, when engaged with the marks, will believe them to mean certain things (constrained again by convention and code). But by simply conceding that what they are engaging is in fact language — that is, that what they are looking at is more than simply egret scratchings or cloud formations, accidents that resemble language but which are not language until the intent to see them that way is applied on the receiver’s end — they are conceding that what they are interested in is signs, a speech act, something already intended and passed on to them, that they hope to complete by way of interpreting.
To complete that interpretation, then, it makes sense that what they are after would be the meaning of the signs provided them.
Where textualists go wrong is in suggesting that they are “interpreting” language that they themselves have decided isn’t language. That is, by claiming that they can “interpret” mere signifiers, they are giving themselves permission to write the text themselves, constrained only by the breadth of meanings one can make from a collection of marks organized in a particular way, using a shared code, and under the auspices of any number of contexts and conventions.
Writing the text yourself, however — that is, supplying the marks with their signifieds by way of your own intent, without concern for the intent of the authors who provided you with signs that you are willfully choosing to ignore — is not interpretation, in the way we understand it.
And so it follows that it is only through intentionalism — and in the case of law, originalism — that we can argue that what we are doing is interpreting the law in any way that allows for the law to precede our engagement with it. Meaning, how we get there matters.
Because if the Constitution can be said to exist apart from the intent that turned it into language and law in the first place, then there is no Constitution per se, and there is no law per se. There are only free-floating and pre-organized marks that become law only after some new consciousness supplies it with some new intent of his or her own. This is what is meant by a “Living Constitution” — one in which the Constitution has no tether to any pre-existing intent, and so is allowed to mean ever new things to ever new people, provided they can fit that meaning within the constraints of the code and some convention and context.
We grant this authority to lawyers and judges. And in so doing, we are agreeing to live in a kind of lawless society that pretends to be governed by the rule of law.
The only problem is, you can’t have a rule of law if you proceed as if the “law” is but a set of marks resembling language, to be assembled after the fact by those who claim to be “interpreting” and applying it.
Justice Thomas, bless him, recognizes this. And it is for this reason that he is going to have to be destroyed — not only by the left, but by all those who wish to maintain for themselves the very power to rule directly from the moment of (linguistic) creation.
We all want to be Gods. Humility is recognizing that we are not.
(thanks to all who passed this piece along).
update: Let me also highlight another bit, which critics of intentionalism often (and often intentionally) mischaracterize in order to try to delegitimate its arguments:
[...] the original intent of the founders can be established only after research and reflection. The Eighth Amendment ban on “cruel and unusual punishment” can only be understood if one understands the thought of the period, the types of punishment then widely used, and the political and cultural traditions that shaped the thinking of the founders on questions of justice and punishment.
— That is to say, divining intent itself uses all the trappings of literary methodology counseled by those who themselves have hoped to marginalize intent — doing so in an effort to understand the very intent that turned the text into a text to begin with.
And there are other practices we as rigorous interpreters will use, as well, from inter- and intratextual patterns to the biography of those whose signs we are trying to decode.
Often times you hear literary theorists (and contemporary, materialist historians), when pressured, suggest that because we can never objectively and with complete assurance determine original intent (or unvarnished history), determining original intent (or “truth”) as the goal is therefore not required as an interpretive aim.
This is merely the lazy thinker’s self-granted license to avoid doing the hard work of interpreting for the more rewarding work of creation.