5/10/2010

10 Responses to “This Weekend’s Posts on Intentionalism and Legal Interpretation”

1. Still the judge could interpet the lump of coal was a diamond ring, benefiting neither the intention of the law’s author nor the practical application of the law.

   Your argument for legal interpretation seems to rest on the assumption the judge will show fidelity to the intent of the law. Otherwise we might as well have blank pages in law books and judges could decide as they pleased as each case and time would present a unique practical situation to be solved. The opportuity for mischief is great, and the only check becomes other judges.

   I would argue that intentionalism, not reduced to absurdity, calls for some degree of common sense in its application to real life. Just as legal interpetation can be reduced to absurdity by removing any notion of fidelity to the purpose or intent of the law.

   Interpetation without an underlying framework of known intent becomes whim.

   I believe there is a common conceit to the legal profession that the Law belongs to them and that in its more extreme forms legal interpetation speaks to this conceit. They are not servants to our nation’s law but rather its masters.

   Abad man (626932) — 5/10/2010 @ 1:54 pm

   
   

2. On the other hand Stanley Fish, a linguist of much higher standing that that Goldstein character, pretty much agrees with Jeff.

   http://opinionator.blogs.nytimes.com/2010/05/10/why-bother-with-the-constitution/?hp

   Why is Strauss trying to take the Constitution out of the constitutional interpretation loop? Because he wants to liberate us from it as a constraint. He repeatedly invokes Thomas Jefferson’s remark that “The earth belongs to the living and not the dead” and expands it into a question: “What possible justification can there be for allowing the dead hand of the past . . . to govern us today?”
   That is like asking what justification is there for adhering to the terms of a contract or respecting the wishes of a testator or caring about what Milton meant in “Paradise Lost” or paying serious attention to the items on the grocery list your spouse gave you. In each of these instances keeping faith with the past utterances of an authoritative voice — the voice of the contracts’ makers, the voice of someone’s last will and testament, the voice of the poet-creator, the voice of the person who will make the dinner — is constitutive of the act you are performing. And not keeping faith raises the question of why we should bother with the Constitution or the contract or the will or the poem or the list at all. Why not just cut out the middleman (who is not being honored anyway) and go straight to the meanings you want?Strauss has an answer to that question: “The written Constitution is valuable because it provides a common ground among the American people.” But as it turns out, common ground is provided not by the Constitution itself but by a survey of “widely acceptable” meanings, which are then attributed to the Constitution as if it were their source. The text, Strauss advises, “should be interpreted in the way best calculated to provide a point on which people can agree.” The way to do this, he adds, is to give the words of the Constitution “their ordinary current meaning — even in preference to the meaning the framers understood.” After all, “the original meaning might be obscure and controversial.”This is an amazing statement. The Constitution becomes common ground when it becomes a vessel for meanings it does not contain. It acts as a binding agent as long as you don’t take it seriously but take care to pretend that you do. As long as an interpretation of the Constitution “can plausibly say that it honors the text, the text can continue to serve the common ground function.”What text? Not the text of the Constitution, which has been replaced by a “plausible” facsimile of it. There is a definite strain in Strauss’s argument here as he continues using a vocabulary — text, Constitution, interpretation — that he is at the same time undermining. You don’t interpret a text by looking for meanings people would find agreeable. You interpret a text by determining, or at least trying to determine, what meanings the creator(s) had in mind; and the possibility that the meanings you settle on are not ones most people would want to hear is beside the interpretive point.The incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, “it makes sense,” he says, “to adhere to the text even while disregarding the framers’ intentions.”I am at a loss to know what “adhere” is supposed to mean here. According to the dictionaries, “adhere” means “to stick fast to” or “to be devoted to” or “to follow closely.” But you don’t do any of these things by “disregarding” the intentions that inform and give shape to the text you claim to “honor”; you don’t follow closely what you are in the act of abandoning. Instead, you engage in a fiction of devotion designed to reassure the public that everything is on the (interpretive) up and up: “The Court could take advantage of the fact that everyone thinks the words of the Constitution should count for something.” Here “something” means “anything,” as long as it hooks up with what everyone thinks; and the advantage the Court is counseled to seize is an advantage gained by pandering. If this is what the “living Constitution” is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.

   dicentra (5fbaa0) — 5/10/2010 @ 7:48 pm

   
   

3. “On the other hand Stanley Fish, a linguist of much higher standing that that Goldstein character, pretty much agrees with Jeff.”

   Does he disagree with Patterico?

   daleyrocks (1d0d98) — 5/10/2010 @ 8:29 pm

   
   

4. On the other hand Stanley Fish, a linguist of much higher standing that that Goldstein character, pretty much agrees with Jeff.

   If we’re making the argument from authority, I’ll stack up Scalia’s credentials against anyone’s. He’s a lawyer of much higher standing than that Frey fellow.

   His theory of “original public meaning” (as opposed to original intent) is where the Court is at these days, since Heller (which was, you may recall, Scalia’s opinion).

   Patterico (c218bd) — 5/10/2010 @ 9:32 pm

   
   

5. The way to do this, he adds, is to give the words of the Constitution “their ordinary current meaning — even in preference to the meaning the framers understood.”

   Yes, and I disagree with this.

   The fact that some may choose to frame this as a debate between the rudderless “living Constitution” and original “intent” does not make it so. No judicial conservative believes in the “living Constitution” — but plenty believe in casting off intentionalism in favor of an originalism that analyzes the original UNDERSTANDING as opposed to the original INTENT.

   Including the Heller majority.

   Patterico (c218bd) — 5/10/2010 @ 9:35 pm

   
   

6. plenty believe in casting off intentionalism in favor of an originalism that analyzes the original UNDERSTANDING as opposed to the original INTENT.

   But shouldn’t the original understanding equal the original intent. You are playing word games here. Analyzing the original understanding effectively uncouples your interpetation from the original understanding as it allows you to give all sorts of unspoken and assumed motives or considerations to the decision process. Such as the framers “understood” the world would be a much different place 200 years in the future.

   I am not arguing, I am trying to point out that you are using an extreme form of intentionalism to argue for interpetation, ignoring that the same treatment could be given to your side as well. You do not seem to like it much.

   The difference between the two is a matter of degree. With intentionalism tending to limit the power of the judical branch, while interpetaion tends to grant it more power.

   Casting off is a telling choice of words, and conservatives are no more immune to power grabs than liberals.

   Abad man (626932) — 5/11/2010 @ 6:58 am

   
   

7. But shouldn’t the original understanding equal the original intent. You are playing word games here.

   No. I have been explaining this here for days. Applying “intent” can lead to absurd results such as enforcing contracts consistent with the “intent” of a con artist, or prosecuting people who have not violated the plain language of a statute.

   And the two are not the same. The Heller majority applied what I have advocated (original “understanding” or original “public meaning”) and not original “intent.”

   Patterico (c218bd) — 5/11/2010 @ 7:20 am

   
   

8. No in your example the intent of the law is to prevent fraud, and the intent of the con artist is not relevant. Just like if I get caught speeding my intent may have not been to speed, but that will not get me off. Speeding laws are not enforced consistent with the intent of the speeder, nor is it reasonable to argue intentionalism would lead to contract law being enforced consistent with the intent of a con artist.

   Abad man (626932) — 5/11/2010 @ 8:17 am

   
   

9. Given that sovereignty lies in the People, their will needs to be expressed in a document that is unalterable save in the means described in it, and is considered “law” as its terms were understood at the time of its enactment. AS Madison said:

   “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers.”

   And the storied Michigan Supreme Court of the 1860’s said:

   “That the constitution means nothing now that it did not mean when it was adopted, I regard as true beyond doubt. But it must be regarded as meant to apply to the present state of things as well as to all other past or future circumstances.”

   This used to be orthodoxy. The revolution in thought worked in the colonial period was from an unwritten constitution (British) to the perceived necessity of a written constitution. By 1770 a constitution was said to be a “line which marks out the enclosure”; in 1773 it was the “standing measure of the proceedings of government” of which rulers are “by no means to attempt an alteration. . . without public consent.” In 1775 it was said that the constitution was “certain great first principles” on whose “certainty and permanency the rights of both the ruler and the subjects depend; nor may they be altered or changed by ruler or people, but only by the whole collective body. . . nor may they be touched by the legislator.” One might add today “or by the judiciary.”

   tbaugh (bee8c0) — 5/11/2010 @ 10:05 am

   
   

10. Just like if I get caught speeding my intent may have not been to speed, but that will not get me off. Speeding laws are not enforced consistent with the intent of the speeder, nor is it reasonable to argue intentionalism would lead to contract law being enforced consistent with the intent of a con artist.

    Are we saying something different?

    Patterico (c218bd) — 5/11/2010 @ 11:54 pm