…if you listen closely to the left’s current campaign to marginalize and delegitimate the Constitution (from Jerrold Nadler’s protestations that the GOP ridiculously views the document as a “sacred text” to Dahlia Lithwick’s suggestion that it is “fetishized” by the right, almost like a parchment Buddha), you’ll hear this argument, which — for what readers I have left — should sound quite familiar to you: per Lithwick, appearing on MSNBC,
language / intentionalism
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,
October 25, 2010
Manufacturing Manufactured Consent
James Taranto takes up the Juan Williams story and gives it a few shakes: So how is it that Juan Williams got the ax while Nina Totenberg is still a member in good standing of the NPR news staff? “The answer is obvious,” says [Stephen] Hayes: “It’s Fox.” We’re not so sure. CEO Schiller quotes NPR policy as stipulating that in outside appearances, “NPR journalists should not express views they
May 19, 2010
a few final words on the intentionalism / textualism divide (UPDATED)
[updated from 5/17 – ed.]
May 14, 2010
Advice to an egret, revisited
Were I to answer a certain egret’s concerns, I would say that we are not talking past each other, and that I know that even though we started off speaking about interpretation and have now moved on into application or enforcement or implementation, the principles of intentionalism are nevertheless still determinative. To wit, let me restate it this way and see if it makes a difference: the “interpretive” standard used
May 13, 2010
On textualism?
Rather than answer Patrick Frey’s latest “challenge” to intentionalism by explaining yet again how language functions over the life of a speech act, I have decided to try a new approach. Frey and many of his commenters claim to be textualists. Frey has argued (or at least, implied) that textualism as an interpretive methodology is if nothing else practical (and therefore legitimate) — though on what basis this is so
May 12, 2010
“Why Bother With the Constitution?”
Stanley Fish, erstwhile champion of reader response theoretics, channels his inner intentionalist. Not that he really has a choice — as both he and I continue to make abundantly clear. But be that as it may. Using as his exemplar the text of the First Amendment, Fish fashions his rebuttal to David Strauss and the Living Constitutionalists, who have taken to arguing that, when it comes to constitutional interpretation, “the
May 12, 2010
"Why Bother With the Constitution?"
Stanley Fish, erstwhile champion of reader response theoretics, channels his inner intentionalist. Not that he really has a choice — as both he and I continue to make abundantly clear. But be that as it may. Using as his exemplar the text of the First Amendment, Fish fashions his rebuttal to David Strauss and the Living Constitutionalists, who have taken to arguing that, when it comes to constitutional interpretation, “the
May 5, 2010
Provocateurism 14: Originalism vs Textualism, continued
Patrick Frey’s latest attempt to address intentionalism as it functions in the realm of legal interpretation again falls short — first, because it miscasts my positions, and second, because it draws its conclusions from the very faulty premises it posits. Writes Frey: Goldstein argues that there is a distinction between what a law “means” and what a judge does with that knowledge. However, for Goldstein, judges should always enforce laws
May 2, 2010
Provocateurism 13: Originalism vs. Textualism, cont.
In response to my recent post on legal interpretation and intentionalism, Patterico raises a series of questions that speak to what I think are a number of common misunderstandings about language as it exists on the structural level. He writes: As I understand Goldstein’s latest post, he argues that textualist judges are, in most cases, reaching the same result as intentionalists would. The reason, he explains, is that lawmakers tend