steamed dumpling: “In a New York Times op-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: 1, 2, 3; see also Glenn Reynolds, Ann Althouse, and Crispin Sartwell
Mr. G.,
Where do you get your steamed dumplings? No one at home will discuss semiotics with me.
HCT
Wow. You really paid attention in those 400-level lit classes.
i hate to post twice so close together, but when Fish says this…
And that is why the only coherent answer to the question “What does the Constitution mean?” is that the Constitution means what its authors intended it to mean. The alternative answers just don’t work: the Constitution can’t mean what the text alone says because there is no text alone;
…is he really saying, “I can’t believe I’m actually paid to do this”?
I don’t think so. I think it’s actually quite important that we understand how language works; because, as I’ve argued elsewhere, the way we think interpretation works can have a very practical impact on how we understand accountability (which, in turn, shows up in legislation, in the interpretation of legislation, etc.).
It’s just funny to see Fish making intentionalist arguments when he’s known primarily for fashioning reader response theoretics—which at first blush, Scalia appears to be participating in by claiming to remove intention from consideration when he interprets.
You know, I really wouldn’t read to much into all of this.
Well now. Rather than merely making a meal of those well prepared dumplings, perhaps have them delivered to Scalia’s chambers? (Somehow. Beats me.) After all, even the great or nearly great require sustenance. No man is an island and all. And I’m betting Scalia sometimes wants for comradeship. Maybe even sometimes pines for an ally. These particular dumplings—more than just comfort food.
Wow, what did the curry have to say for itself?
Deconstructionistas are boringly incoherent. The text means what it says.
Any other POV is mental masturbation.
Use a kleenex, please. And wash your brain afterwards.
SB: try
Do, or do not. There is no try.
Actually, the text means what it means, and it is the interpreter’s job to get at that meaning.
I bet that dumpling would kick ass in a debate with the burrito.
Should that be:
I don’t know. I don’t want to read too much into the intent of your meaning within the text and I certainly don’t want to add signified to the signifier if it would not in fact refer to Scalia’s method, which in an intentionalist sense appears to be the intent of the text, but which evaluated wholly textually is nil.
For myself, I like your recent unfettered use of plain spokenness.
Made the correction, thanks.
Wouldn’t it make sense to read Scalia–in order to learn what he has to say–rather than reading Fish’s interpretation of Scalia’s thoughts?
Let’s face it, Jeff understands all the mumbo jumbo regarding “intentionalist arguments”, “textual approaches” and “New Critical methods”, while the rest of us rely on clear and concise language.
And then there’s Fish, who’s critiquing Scalia by making an argument about a semiotic game in which very few of us participate, and therefore, overwhelming us with jargon, or more likely, BS–as in Alan Sokal’s infamous 1996 essay in the journal Social Text.
Well, I would argue with you that the language being used isn’t clear and precise—it’s just that it’s specific to the discipline. You wouldn’t say a plumber isn’t using clear and precise language if he begins talking about very specific types of pipe rot and naming specialty tools.
Having said that, it is true that many theorists rely on jargon on order to keep ownership of the conversation and to keep outsiders out. Fish, though, is not one of them. In fact, I think Fish—because he writes so many op-eds and cherishes his role as “public intellectual”—is very careful to explain things in plain language.
Here, he’s making the case that “textualism”—in that it says it wants to look at the text as an object divorced from the intent of its framers—is impossible, from the perspective of how language actually functions.
What he doesn’t tell you, though, is that none of that matters in this case, because the end result is that Scalia is doing precisely what he SHOULD be doing, regardless of how he describes it.
It’s liking pointing out that a bee doesn’t know why it flies in order to suggest that it is flying incorrectly. It’s a non sequitur.
BUZZKILL!
Actually, Scalia knows exactly what he is doing in this regard, and has explained it in a number of his opinions (though using more words with fewer syllables than you). But for him, it is (as you briefly suggest) primarily about the practical implications re accountability and therefore the legitimacy of law-making in a democracy.
He explains it, but I think Fish’s in here is that he explains it in a way that doesn’t jibe with interpretive theory. But if you have a link to one of his opinions where he explains his procedure, I’m happy to look at it and see if it passes the interpretive theory jargon test.
You did not find decent Dim Sum in this town.
Best Dim Sum I’ve had was on a Cathay Airlines flight to Hong Kong in recent years. You simply must confess if such a place does truely exist.
Jeff—You’re right, he doesn’t sling the lingo – “textualism†is a charge leveled against him by others, especially Justice Stevens. See., e.g., Johnson v. United States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000); Deal v. United States, 508 U.S. 129, 113 S.Ct. 1993, 124 L.Ed. 44 (1993). Scalia’s dissent in Johnson will give you some idea, though.
I scrutinized the text of Stanley Fish’s NYT OpEd in order to decode its meaning. Applying a formal Semiotics structural analysis, I have discerned that he intended to convey the message: “sweet holy fuck, I can’t believe colleges and newspapers pay me good money for this bullshit.”
Only Semiotics? no Fullotics?
I think i’m getting this now. In statutory construction you look for the plain meaning of the words of a law, looking then to the legislative intent when the meaning is not clear or is confusing. Scalia says, “look to what the people ratifying it think it means” and Fish says it “doesn’t mean anything other than what the writers intended it to mean.”
Am I close? Do i earn a Fudgicle?
Ah may nawt be a smawrt man, but I know what is is.
You should hear what my burrito was saying to me last night…
Let me guess–Fish and those who reason like he does thinks that it’s just swell for eminent domain to be infinitely expanded, as the SCOTUS just did. There’s some kind of connection…
That was a smart li’l dumpling. *burrp* Needed more soy sauce, though…
I’m sure it had some pungent commentary…
Jeff: Thanks for your response above. Seeing as this topic is a specialty of yours, I will admit attempting to draw out additional thoughts of yours’–and you obliged. Thanks.
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