I’ve written on this before (in a series of posts about egrets and etc.), but in the NYT today, no less an anti-foundationalist icon than Stanley Fish uses an intentionalist argument to correct the faulty hermeneutical assumptions of texualism — the mode of interpretation pressed by Scalia and Garner’s Reading the Law: The Interpretation of Legal Texts.
One may speculate on Fish’s motives — he perhaps wishes to problematize the animating interpretative theory associated with Scalia, himself most closely identified with “conservative” jurisprudence, in order to create a connection between faulty interpretative practice and judicial conservatism — but that is more a political question than not, and as a matter of analysis, Fish is, as he always is when critiquing Scalia’s thinking, both correct and (my guess is cagily and intentionally so) incorrect.
That is, he is correct in his breakdown of textualism, the faulty linguistic assumptions of which are derived from New Criticism and other populist approaches to interpretation that claim to bracket authorial intent as somehow secondary to the text itself (conceived of as an ontologically separate entity from the agency that produced it); but he is crafty in his dismissal of the conclusions often reached by those who would call themselves textualists.
And the reason we needn’t necessarily dismiss the product of textualist interpretation out of hand is that so-called textualists are, like all of us, actually intentionalists — though intentionalists who conceive of what it is they are doing when they are interpreting in a way that is simply not so. In fact, it’s fair to say that part of Scalia and Garner’s intent is a willful, theoretical attempt to keep originary intent bracketed from interpretative consideration in deference to the more plain meaning of the text that most reasonable people would derive from reading it. None of which necessarily prevents them from achieving a proper interpretation — it’s just that how you get there matters, that is, what it is you think you’re doing when you interpret will possible affect how it is you interpret, often potentially to the detriment of a proper understanding of the text before you.
Writes Fish:
“Textualism,” [Scalia and Garner] tell us, “begins and ends with what the text says and fairly implies.” Textualists proceed “on the basis of how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued.”
Textualism, so defined, rules out and stigmatizes the alternative interpretive strategies espoused by some jurists and legal academics. We are textualists, Scalia and Garner announce, which means that we “ascribe to the text the meaning that it has borne from its inception, and reject speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s consequences.” That is, we reject the identification of meaning with the intention of the author or authors, and we reject too the consequentionalism (deciding on the basis of preferred outcomes) of “Living Constitution” proponents who believe that the Constitution is an “open invitation for each generation to give its capacious terms whatever meaning that generation favors.”
Living Constitutionalism is not much of a target in this book. It is dismissed, as I believe it should be, as a form of political gerrymandering rather than as a form of interpretation; for it regards the text not as an object of explication, but as an object of manipulation. (Let’s see if we can make it mean what we want it to mean.) Intentionalism, on the other hand, is a constant target. Scalia and Garner sometimes call intentionalism “purposivism”: the purposivist in their account is someone who “goes around or behind the words of the controlling text to what he believes to be the provision’s purpose.” That is, the purposivist substitutes for the objective materiality of the text the subjective will-o’-the wisp of purpose or intention, and unconstrained by the text he is free to “‘fill in’ or change the text according to [the purpose] he has chosen.”
But of course, there is no objective materiality of a text outside of the intent it takes to conceive of that text as language — that is, of being intended by someone. Else, why would we conceive of it as language at all?
Fish continues, in a maneuver you’ll recall from my “pass the salt” example:
Scalia and Garner are quick to say that textualists do not ignore purpose. “Of course, words are given meaning by context, and context includes the purpose of the text.” Indeed, purpose “is the context that helps to give words meaning — that might cause draft to mean a bank note rather than a breeze.” But, Scalia and Garner insist, “the purpose must be derived from the text” and not the other way around. In a well-drafted document (a third meaning of “draft”) the text itself will tell you whether the meaning “bank note” or “breeze” is the right one.
No, it won’t. Take the sentence, “Let’s avoid the draft.” It could mean “let’s get out of military service” (a fourth meaning of “draft”), or it could mean “let’s go inside and diminish the risk of catching cold,” or it could mean (as spoken by a general manager of a professional sports team) “let’s bypass the unpredictability of the draft (a fifth meaning of draft) and trust in free agency,” or it could mean “let’s not do a draft of the bylaws (a sixth meaning of “draft”) but get right to the finished product.” The text does, as Scalia and Garner say, take it meaning from its purposive context, but the text won’t tell you what that purposive context is.
But won’t more context tell you, as in, “Let’s avoid the draft and go to Canada”? No, all four of the sentence meanings I have listed could still be maintained; the dream of explicitness, the dream of adding enough words to a text so that its meaning is clear and indisputable cannot be realized. The specification of purpose is what stabilizes a text and a text’s purpose is not self-evident; you can’t simply extract it from the text, and without its having been assumed or presupposed, the text will not settle down. Intention/purpose comes first, texts and meanings follow.
Precisely correct: Textualism, for all its theoretical posturing, is not a rebuke of intentionalism — nor even a critique of it, though Scalia and Garner seem to think so. Instead, it is deference to particular conventions adopted by the legal community (but not peculiar to it: people who write instruction manuals, for instance, most likely hope to be clear and precise and immediately understood). Conventions provide shortcuts to determining intent, and when intent operates within the bounds of a particular set of adopted conventions, discovering that intent is made easier. But convention, as I’ve shown before, is not the anchor for meaning; intent is, because it is intent that creates the language that is then decoded, most of the time, within some conventional framework (but not always or necessarily: recall how I was able to get Thersites, in a hypothetical, to stop playing with his nipples and pass me the salad).
With respect to the law, which has performative weight, the legal community has developed and honed a set of conventions for both writing and reading law — one of which, and perhaps the most important of which — is the idea the plain reading of a text should capture as clearly as is possible the intent of the legislature; this creates clarity and consensus, necessary conditions for a society built on the rule of (supposedly stable) law.
It is this convention that appears like “textualism,” because to the putative textualist the text exists on its own, freed from those who wrote or ratified it and available for a reasonable reading by reasonable people without any necessary recourse to originary intent.
But where Scalia and Garner go wrong in their theorizing is in substituting the ideal for what it is that actually produced it. Legal convention demands a text be written in such a way that the intent is obvious to those charged with interpreting it. Intent is not bracketed in such a formulation, however. In fact, it is foundational. It merely recedes from sight because it is assumed — that is, Scalia believes that what he’s been charged with interpreting is language, and therefore that it was intended.
Scalia and Garner seem to reject intentionalism theoretically while adopting it in practice — if only because legal convention keeps them focused on intent as it is manifest in the signs they are charged with interpreting.
We’ve seen this argument before. In fact, I wrote on it — though back in my more whimsical days, when I thought it useful to teach hermeneutics through dialogues with Asian appetizers. To wit:
steamed dumpling: “In a New York Timesop-ed this morning, Stanley Fish makes the intentionalist argument that the ‘textualist’ approach to interpretation favored by justices like Antonin Scalia is incoherent, noting that ‘textualists insist that what an interpreter seeks to establish is the meaning of the text as it exists apart from anyone’s intention’—that, from Scalia’s perspective, what’s important is ‘what is “said,” not what is “meant,”’—an empty gesture, in that to do so is to reduce language (which becomes language only by way of intent, by adding the signified to the signifier) to a series of empty marks.
me: “Right. What Fish is describing as Scalia’s model is essentially the New Critical method that strives to separate the text from its authorial moorings. Textualism, then, means separating the marks from their authorial intent—a process that results in the need for complete resignification, or, in simpler terms, a complete ‘rewriting’ of the text.
steamed dumpling: “– which would mean that textualists like Scalia are, in the most linguistically important sense, the ultimate judicial activists, right? Because they are taking the signs that make up the Constitution, stripping them of their signifieds, and then, by necessity, re-signifying them with their own signifieds everytime they read it.”
me: “Well, yes and no. Fish is being quite cagey here and relying on Scalia’s own misperceptions about what he’s doing in order to criticize him (along with the textualist method and its supporters—most of whom are comfortably conservative, politically speaking). But remember: what is important here is not whether Scalia understands intentionalism as a prerequisite for interpretation, but rather whether he is actually appealing to original intent when he interprets—regardless of whether or not he understands himself to be doing so. And, in the case of a ratified document like the Constitution, Scalia’s method, though imperfectly articulated (in that it purports to disregard authorial intention) gets us closer to original public intent, in that it eschews the framer’s intent (that is, it disregards whether or not, say, James Madison understood the Second Amendment to mean that the National Guard is sufficient to satisfy the Amendment’s mandate) and appeals instead to the intent of those who ratified the document (would a bunch of farmers ratify a document calling for a surrender of their firearms once a professional militia was established by the goverment? Doubtful), even if it doesn’t understand itself to be doing so in exactly those terms. And the fact remains that from an interpretive standpoint, it is what the ratifiers thought the text to mean when they ratified it that is the operable intent we should appeal to when we wish to interpret the Constitution. Which, this is precisely what textualists are doing when they talk about what a text ‘says’ rather than what it ‘means’—appealing to the publicly understood consensus of what was the ratifier’s original intent. A public document in its most precise form.”
steamed dumpling: “So then textualists need merely change the description of their method. Instead of describing what they’re doing as appealing to what a text ‘says’ rather than what it ‘means,’ they should make it clear that they are appealing to what a text ‘meant to its ratifiers’ rather than what it ‘meant to its original authors.’”
me: “Precisely.”
steamed dumpling: “So then, from a practical standpoint, Scalia intuits more about interpretation than does Fish.”
me: “I wouldn’t say that, no. Because I have no doubt Fish knows all of this.”
steamed dumpling: “Ah. So then, from a practical standpoint, is it fair to say Scalia is more forthcoming than Fish?”
me: “Sure. Depending on what the meaning of ‘is’ is.”
****
previous installments: […] ; see also Glenn Reynolds, Ann Althouse, and Crispin Sartwell
In the intervening years, and save for my belief now that it if you are going to describe what it is you are doing, you do so correctly, nothing much has changed — to the detriment of conservative and classical liberal jurisprudence. Scalia and Garner make the case for “textualism,” which as I’ve explained before is a method for “democratizing” interpretation by taking ownership of the text away from the author and giving it over to an interpretive community (who then often will replace their own intent with the author’s, even as they then attribute that new intent to the author). Even so, while they sing the theoretical praises of textualism, they themselves proceed most often as intentionalists: they know that the text written and passed by the legislature carries with it some intent; they simply demand, as a way to stabilize the reading of law, that such intent as clearly as possible show itself within established legal conventions. That is, they demand effective communication by way of clearly articulated intent.
This isn’t a bracketing of intent; it’s simply an instance of intent not drawing attention to itself as a point of concern, because the text itself is written in such a way that the intent, we are to assume, is clear.
As I keep arguing, it is important that we begin to understand what it is we are doing when we interpret, and then to clearly express that methodology in such a way that doesn’t allow for incoherent hermeneutic practice becoming accepted and institutionalized.
Fish is right that the concept of texualism is linguistically flawed, as any reader of this site will know. But that doesn’t make conservative legal opinion wrong, necessarily: it just once again documents that people like Scalia and Garner aren’t properly describing what it is they are actually doing when they discuss their own intepretative methods.
Intentionalism just is. The sooner we recognize that — and promote the notion — the sooner we’ll escape the linguistic traps laid out by leftist ideology to rob us of individual autonomy. The coopting of our intent to mean by dedicated and often politicized interpretive communities is nothing short of the theft of us. Textualism in the legal field enables that theft by pretending that a text can exist somehow outside of the intent that either animates it (authorial / ratifying intent) or decodes / re-encodes it (those along the communication chain charged with interpreting it).
It can’t.
For signs to be signs — to be language — they must be imbued with intent. Just as an egret’s scratching in sand that looks like language is only language to the extent that you’ve decided it is (that is, that you’ve applied your intent to marks that merely resemble language), a legal text only exists as a text because we’ve understand it to be language — that is, we’ve accepted that it was intended, signified, and so therefore is made up of signs that it is the job of the interpreter to ascertain.
The only question remaining is, whose intent are we going to privilege — that of the author(s)/ratifiers, or that of the receiver. In the field of legal hermeneutics, it is certainly proper for the interpreter to reject claims that they’ve failed to adhere to an intent not made obvious to a standard conventional reading of a text. But that is neither a rejection of intentionalism nor a reification of textualism; it is instead an insistence that those who wish their intent to be activated into law clearly present that intent, making a failure to interpret that intent unlikely.
****
update: Ernst writes:
I’m unclear on what it is you think Fish is trying to do here, Jeff. Is that he’s more or less accusing the textualists of playing “fast and loose” (so speak) with the text like everyone else, whether they’re honest with themselves about doing so or not? Is Fish just trying to deconstruct the privilege textualists have claimed for themselves?
My best guess is that Fish is merely trying to tie conservative jurisprudence going forward to the idea of textualism, then discredit textualism as a mistaken hermeneutic theory in order to discredit the fruits of conservative jurisprudence.
Remember, Fish is an anti-foundationalist and, as he says, “a modern-day sophist.” He’ll argue whatever needs arguing on any given day without fidelity to hoary ideas of intellectual consistency.
Scalia and Garner wrote a book incorrectly describing the way they actually interpret (intentionalist) as “textualism.” By discrediting Scalia’s textualism, Fish has set up the board to discredit conservative opinions reached through intentionalism described and defended in the faulty theoretics of textualism. Eg., the argument going forward could be that if Scalia reaches an opinion, it’s been reached through textualism (he wrote a book telling us so!), and because textualism is discredited (for reasons Fish shows, and I’ve shown repeatedly), the opinion, even if was reached in practice via intentionalism (and it was), is flawed.
Scalia and a number of conservatives and Republicans need to discard the kinds of incoherent linguistic theories they’ve adopted over the years to justify giving fidelity to the easiest reading of a text: they adopt the easiest reading of the text because that’s what legal conventions require — and in fact demand, in a country wishing to build its foundation on stable law.
That is, they adopt the easiest reading because the law needs to be as clear as possible and they expect it to be written that way — and will read it that way. If the legislature doesn’t signal its intent clearly, that’s not the fault of those doing due diligence and trying to interpret the legislative intent from the cues provided in the substance of a text.
They need to stop mistaking the tool for the rule.
I may comment on this when my brain finishes booting, but it’s not looking promising.
Note to Self: Upgrade to a 3.5 MHz processor.
So I haven’t read Scalia and Garner. Therefore, grains of salt in hand, I wonder: is their mistake unintentional, an error of oversight, confusion, some other sort of error of mistaking one thing for another . . . or purposive, knowing, driving at an end they’ve predetermined to reach come hell or high water, despite what their other analyses may show them? Eventually, I suppose, we’ll have to sort this Scalia/Garner phenomenon from the Congress/tax/penalty/Roberts’ phenomenon, and LMC will want to help with that.
I had hoped to make this clear but maybe I haven’t. Their mistake is in confusing what it is they are doing with a theory that they mistakenly believe best describes it. It doesn’t. Textualism needs to kill of intent in order to empower the interpreter to replace his intent with the originary intent — all while claiming the text, conceived of as existing as its own objective materiality, allows them to do so.
Scalia and Garner don’t want this. They simply want a clearly written text such that they don’t have to worry that they are missing the intent behind it. Instead of saying that, they theorize about how to get there — and in so doing, do violence to how language actually functions.
They should stick to interpreting and stop theorizing.
My internal doalog parallels sdferrs. Mine constantly asks about the axis connecting intent and competence, or in the case of today’s example, Bill Bennett tripping all over his AM talk radio show to cast everything even slightly left of Mitt Romney — that construct already failing in that ORomney is rather unvetted vis a vis classical liberalism — as probably more incorrect than outright fraudulent to classical liberalism. Callers confirm that the topic de jour is that the left is misinformed. Ha.
In other words, why they do it, to me, soon falls as an interesting subject when both recent and old history shows that it forever fails.
Error or intent. I have zero doubt that Roberts et al can defend themselves and their slipshod logic as mistaken. Couple that entirely likely reality with the on-the-ground outcomes of this particular lineage of, well, bullshit, and I don’t see how genteel analysis of little under-the-rug errors holds much past the first ten minutes.
That’s the subject I’ve always wanted to see explored. I am one nasty son of a bitch for it, but I suspect there’s never been a tyrant, whether intellectual or physical, who wasn’t orders of magnitude worse.
I think I understand the idea that Scalia and Garner are intent on clarity or permanence. The question arises for me as to why — assuming it’s correct that the textualist argument leads toward nothing of the sort — they’d nevertheless choose to go down that path. So I ask, if confusedly for myself, do they have another object in mind, something they think the textualist business will gain them, over against what they may conceive they’d lose in the brambles of a simpler intentionalist stance? But I confess, this is confusing to me at the moment, no doubt in part for lack of substance, i.e., the material of Scalia and Garner’s book.
How you get there matters.
Especially in a court of
lawpublic opinion.I don’t think so, sdferr. I think like other legal types we’ve encountered, they misapprehend intentionalism and worry that it is, as Scalia seems to think, a way to make the text mean what it doesn’t appear to mean for the purposes of law.
But the thing is, legal convention makes such questions moot: for Scalia, it need not matter that a text might mean something to the legislature other than he interprets it to mean, provided he is indeed interpreting it based on an appeal to original intent (that is, trying to interpret it based on how language actually functions). Because a failure to make your meaning clear under established legal conventions is not a failure to mean. It’s just a failure to communicate clearly what you meant.
Rejecting intentionalism in favor of this idea that a text has material objectivity outside of our intent to see language as language is dangerous. Because it opens the door to the kind of dismissals of original intent that are relied upon by “interpreters” far less committed to the text before them than is Scalia.
It’s creepily soviet, isn’t it Lee? The utter absence of shame on Corey’s part tells the tale. She’ll have her pound of Zimmerman flesh, whatever it takes.
I’m busy so this post is being bookmarked for future, freetime-having bh. Thought this was a nice breakdown of the central issue though.
I entirely agree as to the danger (political danger). In fact, I agree as to the underlying analysis of textualism (I omitted to say, thinking it obvious enough already). But the question of objective materiality (I too landed on precisely those terms ‘objective materiality — taking Fish as an honest arbitrator with regard to them — as the crucial fulcrum of the question) is a very widespread modern difficulty, entering into all sorts of long digressions of study. As an example, just this morning, on this piece, I’ve been caused to mull over the original ‘ideologists’ of Locke and Hume’s time, through those of the intervening ages more familiarly known as psychologists, nowadays neurologists, down to more modern sorts like Quine and Sellars.
We’re still confronted by our ignorance, yet in political affairs bereft of any right to stand apart, so caused to act on oftentimes insufficient information. However, it is always thus in politics. Hence the ease of the ObamaScam.
So, for Scalia and Garner to understand precisely what I mean by this comment — “this comment” referring specifically and solely to the comment which you are now reading, unless you are reading this text excerpted in another comment, in which case my intended meaning is relevant only insofar as the excerpter is using it in order to add to his own intended meaning…
…what was I trying to say…?
It’s almost as if the authorites want Zimmerman to flee the jurisdiction, Lee.
I hope no one underestimates the significance in these interpretive differences. Even though they often reach the same conclusions (as Jeff says, Scalia might be a practical intentionalist), Clarence Thomas and Antonin Scalia have very different approaches to jurisprudence, and Thomas (the intentionalist) is, in my mind, the purer constitutionalist because of it. Thomas is perhaps the only full-blooded intentionalist on the Court – I’d have to read more of Alito, but he might be as well.
Interestingly I mentioned the other day to my wife that the idea of the Freudian slip that so many would-be linguists try to use to trouble intentionalism more than anything relies first on the acceptance of the idea itself.
Once you conceive of a Freudian slip as an accident, or coincidental, the critique to intentionalism goes away. Intentionalism isn’t about psychology, as Fish rightly notes. It’s about signification, meaning, and communication.
Of course, even were you to accept Freud’s analysis, intentionalism isn’t troubled: under Freud’s conditions, a “slip” is still produced by the agency in question and so is signified by that agency. Whether s/he intended to utter it aloud in a specific context doesn’t change it’s intentional quality. To conceive of it as having meaning as language — and so some sort of significance — we must concede that it was signified. And it is the agency itself who signified it — or else it is as meaningless linguistically as are egret scratches. That is, it just resembles language.
I’m unclear on what it is you think Fish is trying to do here, Jeff. Is that he’s more or less accusing the textualists of playing “fast and loose” (so speak) with the text like everyone else, whether they’re honest with themselves about doing so or not? Is Fish just trying to deconstruct the privilege textualists have claimed for themselves?
Perhaps we should ask Ernst: would forthright, thoroughgoing intentionalism work to the favor of the political stance Fish prefers, or to its detriment? And if not in favor, what can he do in support of that political stance, while still maintaining the more stable linguistic theory? Granted, we’d be working backwards from the (politically driven) hypothesis proffered here toward a derived motivation to attribute as an explanation of Fish’s obscurantism on the question what Scalia is actually doing as he rules on questions of law (or how in Fish’s characterization “. . . Scalia the justice rejects the canon Scalia the author defends” without delineating how that interpretation of the ‘canon’ in question is incomplete), or the intentions of lawmakers.
dot, dot, dot, with a lynch mob hot on his heels.
Could it be said to be a tool of intentionalism even, a means of precision?
[…] he sees in the Romney campaign, as opposed to something earnestly and seriously written, such as this heavy swipe at the errors of Scalia’s textualism. Rate this:Share this:TwitterLinkedInFacebookStumbleUponDiggRedditLike this:LikeBe the first to […]
In practice, maybe, but in theory, no. In fact, it’s anathema to intentionalism because it posits that a text can exist on its own without recourse to the intent of its writers / ratifiers. And yet at the same time, Scalia and Garner make it clear that they do indeed take that intent into account.
They behave as intentionalists while suggesting that the legal conventions that they rely on are the rule rather than the tool.
(Ooh. I like that. May be a keeper!)
I think, Ernst, that Fish is merely trying to tie conservative jurisprudence to the idea of textualism, then discredit textualism as a mistaken hermeneutic theory.
Remember, he’s an anti-foundationalist and, as he says, “a modern-day sophist.” He’ll argue whatever needs arguing on any given day without fidelity to hoary ideas of intellectual consistency.
Scalia and Garner wrote a book incorrectly describing the way they actually interpret (intentionalist) as textualism. By discrediting textualism that isn’t truly textualism, Fish has set up the board to discredit conservative opinions reached through intentionalism. Eg., the argument going forward could be that if Scalia reaches an opinion, it’s been reached through textualism (he wrote a book telling us so!), and textualism is discredited (for reasons Fish shows, and I’ve shown repeatedly), therefore the opinion is flawed.
Scalia and a number of conservatives and Republicans need to discard the kinds of incoherent linguistic theories they’ve adopted over the years to justify giving fidelity to the easiest reading of a text: they adopt the easiest reading of the text because that’s what legal conventions require — and in fact demand, in a country wishing to build its foundation on stable law.
That is, they adopt the easiest reading because the law needs to be as clear as possible and they expect it to be written that way — and will read it that way. If the legislature doesn’t signal its intent clearly, that’s not the fault of those doing due diligence and trying to interpret the legislative intend from the cues provided in the substance of a text.
Borrowing from Fish, why does this trendy sophistry always skew left?
Because it’s all they have, JHo.
Because anti-foundationalism deconstructs the very idea of logical consistency, and that opens the ground for power to be the sole controlling force with respect to prevailing epistemology.
After the Roberts ruling I had thought of textualism in this way.
I think of “textualism” is a special limited case which can only apply when all parties agree in advance to its limits. That for the purpose of writing law that this special case is what we use even when we know/suspect that we are being lied to by the members of the political class.
The law has to be seen this way for it to be generally understood by the greater public as having one fixed meaning so we can all agree on when it has been followed or broken for purposes of enforcing the law. The method works within a certain range, a range we mostly also operate in day to day, but one which if far from the whole of reality.
But the example[s] using the word “draft’ in that piece has shown me that I was too generous which is to say wrong. Even as a special case it fails since it can’t account for all intentions as part of the special group agreement made before hand to establish the special language of law.
I need a publicist and PR person. I need to be giving talks at conferences and TEA Party rallies. This needs to be taught. And insisted upon. It helps root out the institutionalized error that takes power from the individual and turns it over to the collective on various foundational levels.
Yet this post won’t be retweeted, the arguments will be ignored, or simplified and dismissed, and we’ll go on to the next outrage, forever upset about where we are and not the least bit interested in truly remedying the broken mechanism that keeps taking us there.
Until the next conservative conferences teaching us all how to set up a blog or use Powerpoint, that is. As if that’s going to fix things.
Well, that’s just stupid. That kinda thinking will have you seeing a tax where none was intended.
geoff —
Scalia is calling “textualism” something that is merely only the conditions agreed upon in certain conventions. That he conceives of the text the way he does and uses that in his defense of textualism is where the problems arise. Scalia is an intentionalist in practice; textualism, looked at from a linguistic standpoint, ultimately argues — in theory — that should lawmakers leaves tracks in the sand that look like language, those tracks constitute a law that Scalia is charged with engaging.
Exactly. Convention is designed to make divining intention more efficient. It provides shortcuts. In the case of law, the convention is to state your intent explicitly. In literary writing, the convention often times is to obscure intent, either to leave a text “open” for readers to play with, or else to avoid coming across as preachy or hamfisted.
Different conventions, both of which don’t trouble the intent to signify that precedes them.
But just because conventions exist doesn’t mean they are always followed. And sometimes a failure to follow convention, particularly in contexts that rely on strict fidelity to a convention, will lead to a misapprehension of intent and meaning.
So I was fooled by the name and the actual “textualism” is not the thing Scalia is describing. Thank you for your clarity.
With respect to the law, which has performative weight,
Too bad we can’t build a LAW machine into which statutes must be coded such that the hard, cold discipline of bits and bytes forces the writers to clearly signal their intent.
That’s the nice thing about computer languages: any ambiguity or other nonsense crashes the program.
Of course, even were you to accept Freud’s analysis, intentionalism isn’t troubled: under Freud’s conditions, a “slip” is still produced by the agency in question and so is signified by that agency.
As opposed to an outburst of Tourette’s Syndrome, wherein words and noises are uttered with no intent behind them at all.
Maybe a new parable: Scalia, Fish, and Goldstein walk into a …
Maybe a new parable: Scalia, Fish, and Goldstein walk into a bar exam …
Charles Austin wins the thread.
And Jeff, I’ll be happy to retweet this post, but I only have 30 followers and getting them to retweet my own tweets is damn near impossible anymore.
I rarely tweet any more. It turned out to be too much of a time suck.
LMC will want to help with that.
Nope, no I don’t.
Dead horse, beaten. Plus, I’m working like a dog and don’t have time to do anything fun. Except lick my balls… and in this heat all that does is gum up the talc.
Charles Austin wins the thread.
I was trying to find a quote about how tough it is out there for a
pimpstraight-man and now I’m getting Google ads for bath houses and Brazilians.Must think you’re a “Gleen-sock”.
Question,
What about a text designed to purposfully obfuscate the meaning? Or, a different.example, double entendra, jargon or gang slang. Looked through a prism of “convention” a reviewer could be misled. If Scalia’s process is what Fish says it is, no matter what he calls it, could Scalia also be misled?
On my phone, but I’ll try and keep up.
LMC, a text which deals with that question at length.
LMC, I think Scalia is assuming that laws are written to be understood. Which, when the Democrats are writing them, is almost certainly a bad assumption.
dicentra, you might want to upgrade to a 3.5 GHz processor. I didn’t know anybody still made 3.5 MHz processors.
Plus, Jeff’s dealt with those kinds of texts before. I remember raising that same question years ago and being chided ever-so-gently for having missed the part of the post that had touched on it.
A text designed to purposely obfuscate meaning is just that, intended to obfuscate meaning, likely through a lack of contextual, conventional or other cues and clues. If it’s meaning is obfuscated to the point where it isn’t likely to be discerned, well, that’s a failure to communicate what it was you intended, and that redounds to you. When dealing with legal interpretation, the convention is that laws are written so as to clearly present the legislative intent. A Justice, therefore, will engage a text with that conventional assumption as his starting point. Roberts decided that he knew what the lawmakers really meant, even though there is really no evidence for such a conclusion retained in the text, where they wrote “penalty” and legislated penalty after having explicitly rejected “tax.” That a penalty can function like a tax doesn’t make a penalty a tax. It makes it a way to perform a tax-like function on someone by way of a penalty.
A double entendre, like irony, when intended, contains two meanings at once, where one knowingly applies to the signifier a pair of signifieds, either of which — and both of which — perform as intended in the context. One can find double entendres that aren’t intended by the author — at which point it is generally the dirty mind of the reader that is doing the work and adding additional signification where it wasn’t intended (and yet might still seem to work). This is much like situational irony — which draws its power oftentimes precisely from the fact that those involved aren’t intending it. The observer / reader provides the secondary meaning at the expense of those involved.
Convention, as I tried to tell Thersites, et al., is merely the accumulated set of rules and usages we build up around successfully completed messages in order to provide people a shortcut for divining our intent. But naturally one can mean outside of convention; if they couldn’t, we’d have never moved past the first set of hermeneutic conventions.
i think a “hermeneutics for dummies” might help
I didn’t know anybody still made 3.5 MHz processors.
My visual cortex runs at 13Hz, but I have no clue at what rate the frontal lobes run.
Confuzzled but fascinated. I’m reading Fish’s piece again; he’s spending much time unloading these judges’ ‘canons’, which he helpfully defines as…
Is Fish telling us that Scalia’s and Garner’s canons are their personal, political perhaps, preconceived prejudices they bring to their work Bench, and slather on the texts they are assigned to interpret? If that’s the case, then their case work will be flavored by their preconceptions, by these ‘canons’ (like dijon mustard?) regardless of what was the original authorial intent they are assigned to properly interpret?
A ‘Get out of troubling but correct interpretations free’ card, these canons.
This is much like situational irony — which draws its power oftentimes precisely from the fact that those involved aren’t intending it. The observer/reader provides the secondary meaning at the expense of those involved.
This is a standard comedic trope, wherein one character thinks the subject of conversation is X and another thinks it is Y, but only the audience knows that the two characters are talking about two different things. Ergo, the audience knows what each character means in contrast with how the other character understands it. Double-entendres and hilarity inevitably ensue.
i think a “hermeneutics for dummies” might help
What do you think this blog is?
*
What do you think this blog is?
alot things but on this topic more of a college/graduate type discussion of this topic.
i mean i’m such an idiot i finally looked up the def of: hermeneutics.
The canons Fish is speaking of are merely part of the aggregate of legal convention — that is, built up assumptions presumably agreed upon that aid in the proper interpretation (or proper aim of interpretation) of legal texts. Such conventions are meant to protect and aid both ends of the communicative chain, those who mean and try to get their meaning across, and those charged with understanding that meaning. Those who engage in textualism, inasmuch as they proclaim that the text must exist separately from original intent, are therefore free to apply, say, the 14th Amendment to things that were never intended to fall under its purview, or the Clean Air Act to CO2, simply because they can make the signifiers of the text appear to apply to these new applications.
Laws are not meant to be like literary texts; they are more meant to be like instruction manuals, and the conventions surrounding them are relied upon with that understanding in mind. In the end, though, intent is what governs what the text actually means, and if those interpreting them don’t appeal to original intent, they are simply replacing that intent with their own and essentially rewriting the text themselves.
I don’t think Fish is headed in quite that direction Serr8d. He says, for instance, that they ‘rehearse’ canon so and so (which is what we do with written pieces of music, say). CJ Roberts refers to the canon in his NFIB opinion. I haven’t studied the stuff, but I take it to be a formal piece of teaching in the law schools: it’s one bit of what the legal conventions are built of, along with other such stuff as rules of evidence and the like.
oof, refresh would be my friend if I uses it.
Law as a corollary to an interpretation of the Bible as a living document, perhaps?
Bill Whittle is counting his rocks for the coming rock fight in November.
http://www.youtube.com/watch?v=NJFgWA8odBM&feature=youtu.be
Such as most great novels must be reread ever decade so you can find new nuance and perspective, as most authors wish, but the worst laws change every decade as outside taste demands.
I agree. I think your problem is the subject matter is purely intellectual, and to discuss it is to use words like hermeneutics and ontologically and resignification. There’s no bones to pat, or test tubes to heat, or mathematical formulas to write out.
To arrive at even a fundamental understanding of what you’re talking about, much less the implications that inspire your warnings, requires concentration, study, and deep thought. In order to get people to invest the time and energy necessary to ‘get it’, you’re gonna need a hook.
I don’t really know what that would be, but pointing to examples of specifics (egret tracks/cloud formations for example) you’ve done, and yet it still seems a very hard concept to get a firm grip on.
You need to come up with a grand example, one that everyone will relate to, of the general concept. One that will answer all, or at least most, of the questions that always come up and you’ve answered a hundred and ten times before.
Or maybe create a video game…
I just saw a mention of THIS on Ace of Spades.
http://www.tabletmag.com/jewish-arts-and-culture/105853/breaking-bad-karma
Just what the fuck is this shit supposed to be? Is this just a dumb ass kid temporarily lost in her own snark bubble or is she an actual sicko who’s a bit too honest ? I just don’t get this self hating Jewry writing essays routine. I see it from time to time, often the context of the New Yorker or Mother Jones but just where does this come from ?
but pointing to examples of specifics
roe v wade and the penumbras. wickard. roberts care.
I’ve always thought it a bit “I’D be a saint,” way of thinking. You’re smart enough to recognize that people aren’t perfect, but not smart enough to realize that applies to you too. Like the liberals that fantasize about big oil destroying the Earth or letting Muslims kill us all just to show how super much we value PC values over common sense.
– If you can’t reinterprete words, things are stuck in a rigid formalism that is immutible with time, and everyone communicates in a commonly accepted code of conventions and signification, never changing, you can’t run a decent revolution.
Thanks, jg, sdferr.
I’m looking askance at the canons, perhaps unjustly so, as devices used to grease incorrect interpretations that annoy one side to appease another. Robert’s decision, perhaps, disregarded one or more judicial canons of interpretation; but gets away with it by clinging to another canon? Troubling things, these canons, really.
I take it, William, you are not the William of yore?
If you can’t reinterprete words, things are stuck in a rigid formalism that is immutible with time, and everyone communicates in a commonly accepted code of conventions and signification, never changing, you can’t run a decent revolution.
Of course it would be much easier to read Beowulf in the original Olde English.
Dr. Sanity has a three week old post that goes well with this one.
Half the fun is in stripping away the calcified encrustations older terms or modes of thought have been encumbered with in our own time, to find once again — or learn for the first time for oneself what those old terms and modes of thought once meant to those who thought them originally. They too lived thinking lives, and even knew things we’ve forgotten. It’s kind of like doing decent detective work in that way.
– The take away from that reduces to another implied step from fuzzy interpetation. It allows the snake oil salesmen to stridefully quetion the voracity of the writers intent, not just their original meaning, but beyond to their right to even cast that meaning in the manner convention suggests.
– Which has to be the real goal of the whole process of skewing meaning and the language in the first place. Makes lying and subtefuge a hell of a lot easier.
Did someone say textualism?
Did someone say textualism?
barackycare has to go roots and all. the nuclear option for the hermeneutic impaired
– I suppose a biblical scholar would say that society, at least in America, is busy erecting the new tower of Babal, which as I recall, didn’t work out to well.
“Yet this post won’t be retweeted,”
In fairness though, it wouldn’t fit in 14o charachters.
Maybe you should create an acronym we military types would easily recall during heated firefights
Hmm? No, Serr. A whole new player.
Think of it as a meta-exercise – clearly express your intent on intentionalism in 140 characters or less. The links are automatically shortened. So:
An intentionalist parable: Scalia, Fish, and Goldstein walk into a bar exam …https://proteinwisdom.com/?p=41986 h/t Charles Austin #IsThatBirdTalkingToMe?
Tells a story, gives the link, credits originator, and a little personality. In exactly 140 characters when auto-shortened.
Yo. @motionview
, at least in America, is busy erecting the new tower of Babal
see: fed gov’t regulations
mv bravo
“Maybe you should create an acronym we military types would easily recall during heated firefights”
How about: “ELYSES” – (Eat Lead You Sand Eating Shitheads)
BBH,
I like it!
It has good lyrics, I can dance to it
And,
It fits with Lee’s video game suggestion;)
– Of course if you’re looking for something more along the lines of Mil-I-Bupers that would reflect this topic then maybe: F A D T I T S
( Focused Application and Deployment of Tactical Intentionalism on Target Sterilization)
Hwaet just a minute!
– Or conversely: DIPSHITS
( Deployment,Interdiction, and Pursuit of Strategic Hermionically Indigenous Target Sterilization)
By the way, it’s only easier to read Beowulf in Anglo-Saxon if you can think in Anglo-Saxon.
BBH has a future as a Strat Division Joint Air Ops Plan Chief.
Naming the Operation is damn near the entire first day’s planning effort;)
I have an extensive Anglo-Saxon vocabulary, consisting entirely of four-letter words that would have made Sister Colette skin me alive.
Shame on Sister Colette for trying to intimidate you into keeping your word-hoard locked away.
Re: Pablo @ 8:13pm
One limitation that the Congress has had it that in order to line up enough votes for the more radical legislative proposals they would have to water them down by including all kinds of provisions in the bill to satisfy individual Congressmen worried about getting re-elected. This would temper the radicalism of the original bill.
Obamacare had many such things which now can be seen as internal contradictions which would in times past perhaps have invalidated the law. Roberts however has shown the way. The court can simply overlook any constitutional problems or internal contradictions by assuming that Congress meant for the law to be Constitutional and free of contradictions and then “reading it so” to paraphrase Jean-Luc Picard.
So now Congress can slap as many stages to their “Rube Goldberg” bills as needed to get the votes to pass the monstrosity knowing the Court will clean up/clean out the mess that needed to be included to pass the crap. Congress’s hands stay clean.
This from Sen. Schumer ties in with the update to the original post above. My bolding.
William @8:27
You probably wondered just what the hell I was talking about.
Thanks Jeff, sdferr, Mcg. I know Jeff and I had this conversation actually around nonsense, years ago. Couldn’t find it, had to re-ask.
She knew more of those words than I ever learned — but she wouldn’t have used them in a 4th-grade classroom either.
Somebody needs to grab Schumer by the greasy plugs and let him know that the government is run with OUR consent, and that WE want transparency from them. Not the other way around.
I’ve never had a conversation with a steamed dumpling, but a bowl of oatmeal once stared me down….