steamed dumpling: “In remarks to the American Enterprise Institute, Justice Scalia, speaking on the topic of imposing foreign law on Americans, said: ‘I expect, and fear, that the Court’s use of foreign law in the interpretation of our Constitution will continue at an accelerÂÂating pace. […] First, because the “living Constitutution paradigm of interpretation prevails on today’s Court, and indeed in our legal community generally. Under this view, it is the task of the Court to make sure that the current Constitution comports with “the evolving standards of decency that mark the progress of a maturing society.” Once you assume the power to revise what the Constitution requires in order to keep it up to date, you are effectively engaged in the process of writing your Constitution anew, and there is no reason whatever not to consult foreign materials in doing it.’”
“But ‘the evolving standards of decency that mark the progress of a maturing society’ seems to me eminently reasonable for keeping fresh and relevant a Constitution written several hundred years before, say, digital file transfers and bio engineering. Where am I going wrong?”
me: “Well, the first place is when you presume the Constitution needs artificial additives and preservatives. I mean, why would you assume it is the function of the judiciary to act like a sulfite, or some cloying MTV fashion guru who is beholden to the latest trend?”
steamed dumpling: ”Why? I dunno. Because there are many legal concerns the Constitution doesn’t address specifically, I guess—and so it seems to me that a paradigm that allows for an updating that holds to the spirit of the original document is not only desireable, but necessary.”
me: “Sure. But right there you’ve argued against your own premise. Because when you say that an interpretation ‘holds to the spirit of the original document,’ you are using ‘spirit’ to suggest one of two things: a) the intent of the author(s)—in which case, all you are really advocating is that ‘the evolving standards of decency that mark the progress of a maturing society’ need to be checked against the presumption of original intent, with original intent being the final arbiter of what kind of ‘evolution’ is legally permissable; or b) the intent of the judicial interpreter divorced from original intent of the document—in which case, all you are doing is justifying a dismissal of the Constitution’s meaning in favor of a personal rewriting of that meaning to suit your own purposes. And you’ve managed this by dressing it up in the garb of feel-good, new-agey pap, asserting, incoherently, that the contingent nature of signification allows you to extend or exceed the intent of the ratifiers without changing that meaning entirely. Which is to say, you’ve used an appeal to what you’ve decided is the ‘spirit’ of their intent—which provides for a new set of interpretive parameters—to justify the elevation of your own meaning above that of the original meaning.”
steamed dumpling: “—Okay, now you’re just making me feel like a bastard –”
me: “– I mean, note that what Scalia is saying here dovetails precisely with the idea of an interpretive paradigm that appeals to the utterer’s / original author’s intent (or, as I argued to you previously, in the specific case of a ratified document, the understanding of intent by those doing the ratifying) that I keep insisting is at the heart of any coherent paradigm for interpretation.
“In fact, we always appeal to intent—unless we believe language to be accidental,1 in which case it is not “language” in the first place, but rather something that resembles language (or, to put it another way, is something we interpret as language, because we as the interpreters believe it to be intended as such).
“And therein lies the problem with the ‘living Constitution’ paradigm Scalia criticizes: by eschewing the original intent of the Constitution’s ratifiers (and because those who ratified it are responsible for animating the Constitution as a binding legal document, we are free to argue that they are it’s final editors / authors—even if some of what they believed a particular mandate to mean may or may not have aligned precisely with what it’s primary author(s) intended), jurists who then ‘re-interpret’ the Constitution without appealing to that intent are engaged in a process of resignification that is in effect, as Scalia puts it, “the process of writing your Constitution anew.” Which is to say, they are engaging in creative writing.
“And once a judicial interpreter begins to assert that his or her own resignification is equal in force to the meaning locked into place at the time of the Constitution’s ratification, then ‘meaning’ has become tied to the intent of the interpreter and not to that of the author(s) (or, in the case of a contractual document, the ‘authorial function’ as expressed in the understanding of original intent by those who agree upon it / ratify it). Which is to say, a ‘living Constitution’ paradigm opens up the Constitution to be re-written at the whim and convenience of a jurist looking to find penumbras and emanations and the like—or looking to find ways to finesse the language to give it the appearance of a ‘maturing meaning.’”
steamed dumpling: “Kind of like Scalia himself did in Raich?”
me:
me: “Touche’, steamed dumpling. Touche’.”
****
1 For an more concrete discussion of accidental language, see footnote 25 here (ppg 26-27); also of interest, footnote 20 (p. 20)
He probably wouldn’t agree: Scalia doesn’t believe that intent is something we can measure. Intent is not ratified—it never received the formal approval of law—and there probably is not a single thing that is the result of the intents. Think of how the constitution was made. Whose intent? The drafters? the signers? the legislators in each state ratifying? The populations in any states that ratified it with a popular vote? Is there really a single intent that all of those groups had?
He believes in original meaning: what did those words mean to the average person at the time of the ratification. Not to any person in the process because of their role in the process, but to the average person. And certainly not any one’s intent.
William Raspberry frequently has in-column discussions with a “cabbie,” I suppose in DC. And now you are having a conversation with a steamed dumpling.
This worries me; at least Mr Raspberry was having these supposed conversations with a purportedly animate being. Unless you have a female dinner guest you have nicknamed “Dumpling,” (and I don’t think most women appreciate being called “Dumpling” these days) who happens to be somewhat angry (“steamed,” so to speak), it would seem that you are engaging in conversation with a cooked mass of leavened dough.
And the cooked mass of leavened dough is answering you back!
I’m certain that you can see how this would worry some of your loyal readers—except actus, of course, for whom conversations with inanimate objects and Patterico commenters are par for the course!
humanist!
Jeff talks to dumpling,
Steam’d dumpling talks back to him;
He should see a shrink.
UNleavened dough are what dumplings are made of plus various and sundry.
Actus gets it right for once!!
Noah:
From the Merriam-Webster Online Dictionary:
I looked it up before I posted my comment.
From the “Culture6” PDF:
This raises a question for me which probably stems from the fact that I’m at best an amateur on this topic, though it very much interests me. Even supposing that one is “committed to the position that truth is independent of our discourse”, as I am, how does one get around the problem that information is imperfect (or “data is dirty”, as my boss says) when stating this case? In other words, inputs may vary sufficiently that the interpreter believes, in good faith, something other than objective truth (something you discuss frequently with regard to the media, for example). Since the interpreter can only act (or interpret) based on his or her understanding of objective truth, many interpreters will act based on incorrect assumptions, which actions will in turn ripple out and effect the actions taken by others.
As I understand it, that’s the basis of the post-modern paradigm, and although I find that particular philosophy to be, for lack of a better term, BS, I don’t know how to articulate exactly why this is the case, because I’m not sure how to resolve the problem I just described. Is what you’re talking about more a question of the “default” assumptions one makes when determining truth rather than a broader statement of what truth is? Does that question even make any sense?
I would appreciate it if you would take the time to expand on this point, or point me to something you’ve already written that does, since I doubt I’ll find any clearer explanation elsewhere.
affect. Dammit!
Searle’s Speech Acts rocks.
Maybe so Dana…but isn’t “leavening” equivalent to “yeast”? Ever seen a dumpling rise (if so that would be one soggy piece of bread!)?
Just an amateur quibble…Ireally don’t know beans about the subject.
Actus —
If you click through the links in the original post, you’ll note that I addressed your concern the last time the dumpling and I spoke (in that case, based on a critique of Scalia by Stanley Fish):
So you are right that Scalia might not agree. But your point is moot, because it is Scalia’s own misperception of what he’s doing interpretively that would lead him to claim a disagreement, even though what he is doing is actually correct, from the perspective of actual methodology.
To much time on their minds. And for a second there I thought Actus had it right because he repeated what Scalia said about what he was doing!
CJ —
Don’t know if you’ve read it before, but this post deals with the linguistic turn and addresses some of the questions you ask.
Jeff, the post you link to presents po-mo as pretty rational and commonsensical…what part do you not agree with?
I sorta like the “words” of the Constitution to talk. I mean, it is not a difficult or convuluted logic – it is a simple read. I guess Thomas is the one who basically follows the “meaning” of the words at the time they were written. It seems to me that adhering to the “written” words would simplify the law. After all, there is a method in place to amend the document.
Not really. You’re still talking about intents. Scalia doesn’t want intent of the drafters, signers or ratifiers. Not even the popular understanding of intent. He wants text.
So you ask:
That’s the wrong focus. Its intetionalist, and has all—if not more—of the problems that scalia has with intent. The first being that its unratified, the second being that its difficult to gauge.
The right focus is more along the lines of “did ‘well-regulated’ as in ‘well regulated milita’ mean, in 1789, one run by the government or one that was drilled and trained?” AndA does it mean this to the average reader in 1789? Not what do farmers with guns intend to do. But what it would mean to someone without an interest group.
At least, this is according to what Scalia preaches. What he practices is a different matter.
And I don’t know what you mean by what he actually does is correct in terms of methodology.
Do we need an amendment to have an air force that is not part of an army or navy?
You’ve been misled. A Chinese steamed dumpling, like jiaozi or guotie, is unleavened. Steamed leavened dough is bao, like cha siu bao.
Luckily, this is settled contemporaneously, as the milita is defined as all able bodied male citizens.
OT but…steamed dumpling-> steamed milk-> cappucino!-> a friend of mine reports one can now purchase a device to make stove top cappucino! Sounds to good to be true…anybody here tried it?
Uh, I mean that what he practices is a different matter than what he preaches. Which is what the post I linked to points out—particularly the hightlighted section I posted in the comments.
Everything is intentionalist, Actus. It’s just the locus of the intent that is at issue.
Seriously? Why must you practice being contrarian here?
Noah —
Postmodernism is descriptive. People who use it to declare that there is no extralinguistic grounds to which we way appeal for a ruling on “truth,” and then take the next step and say all truths are therefore relative, are misunderstanding postmodernism and trivializing truth.
Not according to Scalias jurisprudence. He doesn’t care what the legislature or anyone else intends. He cares about what the words they used meant back then. Not to them. Not to farmers with guns. But to an average reader.
What he’s added to Originalism is to move away from original intent to original meaning. And it makes a lot of sense. If you’re going to be rigid and stick to what was going on in 1789, you might as well stick to what actually happened: this text was ratified. And not any one’s intent was voted on or ratified.
On this? because I think a lot of people misunderstand scalia’s jurisprudence. And we’d be better served by getting it.
But actus, can’t the shared understanding of the meaning of the Constitutional text in 1787-1788 be taken as an indication of the intent of those who did vote to ratify? What other grounds might they have had for making such a decision otherwise?
It could. But for what purpose? The idea is that the law is the meaning of the text that was passed, not what the “intent” is.
Okay, I see what you’re saying – but I still don’t get how that ultimately negates the distinction Jeff was drawing above about what the text “says” versus what it “means.” Which is my failing, I understand, but I just still don’t see it.
I still say it is better to discuss jurisprudence with fresh lamb kabobs than left-over dim sum. But that might just be a personal quirk of mine…
Just that if he wants to quote Scalia’s method, he should get it right, and forget about “intents.”
I do recommend Scalia’s book “A matter of interpretation.” Its quite compelling.
The opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature and executive also, in their spheres, would make the judiciary a despotic branch. -Thomas Jefferson.
Khan —
Don’t listen to actus. The failing is on actus’ part, not yours. The shared understanding of the meaning of the Constitutional text in 1787-1788 IS taken as an indication of the intent of those who voted to ratify it—which is to say, that they are responsible for giving the signifiers their meaning by having added the signified and referent (or else, simply concurring with the signs proferred them by the authors, which are by definition already imbued with meaning. This is what it means to be a sign). Original ratified intent is important precisely because it is there where the meaning is located—not in the “words themselves” (textualism) divorced from intent.
actus —
What’s with this?
Can you really be that fucking dense?
I have noted three times now that Scalia’s own <i>description </i>of his hermeneutics doesn’t matter so much as the fact that it appeals to the intent of those who ratified the document, even if Scalia himself believes he is appealing only to “words themselves.” As I noted—and I even pointed to an relatively extended analogy—language isn’t language unless it is imbued with intent.
Which is to say that though Scalia might not believe he’s appealing to intention (see, for instance, Wimsatt and Beardsley’s “The Intentional Fallacy” and my critique of said fallacy here, p. 10 on), he necessarily is. To whom he mentally ascribes that intent even while he denies its importance is all that should concern us—though if he’d listen, I’d be happy to teach him why what he is doing is intentionalist.
Beyond that, this post is about Scalia’s views on introducing foreign law into US jurisprudence. And in the bit I excerpted from his AEI remarks, what he is saying does in fact support the intentionalist argument, for the reasons that I make perfecty clear to the steamed dumpling.
I should have realized, however, that linking to the initial discussion of Scalia’s hermeneutics—and then excerpting the majority of it for you here—wouldn’t be enough to keep you from raising additional objections meant to be contrarian for the sake of being contrarian. After all, you are not so intellectually curious as my steamed dumpling friend.
So let me rectify that by posting the opening to that earlier post here:
You can read my response to Fish and the dumpling either in the original post or in the comments above.
And now you have everything you need to piece it all together.
Me, I’m gonna watch some baseball and have a pulled pork sandwich.
Its just odd to think of it in terms of intent. Are we really to believe that everyone voted for the thing for the same reason? That there is one intent which a collective as disparate as a polity can have?
And the intent, if that is what you want to call it, that Scalia is looking for is the general intent of what those words mean, rather than the intent of what people are trying to do by ratifying the documents. Do they use the words “well regulated” to mean that a militia is trained, rather than run by the government? That’s the question, rather than “would they intent to have a militia that is run by the government.”
He does not look at what they say about what they’re trying to do. He does not look at evidence of intent. One legislator standing up and saying that it is his wish that farmers keep their guns, and that is why he is voting, is something that Scalia ignores. An article about how “well regulated” the local milita is after it performs well on a drill, on the other hand, is perfect.
As to how his remarks are intentionalist, I do not see it. You talk about spirits of constitutions, but Scalia does not. You talk about intents of drafter and intents of judges, but Scalia does not. At least, he doesn’t do so as something that should happen. There’s no doubt that intentionalism is used in statutory and constitutional interpretation. But there’s also no doubt that Scalia opposes that.
If you show me new things that are wrong don’t be surprised if I tell you new ways in which you are wrong.
– Aside from the fact that all too many people that want to discuss the Constitution and its aspects, meaning, lexicon, have very little education concerning the process it went through in being drafted, modify, and redrafted, and the recorded “intent” of the various groups/individuals that ratified it, its an onteresting form of revisionism that I assume some that are frustrated, because “it” doesn’t seem to support their political views, will always try to find some path of tortured locic, or linguistic acrobatics, to avoid a straightforward read and interpretation.
So be it. But some things are childishly simple and bad arguments. If you want to argue, “lets just fucking interpret it anyway we want to fit the “new” sociatal views”, then at least spend a little time studying the document and the people involved in its framing. To wit. “well regulated” refers to self imposed personal responsibility, but its interesting, and says a lot about your agenda actus that you find the need to “not understand” this basic passage.
– If I were an idiotarian fuckhead trying to change America to a Zombie like Socoalism in the Pattern of France, so I could skate in the work place, and feed off a nannystate government, I’d be very interested in taking guns away from citizens for obvious reasons too.
I firmly believe, and have written extensively to advance the case, that we need retention elections for steamed dumplings.
Actually, the intent of the second ammendment was to keep the government from enslaving the people. It’s because of the well-regulated militia that the right to bear arms shall not be infringed.
Yes, actus, the intent was to respect other peoples beliefs and avoid infringing on them as much as possible. The intent was to embrace the disparity of the polity. What the fuck kind of law school are you going to?
That’s very helpful for interpretation. Very heartwarming.
Our esteemed host wrote:
Please note that the Supreme Court is currently entertaining a Florida case in which execution by lethal injection is claimed to be a violation of the 8th Amendment’s ban on cruel and unusual punishments, because the prospective executee claims such would cause great pain in the course of ending his life.
Of course, there was no such thing as lethal injection when the 8th Amendment was ratified, although one assumes that the learned men who wrote it had read The Apology of Socrates. Nor were the Framers knowledgeable about the gas chamber or electric chair.
They were, however, familiar with the most common method of execution, hanging; clearly they did not feel that hanging constituted a punishment which fell within the restrictions of the 8th Amendment, as they specified that capital punishment was allowable.
We are about to be entertained by a Supreme Court decision in which at least some of the learned Justices will side with the convicted murderer, that a form of execution designed to be less painful than the one with which the Framers were familiar is too painful to be constitutional.
What the fuck kind of law school are you going to?
The intent is to sing kumbaya and everybody agrees. Great. But it doesn’t solve the problem of what “due process of law” means, or “probable cause” or what is an “unreasonable search and seizure.”
Remind me to eat my IL ARDC card later… damned telephone poles. <retires, muttering and looking for the shiraz>
No, dumbass, the intent is to be able to disagree in peace.
And I really don’t care to get into that on a blog, what I was talking about was this post:
Where you seem to be utterly clueless as to the fundamental philosophy of the Constituition, which would go a long way in explaining your difficulty interpreting it.
Read the Federalist Papers, actus. Don’t analyze them looking for loopholes, read them and try to understand what they are saying.
Major, we discuss NOTHING with lamb kabobs! they are devoured before they can get a word in edgewise.
to quote one of my fave rto-isms:
“i don’t know about cruel, but it’s only unusual the first time”
Oh, you’re going to tell me, eh?
You haven’t even been able to grasp that I agree with you that Scalia doesn’t think himself an intentionalist—even though I’ve pointed you to a post in which I say as much, and even though I’ve explained several times now that what he thinks he’s doing and what he is actually doing can differ. Yet you presume to lecture me on hermeneutics?
Please.
Your comments suggest that you are quite unable to tell the difference between my interpretation of Scalia’s remarks—and what they actually suggest with regard to interpretation and meaning —and Scalia’s own professed hermeneutic philosophy, which both I and Stanley Fish have deconstructed.
Keep arguing with yourself, though, if you must.
As to this:
No. We’re to believe that at the moment(s) of ratification, there was presumed to be a consensus of what the thing meant. And it is to that consensus—which represents the ratified intent as it was interpreted by those doing the ratifying—that one is to appeal when one claims to be “interpreting” the document now.
And no intentionalist claims that the author/utterer/ratifier need to have intended a single thing. One can intend, for instance, to be ironic (dual meanings working simultaneously) or vague.
You really don’t have much of an idea about how intentionalism works, frankly. And until you do, you might want to resist lecturing me on these things.
Thanks for the link, Jeff. I think this sentence best highlights the thrust of what I was asking earlier:
So let me re-formulate my question with a relevant real-world scenario: it would seem to me that an Islamist would not accept the statement above. He would argue, perhaps, that language is merely a conduit for expressing the will of Allah – all while preaching to his followers in language carefully crafted to alter their perceptions of reality in self-serving ways. It would seem, therefore, that he himself is operating well within the post-modern linguistic paradigm, while his arguments must necessarily hinge on a belief which falls outside that paradigm: that there is, in fact, something “larger than our own creations to appeal to for validation”. If that axiom is ingrained deeply enough in the belief system of a given individual, then it becomes, in effect, a roadblock to attempts at linguistic refutation of any element of that belief system.
I realize I’m skipping over a lot of the process here, but I only use this example as a way of getting to the point of my question, which is really how, in the face of such obstacles as axiomatic beliefs which are nearly immune to rational argumentation, to determine when truth has been “demonstrated sufficiently”, or even whether it can be. In other words, if we accept the proposition that one or a few essentially binary elements of a personal belief system can radically change an individual’s perceptions of the world, then how do we know – or perhaps more importantly, what mechanisms does language provide for arbitrating – whether our own perceptions are not similarly altered? Or, to more directly relate to the topic of this post, how can intent be satisfactorily determined without perfect knowledge of all of the assumptions that went into formulating the linguistic output of, say, the authors and ratifiers of the constitution?
Again, I don’t mean this as a relativist challenge to your position, and I’m also not advocating any particular school of thought (mostly because that’s not my educational background, so I’m just going with what little I do know). What I’m trying to get to is the linguistic expression of why what the sum of my experiences (or for lack of a better term, my gut) tells me is true:
1) that certain narratives do have more truth-value than others,
2) that language, though it affects perception, does not have any prior causal relationship with objective truth,
3) that, therefore, given a commonly-accepted level of shared linguistic knowledge and basic assumptions, authorial intent can and should be the basis (or “deafult mechanism”) of interpreting any text or other linguistic communication.
My turing word is “student”, by the way. Uncanny…
Hmmmm.
Ok Jeff. Where the HELL do you do your shopping? I got myself a package of shumai last night steamed them and waiting damn near 4 hours for one of those fuckers to start explaining itself.
4 hours dammit!
If it weren’t for the bourbon the whole night would have been a waste.
I have. And I don’t imagine that they’re just one view of the constitution. Just because the federalist papers made good propaganda for selling it doesn’t make it the reason why everybody adopted it.
Just on scalia. For example, you talk about how he’s equivalent to the intent of the ratifiers. But he’s not. He doesn’t limit himself to ratifiers. In searching for the meaning, he doesn’t use the sorts of evidence one would use if one were to be divining the intent of the ratifiers. I’m pointing out where your equivalence breaks down.
In the sense that any piece of text at that time had a meaning to an average reader, sure. But a consensus of intent? Not quite. Different people had different motivations, different reasons, and different policies they were trying to enact. Some will see the intent to make a stronger central government, some the intent to preserve federalism, etc…
Right, but inconsistent things. One might intend that the 14th amendment would desegragate public schools. The other no. People who voted on the 14th amendment had both of those intents in mind. Original Intent doesn’t help us.
I think you’re using it in a sense other than what intentionalism means to statutory interpretation. There, we search for intent and use that interpretation of the ambiguous text which advances the intent. And scalia is against this.
So let me see if I get your point, because statistically it stands to reason one or two of the signers were as devious, dishonest and corrupt as you, this validates your view?
By the way, I think I should clarify the last point from my comment above. From the Wikipedia entry on “Original Intent”:
What I meant to say with my third point above was that one should attempt to appeal to the meaning the author intended to convey with the words used in the text, and not some shared global intent. So would that make me a textualist?
Just that they were compromising and voting for lots of different reasons. Not just the signers, but the ratifiers too. It wouldn’t surprise me if like today, not all had read the damn thing.
You use things beyond text, like intent, and I don’t think you’re a textualist. I’d say most people pushing intentionalist would not give a meaning the text could not support.
”…[Just] because the federalist papers made good propaganda for selling it doesn’t make it the reason why everybody adopted it.”
– So in other words you consider the Constitution a propeganda document ment to stiffle your freedom to be an acthole.
– Well then, if thats the case why didn’t you just say so.
No the federalist papers were propaganda to sell the constitution. As to whether the constitution itself is just propaganda, we have to look at how well it was respected. How much did the Alien and Sedition acts comport with it, for example. How respected was the Marshall court when it was ruling on the constitutionality of things.
Sorry to whoever is still reading this thread, but I don’t have time to watch my kid, blog, AND teach actus how interpretation works—or, more specifically, to counter the roadblocks he keeps throwing up to keep others from understanding it.
I’ll say a few things very quickly: any failure to decode intent perfectly is attributable to the remove of referential communication wherein we don’t have the author him/her/themselves to appeal to for corroboration. This potential for failure (which, as CJ will likely notice, is akin to our inability to appeal to metaphysical certainty when trying to divine truth) is implicit in language; however, concluding from such a truism that it needn’t necessarily be our aim to divine intent if it is indeed our desire to “interpret” is to make the same mistake as those who misuse pomo’s observations about truth to conclude that all truths are relative.
Intent is simply the ground to which meaning is necessarily tethered. We may not always be able to to divine the intent perfectly. But that does not translate coherently into permission to throw up our hands in despair, conclude that the signifier now belongs to us, and that however we can resignify it ourselves (an act of creative writing) will yield us an equally valid interpretation.
To believe this misunderstands interpretation. It likewise elevates the role of the interpreter as primary in determining meaning. Which results, for instance, in being able to say that, even if they didn’t intend to be so, Bill Bennett is racist or the Flight 93 Memorial is an Islamic crescent (to use two recent examples).
Further, noting that there may have been myriad intentions among those who participated in the ratification and approval process of the Constitution is simply to observe that when you are dealing with multiple “authors” (“authorship” here being used to depict the condition of the final document once ratified), you might be grappling with multiple intentions.
Which is hardly surprising or interesting to note really, and doesn’t change the fact that the finished text is still imbued with (all of that) intent. It simply notes that the intent was an aggregate one, and there may have been competing impulses / agendas.
Still, when you “interpret,” you are appealing to what you believe that intent to be—and you do so by using any number of textual, intertextual, intratextual, and metatextual clues (most of us do this unthinkingly). This is often called “context”. The goal, of course, is to get closest to that original intent (whether it was a single intent or an aggregate one).
This is what intentionalism is about: recognizing that for a sign to be a sign, it must necessarily have already been signified. And for it to have already have been signified, it must necessarily have been intended. Otherwise, we are not dealing with language at all, but rather a series of marks that mimic the appearance of language.
Actus continues to suggest that simply because reasonable people will argue different interpretations, this is somehow a problematic. But we have competing interpretations all the time.
From a legal standpoint, however—because the ratified document was to be used to adjudicate issues that were to begin arising immediately—it is likely that the ratifiers were more careful about understanding the intent behind each provision than actus is letting on here. And even if some devious few were not, those people were less likely to be able to convince judges that their sub rosa interpretations were equally valid under the original consensus of intent.
Because in the end, the most compelling justifications for one interpretion over another will carry the most rhetorical weight.
HOWEVER, just as Rorty’s “the world out there” differs, for purposes of speaking of “truths” from our linguistic reconstructions of them, original meaning is no less there, in the signs, than is the world out there actually out there—regardless of our abilities to describe it completely and perfectly, or to agree upon how best to do so.
Which is to say that actus is confusing the difficulty in reconstructing intent in the process of interpretation with a failure of intent to determine meaning.
He is simply wrong.
Oh. That’s the last thing we should do, according to the people who believe in original meaning.
Not really. Original meaning still has problems. But it at least solves a big problem: the text is what we have ratified. If legislator A intends one thing, and Legislator B wants something else, there is nothing that legislator B can do to change legislator’s A intent, or to hold a vote on it. But legislator B can change or have a vote on, the text.
I think this is a dangerous likelihood to assume, specially as it applies to legislation today. I know at least as far back as the 14th amendment people were intending different things for it, and sometimes coyly so in order to get it passed.
That’s why you look for the meaning of those words back then. Not hte intent of the ratifiers. A person should be able to read the document and understand it simply by using their common knowledge of the contemporary language. They should not have to know special information from the point of view of the drafters and ratifiers as to what they were intending to do.
At least that’s what the original meaning crowd is for.
I’m very sure I’m wrong about rorty and hermeneutics and authorship. Its statutory interpretation that I know a bit about.
Sigh.
Nevermind, actus. The problem is you have a fundamental misunderstanding of how signification works. Which allows you to speak of “text” as if it exists in a vaccuum outside of an attached intent.
The intent is either the original ratified intent or the intent of the interpreter himself. But, pace de Man, signifiers cannot exist as language unless and until they are signified—even if the intent is to empty the sign of any signified.
But I digress.
Anyway, because you won’t bother to follow the links, I’ll give you an extended legal example, courtesy of Walter Benn Michaels and me:
I have more of an idea of how the law works, or is supposed to work. Which allows me to speak that what is passed is just text. And that someone that is ruled by that text should be able to refer just to their common knowledge in interpreting it, not to the intent of the authors. In your example, someone reading about vehicles in the park shouldn’t have to look up that legislators were concerned with dangerous vehicles. They should be able to just look at the text.
I think you’re making this more complicated than it needs to be.
– Actually Jeff. I’m pretty sure most functioning adult human being like mammilians have read your erudite words and moved on, with the exception of the dispondent Telephone Poles(tm), who are hanging around the classroom, long after closing hours, with the janitor sweeping around their feet, and looking like someone just told them there is no Easter Bunny.
TW: Problem? No no, actup doesn’t have any problem, unless you think trying to turn everything he reads into a rental car contract is a problem.
Jeff, thanks a lot for taking the time to respond despite actus’ obstinacy. I think I understand much more clearly now:
What I take this to mean is that, although intentionalism acknowledges the imperfect state of information about authorial intent, that determining said intent should be the goal when analyzing for meaning a text whose author is not available to clarify his intent. In other words, at each step in the analysis, the question should be asked whether this particular “textual, intertextual, intratextual, [or] metatextual clue” (or its interaction with other clues in context) provides information about the author’s intent. External factors (e.g. the historical baggage attached to the word “articulate” in the Bennett case), then, can only be introduced if both their relevance to the text and the likelihood of that meaning having been intended by the author in the context of the text can be demonstrated satisfactorily.
Right?
Uh, no. The law is drawn up in language. Your idea of how law works, or is supposed to work, doesn’t allow you to discount how the material used to construct it works, just because you find it inconvenient to your interpretive assumptions.
Which means that you can, if you wish, speak about how “what is passed is just text,” but that would make you wrong. Because there is no such thing as “just text”.
I am describing the processes at work here. You are now arguing that people shouldn’t have to know anything about the processes in order to interpret. Which is both true and irrelevant.
You say, “someone reading about vehicles in the park shouldn’t have to look up that legislators were concerned with dangerous vehicles. They should be able to just look at the text.” Sure. But all this shows is that precision in signaling our intent is oftentimes not as easy as it appears.
You want a linguistic utopia wherein everything is perfectly articulated and meaning is always clear. And who doesn’t? But wanting it doesn’t mean we can have it, and so we need a way a ground upon which to determine meaning.
Which is why when people read about vehicles in the park and are unsure as to what the legislators meant by the “text itself”, they try to divine the legislators’ intent.
Humans do this naturally. Because it is how we interpret. Unless it is our desire to take re-position the locus of meaning—something that certain political ideologies have been at great pains to do for some time.
Success in that regard, however, would mean that meaning truly is relative—which is both untrue and dangerous to assert.
CJ —
You’ve got it.
CJ – Which is why its so very basic to study, learn, and understand as much as possible, about the framers; their lives, loves, hopes, hates, worries, and outright fears, if you’re every going to have a hope in hell of understanding what they were trying to achieve and say.
– Foregoing that little step, which from the nature of some of the words you read in certain commenters posts is self evident, means you might as well be washing your car, or in fact, actually discussing Constitutional interpretation with a dumpling.
Word soup: “All together now….”IT AIN’T FAIR”…
– One interesting dissertation if it hasn’t already been linked.
Its not so irrelevant to the task of what a judge out to do when ruling on a case which depends on the law.
And the retort of some formalists is that this intent did not get, say passed by both congress and the house and get signed by the president.
– So what. It was ratified, and re-ratified, by the assemblage of the government we had at the time, which was even then “Un formulidia”.
– Actus, you have a better chance of getting elected mayor of the moon as you do re-writing the Constitution. It takers an act of G-d just to get an amendment. Activist judges “re-interpretations”, legislating from the bench, is a palor trick that won’t be easily repeated, now that a plurality of people know what you were up too, and what you pulled.
Or killing a bunch of cajuns.
– Lot of anger in that comment. I feel your pain.
[…] of course, they’ve done no such thing. Textualists are intentionalists by the very act of accepting that the text they are interpreting is, in fact, a […]