That idea that judges should interpret the Constitution by discovering the original intent or meaning of the text ignores the history of this country’s founding.
So argues Saul Cornell, Fordham History chair and a Senior Research Scholar in Residence at Yale Law School, in a predictable piece that turns on the postmodernist’s favorite trope, unknowability, followed by their favorite erroneous conclusion, that metaphysical uncertainty for deciding which interpretation is the best decoding of original intent means that all plausible interpretations — and methods — are therefore linguistically equal. Which is, of course, utter nonsense. Writes Cornell:
in order to determine original constitutional meaning, some new originalists have turned to philosophy. Lawrence Solum, a law professor and popular law blogger, argues that modern ordinary language philosophy provides a means of discerning the objective meaning of the Constitution’s text. Reading Solum’s originalist theory, one might be tempted to conclude that philosophers of language had reached a clear consensus on issues of meaning, but the reality is that philosophers remain deeply divided over these questions. Even if philosophical consensus existed, one would still need to develop some type of historical methodology to apply one’s philosophical theory to the past. Rather than take the time to do the history right, Solum and other new originalists prefer history-lite, endorsing a method favored by Justice Scalia, who advises that we consult old dictionaries to ascertain the original meaning of the Constitution.
One problem with this approach is that the earliest American dictionaries were written after the Constitution and were not produced according to the rules of modern lexicography. More often than not these texts were prescriptive, not descriptive. They were idiosyncratic products of their authors, who often had ideological, political, and linguistic agendas. Thus it is simply anachronistic to argue that one ought to consult historical dictionaries from the Founding era to elucidate a set of fixed linguistic facts that can be used to unravel the meaning of the text of the Constitution.
Note the dodge here: Cornell will argue that, because originalists haven’t hit upon a perfect methodology for guaranteeing that they’ve struck upon a word’s meaning at the time it was signified into language by the intent first of the authors, then of the ratifiers (whose “public” intent is still nevetheless fixed at what it was — and so is what the text means) — that the legitimacy and indeed the necessity of the approach is somehow problematized. This is nonsensical: all the “methodology” that is required is that one begin by adopting the basic, non-negotiable premise — namely, that the text is indeed a text, that it was indeed intended (and so therefore is made up of signs, that is, it is language, and is not an accidental simulacrum of language, like egret scratchings); from there, the methodology involves doing one’s best to decode what we have agreed is language, using all the hermeneutic tools available to us — context, convention, code, intertextual and intratextual cues, and so on — all of which are marshaled in an effort to best recover what we were intended to understand.
A methodological problem with consulting contemporary dictionaries, as Cornell describes (and he seems to be straining to trouble things on the margins in order to throw the entire enterprise into illegitimacy), doesn’t in any way problematize the necessary premise: namely, that if the project you claim to be engaging in is interpreting a particular historical document, the meaning is indeed frozen “like a fly in amber” — in fact, it has to be, semiotically speaking, or else what you are doing isn’t interpreting a set of signs, but rather giving yourself leave to resignify and create your own text.
Cornell continues:
One wonders if any theory drawn from modern ordinary language philosophy could yield an objective theory of constitutional interpretation given that the Founders were themselves deeply divided over the nature of constitutional interpretation.
Again, note the slipperiness of the argument: what constitutes an “objective theory of constitutional interpretation,” for Cornell? And what difference does it make whether or not the founders were divided over the nature of constitutional interpretation? What matters is, language — and interpretation, for it to count as interpretation — can only work one way. That some people don’t wish to accept that linguistic truism (or, as I’ve noted before with respect to Scalia, fail to properly describe what it is they are doing when they interpret) only means that some people continue to defend erroneous and linguistically incoherent positions. What it doesn’t mean is that, because there continues to be disagreement, all sides are somehow equally correct, and that the methodologies they deploy to interpret are equally valid.
So when Cornell goes on to point out that
[…] one of the most basic divisions within the Founding generation was between those who believed that the Constitution had to be interpreted according to the rules of ordinary language and those who believed that the Constitution ought to be interpreted according to a formal set of rules gleaned from Anglo-American jurists such as Sir William Blackstone
he is merely pointing to an historically-situated disagreement over which of the conventional vernaculars should be deployed when signifying. What he isn’t doing is denying that the text of the Constitution was, in fact, signified at the moments of authorship and ratification — signifiers turned into language by means of intent — and so does, in fact, have an original, intended meaning, made obvious by our decision to appeal to it as a legally binding text in the first place. Therefore, when Cornell argues that
Even if one decided which version of ordinary language philosophy to use, and one perfected a historical method to implement this approach, the result would not be objectivity; what one would have done is simply taken sides in one of the Founding era’s most basic disputes
— all he is in fact telling us is that there is no metaphysical arbiter to determine for us which interpretation is “objectively” the right one.
But of course, this is a rather pedestrian truism. And in fact, we’ve seen this move before, typified by those who conflate the fact that, because “truth” is a man-made construct, all asserted truths are relative and contingent. That is, they conflate “truth” as the linguistic process of describing things as they are (which, because it relies on agency and is constructed of rhetorical tropes, always contains some degree of bias) with things as they are in order to assume control over reality. What is dangerous — and it is the leap Cornell wants us to make — is to conclude that, because we have no way of ever “objectively” knowing if we’ve properly matched our decoding to the original encoding, that is, if our interpretation is an exact match to the original intent, we may as well not even try. Because we can never be certain we’ve correctly interpreted, why bother appealing to original intent at all? Why not just allow that the signifiers mean whatever contemporary interpreters can make them mean — plausibly, reasonably — and forget about original intent, which can never be “objectively” proven?
All of which is just an elaborate way to reintroduce the postmodern turn.
The “right’s approach to reading the Constitution” is reading it as if it is an actual document, created by intentional agency, ratified by same, and imbued with the meaning such intent and ratification provide it — included in which are the means by which to change the document itself should what it means and prescribes not match that which you, as a non “right-winger” (read: believer in the fact of the document, and its existence as an actual thing), wish it to mean.
The obvious question is, if the document doesn’t mean what it means, but only means what we wish to say it does at any given time and in any given context, why keep up the charade of appealing to it at all? Two reasons: first, because that’s the conventional (and legally prescribed) way to interpret; and second, because to give up the pretense would just highlight the illegitimacy of the practice — no matter how it is described (as “living and growing”, as “evolving,” as “open,” as “textualist”), and no matter the credentials of those doing the describing.
Without an appeal to original intent, you have ceased to appeal to the actual document, and so you have essentially concluded that the Constitution as a thing has no actual ontology as a legally binding, ratified document — that it is merely a set of squiggles that you use as a baseline from which to do as you please, provided you can get the squiggles to suggest what you wish them to suggest, and provided you can appoint a majority of philosopher kings to pretend to agree for the sake of making the changes they wish to see made. Insisting otherwise, therefore — that is, to take a “right wing” approach — comes to count as “destroying this country” by dint of blocking “progressive” attempts to make wholesale changes to founding legal principles without having to go through the messy, arduous process of amending the Constitution.
The attempt to deconstruct bedrock linguistic truisms is but a will to power, a way to murder the Constitution, its authors and its ratifiers, and to install oneself in their place as the author of the social and legal contract that proscribes us as a nation.
Nice work if you can get it.
(h/t bh)
I guess we can consider it refreshing that they are so upfront about their totalitarian impulses these days. They used to do a better job of hiding them.
Zen and the art of constitutional interpretion. Saul Cornell speaks Weasel.
If you want to see some linguistic contortions in real time, meander through this thread about F.I.R.E.s concerns about free speech on campuses and the Feds breathing down the necks of universities that won’t toe-the-line based on the Yale frat debacle.
The scariest part of the circle jerk is the people defending Yale, declaring what the frat pledges did was indeed “sexual harassment” and substantiating that assertion with the “Well, if you tried that at your place of work, they’d fire you!”
Keerist, but the world is up-side-down.
Why do people have such a hard time understanding that socially acceptable speech rarely needs protecting?
The reason BHO studied ‘Constitutional Law’ was to find and exploit it’s weaknesses; Saul Cornell is a ‘useful academic idiot’ helping BHO and all the rest of the leftist elements who would undermine the very fiber of this Republic, so as to find a way to CHANGE it to a modified Socialist Republic. Providing for every Citizen to his needs, taking as needed from the rest, whether they like it or not.
Has there ever been a better example of the perfect being the enemy of the good?
Reminds me of a criticism of Derrida that went along the lines of, people confuse his ability to ask interesting questions with imagining he has any answers.
Wow, think of all the time saved by applying this in other arenas …
Kid at piano “Why should I practice, mom? I’ll never be as good as Mozart. Can I quit now?”
In a nutshell, the history of “Constitutional Law” since FDR.
Allowing the People to have a say is not something they can tolerate. Ever.
Saul Cornell is a slightly more literate Ezra Klein.
Hey! It was written, like, over a hundred years ago and stuff, so it can’t possibly apply to a New Progressive America.
One wonders why he doesn’t understand that the first paragraph if taken as “truth” makes nonsense of the second one as he has ststed that it is impossible to know in any respect what exactly the founders or any one who wrote anything of that era or earlier meant by any word, sentence, paragraph, or complete work.
Indeed all written documents from that era or before are rendered mute as to our ability to glean any thing about the past from them. Toss them all on the fire for all the good they can ever be. All they can do is cause trouble for the scholars of our age when they are attempting to write the present day’s historical view of that and other long ago eras.
This looks especially meaty, but I can’t turn my attention to it until the planting is done.
Sorry. :-(
Where’s all the damned weiner jokes?
There is also this from the chapter by Lawrence Solum which I linked in an earlier thread which goes to the whole Blackstone vs ordinary language.
Precisely why there is no need to worry about the legislature using some sort of sneaky, secret private intention, then springing it on the judge later on, as some have worried. As I noted during my discussion of textualism, the legal conventions that demand of legislators that they try to make their intent as clear as possible — because of the judicial dictate that gives judges leave to assume that the intent of the text was delivered as plainly by the legislative body as they could manage — is why any textualism that purports not to take into consideration the intent of the legislators, but instead purports to rely “on the text itself”, is guilty either of describing its methodology incorrectly, or else of giving themselves license to replace the original intent with their own intent, provided they can resignify such that the signifiers, turned now into their signs, seem to support that judicial creation.
If any yokel from flyover country with grease under his nails and a ratty T-shirt could read the Constitution and understand it, we wouldn’t need a Fordham History chair and Senior Research Scholar in Residence at Yale Law School like the exalted professor Cornell to suss out the emanations of penumbras that constitute the really important, albeit unwritten, bits in the Constitution. To argue that the Constitution was written in plain language and means what it says, no more and no less, calls into question his scholarship and his entire reason for being. And that would be mean.
Thought my web cam was turned off. Sorry.
I don’t have any grease under my nails right now, though I have in the past and likely will in the future.
The t-shirt, on the other hand, while not necessarily “ratty,” may be on its way to that condition.
Funny, the picture I was getting was a guy with greasy hair and gravy on his tie….
Oh wait, that’s Professor Cornell. I must pay more attention to the URLs of those feeds.
And I’ll take a back seat to no one in the ratty T-shirt department. I count no less than four holes in the one I’m wearing at the moment.
(When I’ve got to go somewhere and be someone I rely on my wife to dress me appropriately.)
I count no less than four holes in the one I’m wearing at the moment.
I would count the holes in my t-shirt too.
If I was wearing one.
My parents broke me of that habit by the time I was 2.
“If I was wearing one.”
Sorry,
I’m gonna need to see some documentation on that one ;)
Do holey underwear count (IYKWIMAITYD)?
Stephanie,
Thats what happens when you “LET THOSE 24 INCH PYTHONS RUN WILD ON YOU SISTER!”
Ha! Although I think these guys are a sad homage. Oshkosh must have some looooong winters.
And lawyers wonder how they get such a bad rap.
Or do they wonder?
Maybe we should induce the Holy Writ Constitution to speak to us through chicken entrails or a sheep’s liver or two. Maybe we could commune with It through the ravings of a twelve year old girl stoned out of her mind. Then at least we would be honest with ourselves about what it is we’re being asked to accept from the Cornell’s of the world.
They don’t care, as long as it counts as billable hours.
[…] Why that’s an outright fabrica…oh….right.Jeff Goldstein is never better than when he’s tearing into the meaning of language, especially the ways in which progressives chip away at the very underpinnings of how we converse […]
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Divining the intent of the word “sign” in the constitution. pdf file.
To further amplify geoff’s observation about the self-refuting nature of Cornell’s argument:
Cornell writes:
What, exactly, is this time-consuming “method” necessary to “do[ing] the history right?” In truth, Jacques Barzun argued, “[H]istory has no method or methods.”
What is it then that is needed to “taking the time to do the history right?” so that we can correctly find the meaning in the Constitution. It is nothing more than this: “[R]eading it [the Constitution] as if it is an actual document, created by intentional agency, ratified by same, and imbued with the meaning such intent and ratification provide it[.]”(n.b. In the circles formerly occuppied by professional historians, this is known as “fidelity to the source.”)
We are told, however, that respecting the document as a document is dangerous, and best left to professionals, lest we come up with the wrong answers. That would be, shall we say, unhelpful.
“but instead purports to rely “on the text itself”, is guilty either of describing its methodology incorrectly, or else of giving themselves license to replace the original intent with their own intent, provided they can resignify such that the signifiers, turned now into their signs, seem to support that judicial creation.”
This is a great way to counter the “you’re a fundamentalist! (which is a word that is usually intended by the speaker to mean “troglodyte” or “anti-intellectual freak”) argument.
The Constitution isn’t the word of God. If the intent of the framers resulted in a defect, or some kind of historical injustice to the silver spotted swamp snail, there is a mechanism to change the damn thing. Simply parsing the written words like some kind of progressive Kabbalah is a sure way to unintended (or intended) consequences, (and probably fewer silver spotted swamp snails, but a lot of tax money spent on the silver spotted swamp snail preservation league). Let’s face it, the guys who wrote the Constitution, wrote a lot, their intent shouldn’t be too hard to figure out. I tend to think that if we have to change the meaning of the Constitution to reflect more “modern sensibilities” so that any “reasonable man” would be able to read and agree with everything written in there, then it should be a relatively easy process to change it, without all the obfuscation and reinterpretation of the actual words written down, what, over fifty years ago? I mean shit man, they were able to pass an amendment banning beer for Christ’s sake! Ain’t that hard to do!
I wouldn’t buy a tee shirt that didn’t have four holes in it, how else would you put it on?
It could be a mobius t-shirt.
You pour it on. Squeeze some lemon under your pits and away you go.
I deal with Federal judges all the time. I have never known a federal judge to get hung up over definition for more than about 5 seconds. They expedite the cases, and most of the Federal judges honestly don’t care – they interpret the Constitution within a very narrow band of definitions, then they sign away and have lunch.
The mysteries of the Higher Interpretation are meant for Adepts, not Initiates.
Most lawyers are constitutionally incapable of NOT over-analyzing. Law professors doubly so.
[…] response to my piece this weekend answering the linguistic challenge to originalism laid out by Saul Cornell, a high school friend of […]
In what way is this “history-lite”? Isn’t it looking to contemporary sources to determine the way the words were used at the time of writing? Isn’t that basic scholarship?
Isn’t the assertion that we should ignore the carefully chosen words and substitute either modern meanings or our own, invented meanings the exact opposite of actual scholarship?
It’s like arguing that the ancient Romans had aircraft because Livy mentions a “wing” of the army.
Cornell is making a half-assed straw-man argument that originalists choose to focus on the text (“consult[ing] old dictionaries”) at the expense of the context (e.g. the Federalist and Anti-Federalist papers). Basically it’s the same argument that you occassionally hear about how the Founders were without exception unprepentant and irredeemable racists because blacks were “only 3/5s human.” Only in this case tendentious literalism is a bad thing because it doesn’t support the Progressive position.
Instalanche.
Uh,… um,… professor? Is this going to be on the test?
Just to clarify: Cornell is making a false claim about “originalists” tendentiously literal reading of the Constitution in order to discredit originalist claims. The “blacks were only considered 3/5s human” gambit that crops up from time to time uses a tendentiously literal reading of the text in order to discredit both the founders and the Constitution. In both cases a tendentiously literal “interpretation” (Jeff would probably argue for “textual substitution”) is being made by progressive/leftist critics to further the leftist/progressive critique of the classically liberal/legal-constitutional/conservative tradition.
Well golly Ernst, want to tone that down some? That’s a lot of syllables. Remember, the longest word we know out here is “taxidermy”.
That is actually a complete misrepresentation of the text. It doesn’t count blacks as 3/5s, it counts slaves as 3/5s. No mention of color. Free blacks counted same as free whites.
Insta-Link!
Thanks for pointing that out B. Moe Of course, the kind of guy who’d say, “why should I care about what the founder’s had to say? According to them I’m only 3/5s of a man,” doesn’t really care about geneology.
LMC, I forgot that folks in these here parts don’t take kindly to folks what use polysyllabic words and complex sentence structure! Thanks for the Reminder.
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