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 text of the Constitution will play, at most, a ceremonial role.” Argues Fish:
It can’t be that constitutional protection is granted to any verbal production whatsoever, for some words — like those that directly incite riot or perform treason — are not speech within the meaning of the amendment. How do we know that? As Strauss repeatedly observes, the First Amendment’s text doesn’t tell us. We have to figure it out and we do so by asking what it is that they had in mind when they singled out speech for protection. What did they fear? What did they hope for? The standard answers to those questions are, they feared the censoring and criminalizing of dissident speech, and they hoped for free and open discussion of matters of public concern.
In short, they wanted to protect the expression of ideas, but not expressions like “incitement to riot” and “treason,” which are indistinguishable from action. And thus they wanted (or would have wanted, had they been asked) to withdraw protection at the point where speech crossed the line and became action in a way that constituted a clear and present danger. So these phrases and distinctions (along with a great many others), while not named in the amendment, are implied by it, implied by the special concern for speech and therefore, despite what Strauss says, are derived from it. What looks like “evolutionary accretion” — self-generating, self-modifying, immaculate in conception — is, in fact, the unpacking, by succeeding generations, of a text recognized as authoritative and binding. The question is not, as Strauss would have it, is this proffered meaning in the Constitution? The question is, can a chain of inference be formed that links this meaning to something the framers can be said to have intended?
Why is Strauss trying to take the Constitution out of the constitutional interpretation loop? Because he wants to liberate us from it as a constraint. He repeatedly invokes Thomas Jefferson’s remark that “The earth belongs to the living and not the dead” and expands it into a question: “What possible justification can there be for allowing the dead hand of the past . . . to govern us today?”
That is like asking what justification is there for adhering to the terms of a contract or respecting the wishes of a testator or caring about what Milton meant in “Paradise Lost” or paying serious attention to the items on the grocery list your spouse gave you. In each of these instances keeping faith with the past utterances of an authoritative voice — the voice of the contracts’ makers, the voice of someone’s last will and testament, the voice of the poet-creator, the voice of the person who will make the dinner — is constitutive of the act you are performing. And not keeping faith raises the question of why we should bother with the Constitution or the contract or the will or the poem or the list at all. Why not just cut out the middleman (who is not being honored anyway) and go straight to the meanings you want?
Strauss has an answer to that question: “The written Constitution is valuable because it provides a common ground among the American people.” But as it turns out, common ground is provided not by the Constitution itself but by a survey of “widely acceptable” meanings, which are then attributed to the Constitution as if it were their source. The text, Strauss advises, “should be interpreted in the way best calculated to provide a point on which people can agree.” The way to do this, he adds, is to give the words of the Constitution “their ordinary current meaning — even in preference to the meaning the framers understood.” After all, “the original meaning might be obscure and controversial.”
[my emphases]
Where Strauss differs from conservative textualists like, say, Scalia, is only by manner of degree. Textualists will argue that the text should be interpreted in the way best calculated to provide a point on which people can agree — that is, they appeal to convention, as do advocates for the Living Constitution — but they are careful to stipulate that the conventional meaning they privilege is one drawn from conventional usages contemporaneous with the production of the text; using such methodology, the appeal is still to convention and historical situatedness (convention is, after all, a reflection of common usage within a given “culture”) — that is, the appeal is still to what a majority of “reasonable people” at the time of the text’s crafting would have understood the text to mean — but as I’ve noted in the past, the appeal to conventional language is itself a convention of legal interpretation, one used by those in the guild to constrain the breadth of possible readings and make the process of interpretation as efficient as is possible under linguistic conditions wherein signs are created by the arbitrary connection of signifiers and signifieds.
So while a Living Constitutionalist will counsel that the text of the Constitution should be interpreted using “ordinary current meanings” of words “even in preference to the meaning the framers understood,” the textualist, too, will counsel that the text should be interpreted using the ordinary meanings of words — albeit ordinary meanings removed to a specific point in time — “even in preference to the meaning the framers understood,” or even in preference to the framers’ intent.
But as Fish notes:
This is an amazing statement. The Constitution becomes common ground when it becomes a vessel for meanings it does not contain. It acts as a binding agent as long as you don’t take it seriously but take care to pretend that you do. As long as an interpretation of the Constitution “can plausibly say that it honors the text, the text can continue to serve the common ground function.”
What text?
Not the text of the Constitution, which has been replaced by a “plausible” facsimile of it. There is a definite strain in Strauss’s argument here as he continues using a vocabulary — text, Constitution, interpretation — that he is at the same time undermining. You don’t interpret a text by looking for meanings people would find agreeable. You interpret a text by determining, or at least trying to determine, what meanings the creator(s) had in mind; and the possibility that the meanings you settle on are not ones most people would want to hear is beside the interpretive point.
The incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, “it makes sense,” he says, “to adhere to the text even while disregarding the framers’ intentions.”
I am at a loss to know what “adhere” is supposed to mean here. According to the dictionaries, “adhere” means “to stick fast to” or “to be devoted to” or “to follow closely.” But you don’t do any of these things by “disregarding” the intentions that inform and give shape to the text you claim to “honor”; you don’t follow closely what you are in the act of abandoning. Instead, you engage in a fiction of devotion designed to reassure the public that everything is on the (interpretive) up and up: “The Court could take advantage of the fact that everyone thinks the words of the Constitution should count for something.” Here “something” means “anything,” as long as it hooks up with what everyone thinks; and the advantage the Court is counseled to seize is an advantage gained by pandering. If this is what the “living Constitution” is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.
[my emphases]
What Fish is getting at when he talks about a “plausible facsimile” of the Constitution is what I have been getting at when I speak of “creative writing” with respect to the process of resignification. For a text to be a text, we have first to assume it is made up of language — that what we are receiving are signs — or else we have no reason to pretend to interpret to begin with: if what we are engaging is merely a collection of accidentally-produced signifiers — marks or sound forms that have no intent to communicate behind them — the only plausible way we can then see these things as language is to supply our own intent, which is what will turn these marks or sounds into signs.
It follows, then, that to conceive of the text of the Constitution as existing outside intent is to conceive of the text of the Constitution as being produced accidentally — a proposition even the most staunch of textualists will surely see as ridiculous.
And yet when a textualist claims he can “interpret” a text while disregarding the intentions that produced it, what he is essentially telling you is precisely that: he is engaging a set of marks — an accident that resembles language, a facsimile — that he can make mean by supplying the requisite intent necessary to turn the signifiers back into signs — and so back into language.
It makes no theoretical difference, linguistically speaking, whether the text is resignified by the textualist bent on dismissing the author(s)’s intent using those significations “most reasonable people” would agree to use, or whether he is resignifying using a fantastical language of his own invention. He is still replacing the original intent with his own intent — in the case of the textualist, his intent to adhere closely to convention, and so to signify conventionally.
If you believe that you are adhering closely to convention because that’s what you believe those who intended the signs meant you to do (that is, you believe that they intended to adhere to conventional usage), you are acting as an intentionalist; if you believe you should adhere closely to convention regardless of what the original intention was, you are still acting as an intentionalist — only you have privileged your own intent over the intent of those trying to communicate with you. At which point it makes little sense to pretend that what you are after is an “interpretation” of their speech act.
As I noted on several other occasions, what matters here is what you think you are doing when you interpret. To reprise the takeaway from an earlier post:
To say […] “I know what you meant, but what you meant is signaled in such a way that it couldn’t possibly be interpreted as consonant with your intent unless [the receiver of the message] also knew beforehand what you meant […] is different from saying “I know what you meant, but what you meant doesn’t matter, because convention says you meant something else, and your intentions are irrelevant when it comes to determining what you meant.”
In fact, in the first instance, you are holding the original intending agency responsible for failing to signal his intent — while allowing that he means what he means; in the second instance — the one supported by the theory of textualism (if not always in practice) — you are telling the original agency that what he meant or didn’t mean is not important, because consensus (as determined by convention) will tell you what you meant.
At which point all you’ve done is strip the original text of its meaning, turned it into a set of signifiers, and then, by your own act of intending, attached to that set of signifiers the signifieds you prefer, taken from the realm of “convention.”
Or, to put it another way, you have ascribed your own will to the marks in order to make them mean — and you have done so at the expense of the signs you were originally asked to interpret. The result being that you haven’t “interpreted” at all. You’ve merely rewritten — and so created an entirely new text.
And ruling in favor of the text you created is hardly the kind of dispassionate functionality one expects from a judge.
When a textualists asks “does a failure on the part of the utterer to signal intent allow the judge to interpret the text as a reasonable man, without consideration of intent, might?” and goes by that standard, the flaw is in the question as phrased. Were he to ask “can a reasonable man be expected to know the author’s intent from what’s been signaled?” he is asking a different question, and basing his reasoning for ruling a particular way on a different standard: to wit, he isn’t ruling that because intent is unknowable, we can dismiss intent and rule on the basis of convention; instead he is ruling that because intent wasn’t signaled, a reasonable man couldn’t possibly reconstruct the intent.
A distinction with a big difference.
One can, particularly in instances where convention is heavily relied upon to signal intent, come up with the “right” reading by not appealing to intent at all; and those who appeal to intent could be entirely off base in their own interpretations. But how you get there matters, because if you institutionalize a rule based on the fact that it once proved effective — even though you know that rule is based on faulty logic — it will matter in situations where the outcome isn’t based on the variables present in a set of (completely unlikely) hypotheticals. So I care how you come to your conclusions about what something means. And you should to. Because textualists and Living Constitutionalists are advocating that, so long as you get where you wanted to go, it doesn’t matter how you got there.
Or to put it more forcefully, what they are advocating is that the ends justify the means. Hardly the position most conservatives want to take, I should think.
This post ties it all up into a neat package. Gonna forward it to a couple of my friends who don’t see that distinction.
Isn’t Stanley Fish an Illini?
Would there were a way to include “destructive writing” in the simultaneously fit “creative writing” label, for both are necessarily undertaken.
Didn’t Burke have something to say about compacts between the living, the dead, and the yet to be born?
does a failure on the part of the utterer to signal intent…
How do we even arrive at this determination? “I can’t tell what this text means” is a far cry from “what this text means is not what you think it says.” One speaks from a neutral (or at least neutralized) position, while the other speaks from some manner of privilege.
Jeff, you mentioned the other day your surprise at Fish’s apparent change of stance from his reader-response teachings: I’m wondering whether you’ve found — either in Fish’s writings or in your own reconsideration of Fish’s earlier writings in the newer light of such as this essay — some reconciliation of the two views? (I’ve only got a gist of the notions involved in the reader-response material, never having read any of it myself, so the premise of my question could easily be absurd on its face for all I know.)
“[A]uthorative voice” hah! We all know that’s dead-white patriach speak for THE OPPRESSION!
He repeatedly invokes Thomas Jefferson’s remark that “The earth belongs to the living and not the dead” and expands it into a question: “What possible justification can there be for allowing the dead hand of the past . . . to govern us today?”
Gee, you’d think that appealing to the words of a “dead hand” in order to justify not listening to [the intended meanings of] statements made by dead hands would kind of deep six your own argument?
Unless, of course, you are a functional
idiotInfant.Apparently, in Strauss’s world, “understanding” a statement simply means “repeating the correct-by-vote-or-force word transformantion/appearance” of the statement.
Homo Totalitarianus lives!
The “dead letter” argument is uniquely specious. In Will interpretation, the testator is deceased – therefore it may be helpful to consult collateral sources in order to give the Will meaning. The Constitution is decidedly not a dead letter, because the American people have been alive, uninterrupted, from its adoption and are free to amend it to change or clarify its meaning at any time.
Sdferr —
The reconciliation, such as it is, comes from the simple process of following the intent. Reader response conceives of meaning as an event that occurs in the engagement of a reader with a text. But while what readers can do with texts conceived of as unintended can be both useful and interesting, what is evident is that the interpretation of a speech act is being replaced with the creation of new private text based on the marks being engaged.
Fish realized that the intent was merely changing places — and that while authorial intent can’t constrain the conclusions people draw, to say that they are interpreting (or even that they are dealing with the same text) requires that they be sharing more than signifiers.
My own rejection of reader-response (as a fiction writer, I had a natural aversion to the “methodology” as it was being taught, because from a pedagogical standpoint, it made teaching THE text under consideration, that is, my text as a writer, impossible, I reasoned) led me to investigate all manner of interpretive theory. And what I found, from the perspective of an educator assigning a text we all were assuming we shared for purposes of discussion, is that without an appeal to intent, it makes just as much sense to accept a student’s “interpretation” that turned the pages of Moby Dick into a series of origami pelicans as it did to accept a “reader response” essay.
When discussing a text, are we interested in what it means as an effort to willfully say something — or are we interested in what individuals with their own intentions can do with a text once it is no longer the same text, interested that is in what they can make it mean to them?
JD, he was at UIC for a while. I remember being really pised off because they gave him a boatload of money to come there.
And curse you, Jeff, for making me like something Stanley Fish wrote…darn, this intellectual fair-mindedness is uncomfortable sometimes. It would be so much easier to be like the rigid, ideologue Left and simply reject anything coming from an impure source.
JT Peden —
Excellent point. One no doubt lost on Nishi — and on those who find her thinking uniquely sparkly.
So Strauss sees the Constitution as America’s version of the Black Stone of Makkah (“Mecca”): an object of veneration, fraught with Meaning, which does not communicate that meaning in any way. That leaves himself and his fellows — dammit, “ilk” fits perfectly here — to play the part of imam, producing the hadith that clarify Meaning for the Faithful.
He can go to Hell. Along with his little dog, too.
Regards,
Ric
Yes, that makes sense, and indeed, though you’ve perhaps been more inclined to stress the potential harm that can flow from too ready an acceptance of the abandonment of original intent to the alterations of a posing interpretive reader and contentment to call that interpreting, still, the minute examination of that move I’d suppose I could see as an account of a form of “reader-response”, a phenomenological look at what the “responsive [re-writing] reader” is doing. I guess my gisted tenuous grasp at the theory presented to you was, that it, in contrast stood as a sort of advocacy as to that reader’s move, [and where my assumption may not be justified at all].
So long as he doesn’t call the dog “boy” while wandering through Hampton, VA, he should be able to make it to Hell just fine, Ric.
The funny thing is that the same “dead hand” crowd will brook no interpretive hijinks with their favorite Supreme Court opinions. Those are always lucid and unalterable in meaning.
Well, in the sense you mean, sdferr, the reconciliation happens when we conceive of a text outside of the necessity of interpreting it. I too advocate such a move, so long as we recognize that we are using the source material to do something other than interpret.
For instance, origami can be quite beautiful, even if fashioned from the pages of American Psycho.
Would the origami therefore be misogynistic? I’d have to ask a feminist response theorist.
origami can be quite beautiful, even if fashioned from the pages of American Psycho.
Would the origami therefore be misogynistic? I’d have to ask a feminist response theorist.
Oh! Oh! Oh! I can answer that one! Oh! Oh!
Sexist misogynistic tool of the partriarchy, you are.
She not in right now. Can she squawk you when she gets back?
This intentionalism of which you speak is encountered all the time in arriving at the meaning of hieroglyphics written thousands of years past which themselves endured and continued to evolve over several millennia. In them are encountered such linguistic oddities as:
1) Abbreviations, single glyphs that stand for whole groups of signs, abbreviated because their meaning is so well understood. Ex: ankh, wadjah, seneb for “may he live, be prosperous, be healthy.”
2) Transpositions, displacement of a sign for a more pleasing graphical appearance. 3
3) Honorific transposition intended to place a god or a king at the front of a group when the word is actually spoken elsewhere.
4) Monograms, ideograms combined with phonograms painted either above or directly over one another.
5) Defective and superfluous writings, sign groupings with sounds left out for one reason or another, conversely signs added for no apparent reason at all.
6) The practice of using biliteral signs (two sounds) to substitute for alphabetic signs.
7) Sharing of determinitive signs within a group of closely related signs.
8) The avoidance of like consonant signs within a group leading to their complete omission. This is especially true when one word ends with the same consonant with which the next word begins.
9) Dubious readings, the consequence of the complex and often defective nature of glyphic writing. Scholars still argue about the correct transliteration of some of the commonest words like “beer” (henket or heket) and king (nesew or seweten).
10) The strangeness and inconsistencies of the group of personal pronouns with all their attendant vagaries and misuse ranging across tense, mood, number, and gender, sometimes placed at the front of clauses other times behind, used as subject of sentences and subject of adjectival clauses.
11) Word order differing in the dative and other adverbial phrases, modified when the subject or object is a pronoun. Particles termed enclitics that cannot stand at the beginning of a sentence may take precedence of the subject or object or dative. Often left untranslated rf (wishes, commands, questions, etc.)
12 ) The compound form of the paradigmatic verb construction which confers upon sentences the sense of a detached independent statement.
13) Verb sentences as noun clauses — the ease with with Egyptian hieroglyphics treats an entire sentence as a noun. This has no equivalent in English.
These are seen often along with many many many other oddities. What’s a poor boy to do? Translate, that’s what. Thus “bin wahy itrew ahew m enenen” literally “bad (it) is river empty of water” through the genius of translation magically becomes, “It’s a dirty low-down rotten no good river wot got no water!”
ROMANUS EUNT DOMUS!
When discussing a text, are we interested in what it means — or are we interested in what individuals with their own intentions can do with a text once it is no longer the same text?
I’d say the alphabet and rules of grammar, etc., serve quite well to cover the latter. Yet, still, Heaven forbid an author having intent – because of the “unwarranted reliance” upon a self!
From the blurb:
I was of the quaint, old fashioned school that learned the Constitution evolved by the process of amendment. Stupid Silver Whistle. I’ll never be a leading constitutional scholar.
This is an amazing statement. The Constitution becomes common ground when it becomes a vessel for meanings it does not contain. It acts as a binding agent as long as you don’t take it seriously but take care to pretend that you do. As long as an interpretation of the Constitution “can plausibly say that it honors the text, the text can continue to serve the common ground function.”
I’d like to note that Fish is restating Strauss’s statements in an analytical manner such that the restatement shows the implications. Fish is not advocating these positions.
In case it was unclear. Because I had to read farther on to determine whether he was stating those things approvingly or not.
Anyone want to lay odds on which Lefty pet projects won’t eventually be found in the Great Parchment Wishing Well?
For a text to be a text, we have first to assume it is made up of language — that what we are receiving are signs — or else we have no reason to pretend to interpret to begin with: if what we are engaging is merely a collection of accidentally-produced signifiers — marks or sound forms that have no intent to communicate behind them — the only plausible way we can then see these things as language is to supply our own intent, which is what will turn these marks or sounds into signs.
Note to Patterico Readers
If you find a stone tablet in the jungle with markings on it, you have to establish whether the marks were made by a human hand who was carving written language into the stone.
If it’s just random scrapings, you should stop here and not attempt to interpret them. (You can try to determine how the marks got there, but you can’t assign linguistic meaning to them.)
If you determine that the marks are indeed written language, and want to interpret the meaning of the marks, you have to appeal to the carver’s intent. You can’t just make up stuff and call it “interpretation.”
Perhaps we can pull this out of the realm of the theoretical and give a concrete example: the Commerce Clause.
[The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes
The Wiki entry shows lots of wrangling about what constitutes “commerce,”
The Federalist Blog opines on what that means, appealing to the Founder’s writings.
But I can’t find the case (don’t know the name) where SCOTUS ruled that the dude what grew and ground wheat for his own use and it was deemed under the Fed’s jurisdiction.
Thus ignoring the meaning of the word “among” while obsessing over “commerce.”
Therein lies the beginning of sorrows.
Reader-Response theory is more interesting from a sociological standpoint, methinks. It’s interesting to see how people from different backgrounds in different times react to the text, and it’s interesting to see whether the readers attempted interpretation or something else entirely.
As such, reader-response does describe what is likely to happen when a reader encounters a text, but it doesn’t elucidate the text itself.
Fascinating stuff, bour3. I wish I had more time to study linguistics.
“But I can’t find the case (don’t know the name) where SCOTUS ruled that the dude what grew and ground wheat for his own use and it was deemed under the Fed’s jurisdiction.”
That would be the unanimously decided 1942 Wickard v Filburn, J. Jackson writing for the Court.
sdferr: Thanks.
Now, someone go read that and tell me why they ignored the word “among” and fixated on “commerce,” to our great detriment.
“…why they ignored the word “among” and fixated on “commerce,” to our great detriment.”
Just guessing, to take a stab at the answer, but I’d think the phrase “case law” would just about cover it.
You can’t just make up stuff and call it “interpretation.”
The contents of fifty or sixty years worth of Dissertation Abstracts and scholarly journals too numerous to count say otherwise.
The contents of fifty or sixty years worth of Dissertation Abstracts and scholarly journals too numerous to count say otherwise.
Were they to suddenly disappear from the face of Earth, how would you tell?
You can’t just make up stuff and call it “interpretation” without being a mendacious douchenozzle.
Fixed that for me.
If David Strauss had his way, how wopuld we be able to distinguish the result from a Year Zero Groundhog Day every day.
Alec in #16 suggests a fun way to demolish anti-intentionalists. When they tell you what something really means, you tell them what they really mean. They have two possible responses:
1) You aren’t a privileged interpretator, you double-digit moron.
2) That’s not what I meant; only my intention determines what I mean. (which makes them an intentionalist)
#31
Answer:
WWII
Production quotas etc.
I see it as a snapshot taken in a time that was beyond difficult. War in Europe, sneak attack on Pearl Harbor, 1942 it all hangs in the balance.
Commerce?
We were on a total war footing and unsure of our survival.
He repeatedly invokes Thomas Jefferson’s remark that “The earth belongs to the living and not the dead” and expands it into a question: “What possible justification can there be for allowing the dead hand of the past . . . to govern us today?”
1] Because, though imperfect, it works? Because, though imperfect, it promotes and protects the rights and freedoms of individuals?
2] Or because Strauss has actually not made either a logical or an empirical argument? He seems to admit that he knows the intent of the Founders – otherwise what is the dead hand of the past he refers to which is still governing us today? Therefore, he is the one who should state what he thinks it is and then justify why it should be abandoned – instead of only begging the question – to the blanket effect that “we should abandon the Founders’ intent” – while merely “proving” only that the Founders are dead and we are alive.
I need this joker to change his name. Straussian can’t be allowed to become a pejorative.
SteveG,
War footing does not excuse overreach by the federal government.
This particular case stretched the Interstate Commerce Clause beyond all reasonable intrepretations.
bastiches: The humanities would be humane and the social sciences would cease to be anti-social.
Dicentra: So that’s what the D stands for!
bh: The same heads that will nod in sage agreement with Strauss already consider Straussian a perjorative. Imagine David Strauss performing a (Leo) Straussian analysis of the Federalist Papers in search of the concealed meanings within the Constitution. Of course that would mean that the Framers were hiding the “true” meaning from themselves… Jeff would probably say something about the caustic quality of irony.
Strauss is not trying to “liberate us” from the Constitution. Rather, Strauss wants to liberate government from Constitutional restraints. Remember, the Constitution was originally designed to restrain government not people. Perhaps I’m putting to fine a point on it. Seems a rather important distinction, though.
Right now I’m reading some of David Ricardo’s texts, and in the introduction to one of them, it was noted how John Stuart Mill repeatedly and persistently badgered Ricardo to finally write a book. On account of Mill’s badgering, Ricardo eventually did, and it was his book that established him as one of the foremost economic theorists of his time.
In the same way with regard to Jeff G., although I very much appreciate the brilliance in his pieces like this one, I think it’s time he actually wrote a book about it.
Jeff, although your brilliance on this blog (the reason for the blog) is much appreciated, the more time you spend writing here is time not spent on writing the book that concisely and carefully explains all this.
Consider this my initial attempt to “badger” you to get away from this blogging (at least long enough, like a year or so, or two) to write it.
I hope others follow suit in badgering you.
All the best, – C.
p.s. And this means staying away from wrestling, too, until the book is done.
Jeff Goldstein’s Latest Attack on Textualism…
In his latest post on intentionalism and legal interpretation, Jeff Goldstein attacks textualism with arguments that (I think) talk past the arguments I have made in recent weeks. I have explained my position on this: “sometimes the speaker’s int…
Okay, I read it. My bad. Same argument. Lead with his irrelevant hypos as somehow meaningful.
Jeff won’t answer the question!
Answer the question!
Pepper!
P: Pfeffer oder salz, bitte?
D: Straußenfeder, nicht salz und pfeffer. Oder?
P: Natürlich!
So it’s come to this.
MEANING
it is what
it is
what it is
is it
what it is
is what
it is
is it not
But what
it is
is not
as it
should be
(dedicated to the kindest, wisest, warmest, most wonderful attorney to ever start a blog)
Re: #44
IIRC wasn’t there some project to publish a book containing a “best of” or a compendium of the writings of our host on this blog?
Here: To say […] “I know what you meant, but what you meant is signaled in such a way that it couldn’t possibly be interpreted as consonant with your intent unless [the receiver of the message] also knew beforehand what you meant […]” is to perform the function of an intentionalist. To follow that up by saying that, because you didn’t signal your intent properly, I as judge am sanctioned to supply that intent and then hide my authorship by claiming that it wasn’t me who signified in the way I ruled, but rather “convention” (which, as I keep reminding you, is but a construct we use to help us in our efforts to discern intent). That is, it is a backdoor way to hide the maneuvers you are using as a judge to make the law yourself.
If you wish to avoid that charge, don’t make the law.
If you know what something means but are confident that what was meant is not signaled in a way that makes proper interpretation likely, rule that the law as intended is poorly written, and that until it is fixed you refuse to honor it as part of the implied contract between legislators and those affected by the law.
Or don’t. I’ve laid out how textualism is, linguistically speaking, structurally identical to methodologies that advocate for a Living Constitution. All that has changed is the vintage of the convention being privileged for the purpose of determining a “public” meaning.
What you think you are doing when you “interpret” matters. All I can do is point out how and why.
IIRC wasn’t there some project to publish a book containing a “best of” or a compendium of the writings of our host on this blog?
Cowboy was doing it, but he’s vanished into the ether.
Cross-posted at Pat’s:
Straußenfeder = ostrich feather
Okaaaaayyy…
You know it seems to me I remember hearing once that, once you’ve established for the jury that a witness is a liar, the jury is well within its rights to treat the witness like Mary McCarthy did Lillian Hellman. So this shouldn’t be that hard for Patrick, should it?
If an audiences acts “on his words as if they meant something different,” they aren’t acting on his words at all. They are acting on their own words and attributing those words to him because they can plausibly say the he could have meant what they say he meant.
I’ve already shown several times now how an audience can accomplish the same thing without violating the rules of language and robbing the originator of the speech act of his meaning. But it seems pretending that a text can really be several texts simultaneously — and yet still treated as if it is a single text — is more convenient (and empowering) to those who wish to have the final say on what something means (even if they hide the fact that it is they who is having the final say).
And I don’t think Pat’s an intentionalist. He’s a conventionalist who doesn’t care what’s under the hood or how it works, so to speak, as long as it get’s him to where he wants to go.
If an audiences acts “on his words as if they meant something different,” they aren’t acting on his words at all.
Pat worded it poorly. “They act on his words even though he meant something different” seems to be what he’s getting at.
Everyone is an intentionalist. Some just actively deny it — and in so doing, empower themselves as the deciders of others’ meanings.
If he meant something different than what they are acting upon, what they are acting upon is not “his”.
I’m going to bed. This is all too depressing for words.
Fair point. But he still doesn’t care how he gets to where he wants to go so long as long as he gets there.
This is appears to be true. But worse, he wants to make sure everyone tells him it’s okay that he do so.
And now I really am going to bed. I’m sick — caught whatever my son had — and my wife is away on business again.
I may be unreachable tomorrow.
If he meant something different than what they are acting upon, what they are acting upon is not “his”.
Dicentra also worded it poorly. “They act
on his wordsas they please even though he meant something different.”Sometimes the intent is to be intentionally, stubbornly obtuse.
Like the kid who always replies to everything said to him with “Why”. Not to learn anything but to provoke an exasperated reaction from the adults.
Pat worded it poorly. “They act on his words even though he meant something different” seems to be what he’s getting at.
Trying to bring this back to Fish and Strauss for a moment. If they (or we) are entitled to act on another person’s words as if they meant something other than what that person meant, one of the rationales that “allows” us to do this is the democratization of discourse afforded us by the Public Space of Jürgen Habermass. Words are like property in communalist utopia: anyone’s belong to everyone else equally; and meaning is decided by conventions like …reader polls. This is the liberation from the constraints placed upon us by the “dead hands” of the Framers that Strauss is offering. We’ll be free to “[interpret] in the way best calculated to provide a point on which people can agree[;]” free to prefer “ordinary current meaning — even in preference to the [obscure and controversial] meaning the framers understood.” There is no philosophic difference between what Strauss proposes to do with the Constitution and what Frey, in his precious hypotheticals, posits to his hypothetical audience.
Somebody might want to point that out to him. But it won’t be me, because I decided last November that he doesn’t argue in good faith and I haven’t seen anything to make me change my mind.
That doesn’t mean I don’t admire the Sysiphean doggedness of Jeff and Dicentra.
“They
act on his wordsas they please even though he meant something different.”Dicentra,
I was thinking: They act despite or in spite of his words but your revision works as well.
This like so much of the common rhetoric on the left is a marketing tool. How liberating, think of the freedom we shall each have over the tyranny of words.In practice it is anything but as a select few will determine the “approved” meaning for all.
Since thought itself requires words then by controlling the meaning of words you can control what can be thought, for without the “handle” of a word to hang a concept onto it will cease to be a part of the inner life of the mind.
From Pat:
Well, sorry, some of us can tell what’s going on. We can read tone. We can see the dynamics exhibited in the “friendly” chat. We notice the way you frame issues and your unrelenting rhetorical tricks. We can identity a person trying to score meaningless points with repetitive questions.
Deal with it. You’re not arguing in front of morons here, no matter how useful that might have been for you.
Some people earn that sort of treatment. BECAUSE OF THE DEATH THREATS!!!
No.1 What are these dead jews doing here?
No.2 You said,”Kill me some jews.”
No.1 No. I said,” Go get me some Lox.”
“Deal with it. You’re not arguing in front of morons here, no matter how useful that might have been for you.”
bh,
Maybe he is accustomed to dealing with folks that can’t reach the PW pedals ;^)
Some people earn that sort of treatment. BECAUSE OF THE DEATH THREATS!!!
Or because of the you answer my heads I win tails you lose question first (so I won’t have to answer yours) style of arguing.
See? I thought that’s what this post did.
Is it time we ask Mr Frey and company to present a coherent argument about how language works, and how convention holds as the locus of meaning?
Because aside from being dishonest about my not answering his questions — I’ve addressed each and every unrealistic hypothetical and explained how intentionalism is at work in each — Frey has not explained how language functions under his textualist pose. And by “pose,” I don’t mean to sound derogatory: it’s just that people who insist that they are not intentionalists or that intent doesn’t matter are nevertheless intentionalists — albeit those who deny that intent plays any role in what they are doing.
Just look at the law, silly. And ANSWER THE QUESTION!!!
Seriously, do you hold out any hope for reason or for anything resembling good faith here?
Seriously, do you hold out any hope for reason or for anything resembling good faith here?
I’m preaching to the remnant.
I thought that’s what this post did.
It does. Sorry for restating the obvious. (Well, obvious to anybody who isn’t invested in disproving their own inadequacy, intellectual or otherwise.)
I’m preaching to the remnant.
That does seem to be the case, doesn’t it? Some people seem to think that post-modernism is only a little bit contagious. Those same people also think that it’s possible to be just a little bit pregnant.
The remnant is all we can talk to. When I speak out when I hear a liberal talking point that is, again, wrong, I’m not trying to convert the people who are saying stuff, I’m trying to make the listeners think a little bit.
[…] and many of his commenters claim to be textualists. Frey has argued (or at least, implied) that textualism, as an interpretive methodology is if […]
From daleyrocks, over at Frey’s: “Patterico – I think you are right that going down this path may lead to answers they may not like, hence the
PATTERICO, GET OFF MY LAWN!!!!! responses.”
–Yes. My reluctance to respond to the same objections yet again — and explain how language functions yet again — is a product of my fear of Patterico’s position, now that he has managed to show that sometimes we intend to ignore what we know people mean and then justify it to ourselves in some way (for the greater good, for convenience, it’s only fair, etc).
Because prior to his pointing this out to me, I never would have imagined people were capable of such a thing! — that they could know what you mean and decide nevertheless to ignore it in favor of saying that “your words mean something different to us, and we have decided, en masse, to privilege us.”
After all, intentionalism DEMANDS THAT THEY NOT DO THAT! Therefore, it is impossible that it be done. Q.E.D.!
“Is it time we ask Mr Frey and company to present a coherent argument about how language works, and how convention holds as the locus of meaning?”
Jeff,
I’d have to agree with Pablo, I’d humbly suggest you are peeing uphill against the wind.
You gave an honest effort amigo, let it ride 8^)
Deconstruct this.
http://www.youtube.com/watch?v=1K0JTb5or6c&NR=1
And if you do, I hope their ghosts haunt you to your end.
Because that is just the way I roll – as a very bad uncle during Elmo’s Christmas Special when I started ‘singing’* that tune.
*sing and me – umm – I couldn’t carry a tune if it had handles.
“*sing and me – umm – I couldn’t carry a tune if it had handles.”
Heh and hmmmm Mikey, that makes me suspect that you may not be a Welshman then.
America’s Augustian Age is upon us. For a brief period, the forms will exist, but the meaning will be gone. Viva NAU!
[…] arguing — and, in fact, it has been my entire basis for explaining intentionalism — it matters how you get […]
[…] Still, how you get there matters: And a textualist is nothing but an intentionalist who has chosen to privilege his intent over the intent of the agency responsible for producing the speech act. […]