Assertion: when it comes to interpretation, it matters what it is we think we’re doing when we interpret
Darleen sends this bit along:
A new book co-authored by Supreme Court Justice Antonin Scalia and legal writing expert Bryan Garner accuses judges – including some on the Supreme Court – of loose and unprincipled decisionmaking that has tarnished the reputation of the judiciary.
“The descent into social rancor over judicial decisions is largely traceable to nontextual means of interpretation, which erode society’s confidence in a rule of law that evidently has no agreed-on meaning,” the authors state. “Our legal system must regain a mooring that it has lost: a generally agreed-on approach to the interpretation of legal texts.”
I’ve noted before that Scalia, by calling himself a “textualist,” is actually disavowing (and inadvertently mislabeling) his own intentionalist interpretive stance. But be that as it may, the fact is, Scalia uses the foundational ideas of intentionalism in his interpretative maneuverings — albeit he expressly relies on an understanding within the legal interpretive community that conventions for signaling intent are important, and that a failure to properly signal intent can lead to trouble with respect to recovering original meaning. And that makes him an intentionalist in the sense that I use the term.
Originalism, as expressed by Ed Meese, eg., is the legal position that best captures the idea of intentionalism: it acknowledges that the laws it is interpreting are actual things with actual meanings established at the time of their passage by the collective agreement of legislators who claim to have understood what it is the authors of those texts meant by them. It is a kind of corporate intent manifested in signs.
Which are, therefore, fixed in a very important way.
This needn’t be a controversial assertion, and in fact it isn’t: as I’ve written a million times here, intentionalism just is, despite anti-foundationalist sophistry arguing the contrary. Those who pretend to eschew intentionalism have (as I’ve shown here on numerous occasions) already necessarily adopted it: they’ve merely decided to change the locus of whose intentions come to count in the course of the intepretive chain. And it is there where the problem of interpretative integrity lies.
If there is no stable thing one can lay claim to interpreting — that is, if we don’t allow that the text is a fixed thing we’ve agreed to interpret with the aim of reconstructing its meaning through a second order system of representation (the arbitrary signifier connected to the signified) — than what we’ve institutionalized as legitimate is a linguistically incoherent process. Merely playing with the constituent signifiers that make up the visual marks of a text, removing from them the idea that they have an originary meaning attached (via the signified, which is what makes them signs, and language, to begin with) to some real-world agency, then re-arranging them in order to lay claim to having found the very thing we’ve implicitly denied exists outside of our own intentions to see it, is not interpretation in the sense we mean it: it is a personalized engagement with marks that lead to an intentionally realized reading of those marks — but because it doesn’t concern itself with how the original authors signified those marks, it doesn’t, therefore, concern itself with what the text means outside of one’s own personal interpretative bailiwick.
— Which wouldn’t matter much had we not institutionalized and legitimated the process, then “agreed,” by way of such institutionalization, that such a procedure comes to count as a binding lawful interpretation once enough people either agree with it or — and here’s the authoritarian kicker — pretend to agree with it in order to will it into being.
The left, as is its wont, uses the high-minded sounding “democraticization” of interpretation to sell this sleight of hand. But what it is is a kind of mob rule / might makes right idea of language. It’s a form of theft — rationalized as a kind of empowerment. And yes, it is undermining the very epistemology that we rely upon to order our social system.
–Whereas (conversely) from the perspective of authorship and meaning and interpretation as such, what we desire as a end of the interpretative process-- and what is essential within any epistemological system that lays claim to a coherent form of logic protected by the machinations of language – is a form of individual sovereignty granted to the originating text: your meaning is yours, and, while it can be misinterpreted (whether the fault is yours or not), what it can’t be is re-decided upon and coopted by some motivated group of potential usurpers (who will oftentimes turn around and lay the gist of their own re-imaginings at your feet, claiming you are responsible for, say, the “racism” they themselves have created from the signifiers you have ordered) and still be considered yours.
When Scalia and Garner argue that “[o]ur legal system must regain a mooring that it has lost: a generally agreed-on approach to the interpretation of legal texts,” what they are arguing in essence is that we must agree as a matter of necessity to interpret the same text throughout the entirety of the interpretive chain. And that is done by adopting the commonsense and linguistically obvious precept that the text, as written and then passed by a legislature, contains within it a specific and fixed intent.
Some over the years have chided me for concentrating on such seemingly arcane matters here with respect to language and interpretation. Linguistic concerns are “fundamentally unserious” when what politics boils down to are the more important matters of, eg., making sure Mike Castle is re-elected.
But as should be more and more apparent to conservatives and classical liberals, it is the control of language — and the assumptions about how that language works — from which all else follows.
If we don’t fix the foundation, it matters not who has temporary control over the house and its rent.