In the comments to yesterday’s post, Ernst asks, “Jeff, how does intentionalism as an legal hermeneutic relate to originalism?”
This is a good question, so I thought I’d turn my answer into a separate post. Here’t goes: Originalism sets the boundaries for what comes to count as the text under examination for purposes of claimed interpretation: it forces the central and indeed kernel acknowledgment of intentionalism that the text is a document intended by an agency, that it isn’t living but rather a product of human work that is thereby fixed and complete. There are those like Scalia who claim to be originalists AND textualists simultaneously, but as I’ve tried to show, Scalia merely misidentifies what it is he’s doing (a proposition one lawyer sniggers at — confidently! — because after all, we know that lawyers are never wrong and are always and forever the smartest among us, praise be to the high priests of Civilization, amen!), because he doesn’t wish to be seen (I suppose) as what is now called a “purposivist”: he, like everyone else, is an intentionalist, of course — and the question always boils down to, a) can what is being done to the text be called “interpretation” to begin with, and b) whose intent is being privileged?
Intentionalism acknowledges the central tenet of agency at each point on the communicative chain; it recognizes that things such as code, convention, intertextuality, intratextuality, irony, historical situatedness, cultural dialogic, and so on., are all valid and potentially useful tools for interpreting a text if indeed what it is we wish to do with a text is try to decode what was intentionally encoded — presumably, in most cases, with the desire to be understood (there are of course cases where the intent is meant to be ambiguous or to play on multiple meanings simultaneously, in which case sigs can be formed by adding multiple signifieds to signifiers: irony, plays on words, etc.)
Textualism is dangerous as a legitimized methodology chiefly because, as we’ve heard Scalia claim, it pretends to bracket intent entirely. It does not, of course: it merely says that it is not going to be beholden to the original intent of authorship (which can be transferred to ratification for our purposes, a kind of ‘signing on’ to the text as a co-author) in order to reach an interpretive conclusion.
Scalia’s textualism is generally far less dangerous than that deployed by the left routinely to uncover “dog whistles” and the like in that it gives itself very limited latitude to play with signifiers and thus often times will match intentionalism in its output. This is likely why Scalia finds no problem with his formulation. But any methodology that claims it need not appeal to original intent — to the text as the output of some agency — is giving itself license to become the operative agency, no matter how deferential it may be in practice. It justifies the rule over meaning by the reader rather than the utterer / writer.
Again: it is different to say: 1) “in my reading, what the text signals for purposes of interpretation is X; and though you may have meant Y (and there’s a good chance you did), and though you still desire Y, the fact that you haven’t signaled Y precludes me from allowing the text to stand as if you’ve said Y”, and 2) in my reading, what the text signals for purposes of interpretation is X, therefore though you may have meant Y, the text tells me you must have meant X and Z and whatever other things I can find as well once I stop concerning myself with what you actually meant. Your text, once I bracket your intent, is OUR text, and whatever we can reasonable find in it is what it means. Therefore, thanks for the signifiers: we’ll take it from here. We’ve got some creative writing to do!”
No one would accept the latter as a controlling interpretive strategy. And yet that IS what textualism allows — and why it is important we are clear about what it is we’re doing when we claim to interpret.
In re: Purposivism, the only requirement seems to be that you’re able to claim that the text is ambiguous —- something you get to by way of textualism (you disregard the intent you’re seeing signaled and trying to work the signifiers to form a pattern of minor incongruity) — in order to claim you know an overall corporate intent that has no where been signaled.
As intentionalists will note, even IF your reading of intent is correct, your job, by way of constitutional role and legal convention, the latter being an important convention for a stable rule of law, is to make sure that intent has been signaled so that the law can be read repeatedly using the same text by people who don’t seem to boast your special knowledge of a hidden intent. In the end, you are editing a co-writing a law to say that it comports with the intent you see. If you’re a doctoral candidate in English literature building this case, many will see it as clever; if you’re a SCOTUS Justice, many will find it wholly illegitimate and both self-serving and self-aggrandizing.
many will find it wholly illegitimate and both self-serving and self-aggrandizing.
And like geoffb pointed out, you can’t can’t get much more self-aggrandizing than Roberts and Kennedy.
No one would accept the latter as a controlling interpretive strategy.
Except for the entirety of academia and all of its slop-over into the popular imagination (if I detect racism, you’re a racist).
But I knew you meant that. :-)
your job … is to make sure that intent has been signaled so that the law can be read repeatedly using the same text by people who don’t seem to boast your special knowledge of a hidden intent.
THIS +1000
But as Insty quips, that doesn’t leave sufficient opportunities for graft.
Also doesn’t keep the little people in their place. I mean, what’s the point of having special knowledge if you can’t exercise it?
At the end of my street is a sign, evidently emblazoned with an emphatic shade of reflective red and a single word. In English.
I constantly run the intersection. The neighbors run it too. After all, we didn’t erect this sign and really, don’t know who did or why, although the local cop tells me that as of this year, it’s aimed at cutting speeding. So stop speeding.
and the person who gets T-boned who expected the plain meaning of the words to be followed well, he should of know better.
Here’s one way to sum things up:
Scalia acts as an intentionalist while purporting to back a theory of interpretation that privileges the intent of the reader, provided the reader can show the reading on offer to be plausible, given an empty set of signifiers he’s re-signified for his own purposes and using his own intent.
Roberts acts as a textualist while trying to act as an intentionalist, finding in the signifiers room to dismiss clearly signaled intent as ambiguous in order to lay claim to an unseen, secret, overriding intent that he lays claim to and then adds to the text as issued. He has already decided on the purpose and reasons backwards as an editor in order to make sure that purpose is served.
Frey acts as a liar, a context-rapist, and a craven limited populist who gives aid to the textualist maneuverings of leftists and anti-foundationalists by trying to tether the fact of intentionalism to the incoherence of purposivism while at the same time trying to dislodge textualism from creative writing and the privileging of the intent of the motivated interpretive community who is not asked to answer for its political motivations.
Hell, we don’t even expect the 4 “liberal” Justices to rule any other way from the outset.
Actually, no. Which is why they hide what it is they’re doing in much the way Scalia confuses what he’s doing.
I recall a legal story once that could be used as an example here somehow. Not in the mood to do it myself.
Going from memory, it involved parking meters and a sign displaying hours of operation. The sign said something like “Meters operational from 6:00 AM to 12 PM”. Someone who got a ticket for not feeding the meter after 12 noon got a ticket. He fought it.
The judge agreed the sign was incorrect in the use of AM & PM but, made the man pay the ticket because he should have known what the city meant.
(I think most signs use “midnight and “noon” these days)
many parents learn early that children easily hear what you are saying and discard the intent
so “Take a shower” has to be revised to say “Go stand in the shower, turn on the water, get under the water, use soap all over your body for at least three minutes, rinse all the soap off, turn off the water, get a towel and dry off”
Whatever Scalia’s doing, at least he’s consistent, unlike Roberts.
I suppose that’s an example of incoherent and foundationless interpretive strategy in action.
Like when your boss asks “can you do this?” and you say “yes”. I lost more jobs that way ;-)
angels on the pin news
Three Symmetries Between Textualist and Purposivist Theories of Statutory Interpretation—And the Irreducible Roles of Values and Judgment Within Both
>The Article’s analysis,
which reveals previously unrecognized symmetries between the two theories, is consistent with, but does not depend upon, empirical studies indicating that judicial ideology matters more than methodology in determining interpretive outcomes. It rejects the frequent claim of textualists that their theory much more stringently restrains value-based decision making than does purposivism.<
I’m just a simple country lawyer and I’m not sure how this all fits into intent, text, interpretation, etc. There is a very simple tool good lawyers use called “Defined Terms.”
When I want to make sure that everyone knows what property I am talking about, I write “the real property and improvements located at 331 Main Street, East Bumfuk, Rhode Island (the “Property”).” Thereafter, every time I refer to the Property, everyone with half a brain cell know that the only property to which I refer is 331. Not 333, even though and especially cuz it’s right next door and looks exactly the same, but isn’t.
So when our betters in congress define “exchanges created by the federal government” and then define “exchanges created by a State”, I am signaled by the drafters that they intended to mean two different exchanges. For the Dread Pirate Roberts to then declare that the text is “ambiguous” is a falsehood of the highest order. Something like declaring that a defined penalty is really a tax. If I was a law prof, I’d have flunked the bastard. Twice.
I thought about bringing this up in the late lamented thread dominated by Tracy, but didn’t have the heart to breathe more life into that morass of self-justification. To wit, for ten thousand years, the word “marriage” has signified that unique union between an adult male and and unrelated adult female, with all that springs therefrom. To now claim that a homosexual relationship is identical is non-sensical. Sure, it can be close, and we can agree to give it identical rights and responsibilities, but it will never, ever be exactly the same, by its very definition – one male, one female.
The list that Lee and I and others caricatured shows the dilution of the original word. No, marriage is not the same as garriage, polygamarriage, animarriage, robomarriage, vegematic (oops), etc. Sure, it can be treated as the same for legal and societal purposes. But you cannot hijack the original word to mean something that it isn’t.
Note that I didn’t even get into other highly persuasive arguments regarding procreation, religion, animals murdering other animals, etc. I only focussed on the literal definition, as accepted and understood by billions of interpreters, readers, audiences, what have you. I signify “marriage” means this particular relationship; the fact that five justices now decide to say that the word means something entirely different, flies in the face of human experience.
An apple can be many varieties or colors, but it will never be an orange, Tracy. Even if the orange really tries to convince everyone that it is really, really close to being an apple.
Pithy.
You’d think if the supreme court had gotten the intent wrong, you’d have members of congress coming out of the woodwork to claim, and even show some emails demonstrating that all along they assumed that there would be no subsidies for people who got insurance through a federal exchange. You would have expected them to balk the moment it became clear that subsidies would be equally available through state and federal exchanges. So where was this outcry?
You might have expected congress to stand up, but that means you haven’t been paying attention.
Both D’s and R’s like big government these days, they only fight over who gets to rule and to collect donations from fans.
This ain’t America no more, OK?
Of course there are exceptions that really show your ass…
Textualism Is Theft.
>You’d think if the supreme court had gotten the intent wrong, you’d have members of congress coming out of the woodwork to claim, and even show some emails demonstrating that all along they assumed that there would be no subsidies for people who got insurance through a federal exchange. You would have expected them to balk the moment it became clear that subsidies would be equally available through state and federal exchanges. So where was this outcry? <
you be dumb dumb. you be stupid about "ruining elites"