Patterico's Pontifications

5/17/2010

Scalia: I Don’t Care About Intent; Goldstein: I’ll Be The One to Tell You What You Care About!

Filed under: General — Patterico @ 7:17 pm

Here is Antonin Scalia, a self-declared textualist, on how he feels about legislative intent:

If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

That’s pretty direct, wouldn’t you say? It would take a lot of nerve for someone to read that statement and claim that Scalia cares about legislative intent — don’t you think?

Yet that is precisely what Jeff Goldstein does today, in a remarkable feat of redefining someone’s words to interpret them as meaning the precise opposite of what was intended. Goldstein quotes the above passage and concludes:

What Scalia hasn’t done is dismissed the writers’ intent; he has instead accepted that intent as foundational to his interpretation and then applied the terms of a contract agreed upon by the legislators and the judicial branch, namely, that the legislators will craft their texts in the most conventional way possible; and the judge will interpret that text under the assumption that the legislators have signified conventionally. Without that intent assumed, it makes no sense for Scalia to lay claim to “interpreting” to begin with.

Excuse me. Scalia has indeed dismissed the writers’ intent. How could he possibly have been any more clear? Let’s review again what Scalia said: “If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words.”

What does he have to do . . . shout it from the rooftops? Append a few exclamation points at the end of every sentence? Say: “I really mean what I just said” at the end of every paragraph?

How does Goldstein manage to take Scalia’s stark declaration that he doesn’t care about intent as a declaration that Scalia has “accepted that intent as foundational to his interpretation”? The answer reveals quite a bit about Goldstein’s method of reasoning, which eschews argumentation in favor of aggressive assertions and definitions portrayed as Revealed Truths that need not be justified with argumentation.

This is a blog post, and if you’re not interested in getting down in the weeds, this is a good place to stop. It’s enough for me that you understand that Scalia says he doesn’t care about intent, yet Goldstein casually dismisses Scalia’s crystal clear statement as meaning the precise opposite of what Scalia actually means.

But if you’re interested in how Goldstein reaches such an outlandish conclusion (and it is outlandish), read on — or, if you’re on the main page, click “more” to read further . . .

“Because I Said So” Is Not an Argument

Let’s take Goldstein’s post point by point:

Pay careful attention to the assertions here. If you are a textualist (something I maintain exists only as a second order description of what certain intentionalists give themselves permission to do with signifiers and their own intent), Scalia says, you don’t care about intent, but are instead interested only in what you call “words.” But what comes to make what you’re engaging with “words” in the first place? That is, what is a “word” to a textualist?

To wit: not only is it possible for marks that aren’t words to look just like words (egret scratchings in the sand, the output of millions of monkeys on millions of typewriters producing, by random selection, “pass the salt,” etc.), but in fact it is this very possibility that creates the distinction between what we consider words and what we consider accidental (because unintended) facsimiles of words.

A simple way to illustrate this: Were we to purchase several editions of, say, a Shakespeare play, would we argue that because the play is printed in different typefaces and different sized fonts in the various editions that the meaning of Shakespeare’s text has been altered in each case? Of course not. And that’s because we recognize a cosmetic change to the signifiers — so long as we can still make out the marks clearly — doesn’t fundamentally change the relationship between the signifier and the signified we presume to be operative. Or, put more simply, we believe that the signs are still the same in each edition — that what Shakespeare meant to signify doesn’t change from reproduction to reproduction. And it is signs we care about when engaging a text.

For Scalia, “words” are signs. After all, he wouldn’t argue that the text of a statute printed on a computer screen says something different than the text of a statute that appears on paper merely because the fonts have changed. And so when he maintains that he “doesn’t care” about intent, he is mistaken: he has already assumed intent, because otherwise, he couldn’t see signs as signs, or (to borrow his terminology) words as words. So he is an intentionalist, as are we all. Looked at from the perspective of language, then, Scalia’s argument is essentially this: “I don’t care about words; I care about words.” Which, good for him.

From there, it is simple to track the errors in his description of what he thinks he’s doing as opposed to what he’s actually doing. First, when Scalia says, “I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words,” what he is saying is “I take the intended signs as they were promulgated to the people of the United States, and what is the fairly understood meaning of those intended signs.” Second, what Scalia means by “fairly understood” is that he will assume, as part of legal convention (and so itself a convention of a convention), that the legislators whose job it is to write the laws have written those laws in such a way that their intent will be clear.

This is argument by definition and assertion. It assumes away the very question under debate. Sure, if you define a word as a “sign” having meaning only because its utterer intended it to have a particular meaning — if you define the word’s meaning according to the utterer’s intent — then, sure, anyone who claims to be interpreting “words” must necessarily be tying his interpretation to the speaker’s intent.

But “because I said so” is not an argument — and so the argument fails at its inception, because Scalia obviously does not agree that the meaning of a “word” is fixed by its utterer. In fact, Scalia’s own statements make it quite clear that, for purposes of statutory interpretation, he rejects the very notion that the meaning of a word, statement, or legislative is fixed by the speaker. Instead, he says, the meaning of words is determined according to the fairly understood public meaning of those words — what Goldstein refers to as “convention.”

This is intuitive on several levels. The reason the phrase “words mean things” has gained popular currency is because people understand that the way you choose to express a thought in words necessarily helps shape the correct interpretation of those words’ meaning. Similarly, a dictionary is nothing more than a compilation of the fairly understood public meaning of words.

Now, I think Goldstein makes a persuasive case that, in many contexts, convention alone cannot determine meaning. For example, humans universally understand sarcasm, irony, speaking in code, and a number of other contexts in which the “plain meaning” of a statement does not determine its meaning.

However, just as textualism provides no universal key to unlocking meaning, neither does intentionalism — and the case of legislative interpretation provides one of the clearest and most obvious examples of a setting in which the strong form of intentionalism is a failing strategy for determining meaning. Using intentionalism to interpret statutory text is cramming a square peg into a round hole; elevating intent over the plain meaning of text is very often a sure recipe for disaster when it comes to deciding what a law means.

I think there may be more than one reason for this, but one of the primary reasons is quite simple indeed. Namely: legislation cannot be interpreted according to legislative intent because, even in theory, it is often impossible to ascribe a single intent to a set of words that is the product of numerous different intentions. If 60 people vote for a provision, and 30 intend it to mean one thing, and the other 30 intend for it to mean the precise opposite, there is no coherent way to determine a single “intent” behind the text.

This is a problem that Jeff Goldstein has never confronted head-on in any meaningful way. Simply arguing that “intent is still there even if it is hard to determine” or “the difficulty of determining intent does not mean it does not exist” does not answer the scenario I just posed. Indeed, it is impossible for Goldstein to address this scenario in a way that is consistent with his insistence that intent fixes the meaning of words — and that, I assume, is why he has never bothered to try. Instead, he soldiers on with his arguments and sort of hopes you won’t notice this one, because it is utterly fatal to the notion of applying intentionalism to statutory interpretation.

What’s more, often the “intent” of the legislators is non-existent, as they simply ratify language written by other people without even reading it. In this sense, legislators are much like a child repeating a nasty phrase taught to them by the uncle who is the black sheep of the family; the utterance may have a meaning, but it does not have that meaning when repeated by the last speaker to utter it. If a legislator votes on language that he has no idea exists, because he never read it, in what meaningful sense can the language be said to be the product of his intent? Obviously it can’t — and yet, as we are all painfully aware from the ObamaCare debate, legislators routinely vote on language that they have never read.

The only rational way to address these concerns is to address the question of interpretation as Scalia does: to say “I don’t care what the legislators’ intent was. I just care what the words say.” This is not to say that the statute “wrote itself” or some such nonsense, as I have seen it argued at Goldstein’s site. It is, instead, to argue that words can have a meaning that is defined in some way other than by appealing to the speaker’s intent. Namely, words can, in some contexts, be defined according to the fair meaning that a reasonable listener would give to the words at the time they are uttered.

That is Scalia’s argument, and you can’t simply define it away. If one takes issue with that argument, they must confront it head-on — and address the problems I have discussed above relating to 1) the impossibility of assigning a single intent to a text that was created by people with competing, and sometimes diametrically opposed, intentions — as well as 2) the problems associated with ascribing an intent to a text that was ratified by idiots who didn’t even read it.

Again: these are problems I have described numerous times — and that Goldstein has refused to confront in any meaningful way, no matter how many times I ask him to. Back to his post:

What follows, then, is Scalia interpreting the intended text of the law with the presupposition in mind that the writers were hoping to clearly signal their intent. And so his interpretation factors in that implied promise on the part of the intending legislators as a legal convention.

What Scalia hasn’t done is dismissed the writers’ intent; he has instead accepted that intent as foundational to his interpretation and then applied the terms of a contract agreed upon by the legislators and the judicial branch, namely, that the legislators will craft their texts in the most conventional way possible; and the judge will interpret that text under the assumption that the legislators have signified conventionally. Without that intent assumed, it makes no sense for Scalia to lay claim to “interpreting” to begin with.

Again, this is argument by definition. Goldstein defines “interpreting” as the process of attempting to learn the true intent of the speaker. Obviously, if you define the word in that way, then you can’t lay claim to “interpreting” if you are not appealing to the speaker’s intent. But, again, this is purely tautological; it is refutation by definition.

“Because I said so” is not an argument. In essence, the intentionalist argues: “You cannot claim to interpret by conducting procedure x, because I define ‘interpretation’ as something other than than following procedure x.” That is not a persuasive argument that conducting procedure x is invalid; instead, it is a logically empty argument that if you accept the definition, anything that falls outside the definition cannot be said to be within it.

OK . . . so what?

It is quite clear that, when Scalia speaks of “interpreting” a text, in the context of statutory interpretation, he does not mean “trying to figure out what the legislators meant.” He means “trying to figure out what the words mean.” To Goldstein, this is incoherent because, in his view, words can only mean what the speaker intends them to. Fine: that is his view. Scalia need not accept it because Goldstein says it is so. “Because I said so” is not an argument.

Problems only arise when “textualists” describe what they are doing incorrectly, and then try to turn that erroneous description into an official methodology: Scalia’s assertion that “intent doesn’t matter” is demonstrably false: the fact that he depends upon intent is evident the moment he decides to treat words as words, the moment he treats each reproduction of a statute as the same statute (even if the typeface has changed).

Again: if you accept Goldstein’s definition of what “words” are — signs whose meaning is fixed according to the speaker’s intent — then anyone who seeks to interpret “words” must necessarily appeal to the speaker’s intent. And, again, this is a tautology. It may be that tautologies appear logically sound when the tautology is expressed in long sentences filled with large words that are defined by the speaker, but if you were to apply symbolic logic to the strings of multisyllabic words deriving from the discipline of semiotics, you would quickly see that every assertion boils down to a empty, contentless assertion that the activity does not meet Goldstein’s definition.

Feel free to read the rest of Goldstein’s post that I haven’t quoted here to see if it somehow explains the logical holes I have identified. But I assure you: nothing in his post addresses the problem of how one derives a unified intent as to language whose ratifiers disagree as to its meaning — or never bothered to read it in the first place. These are fundamental problems I see with applying intentionalism to statutory interpretation — and the problems aren’t going to go away, whether Goldstein continues to ignore them or not.

56 Responses to “Scalia: I Don’t Care About Intent; Goldstein: I’ll Be The One to Tell You What You Care About!”

  1. I thought this sentence fragment especially puzzling: …the fact that he depends upon intent is evident the moment he decides to treat words as words, the moment he treats each reproduction of a statute as the same statute (even if the typeface has changed).

    Even if the typeface has changed.

    My head hurts.

    SPQR (26be8b)

  2. Oh — and Goldstein really ought to correct that falsehood he told about Leviticus.

    Patterico (c218bd)

  3. I like Thomas’s “The Constitution should not be read strictly or liberally. It should be read fairly. And every word should be given its fair meaning”. Or something like that.

    nk (db4a41)

  4. And it was Leviticus’s fault for going there in the first place. Jeff and his commenters operate under different rules. You can’t understand it, it’s an intentionalist thing.

    nk (db4a41)

  5. Goldstein, being an intentionalist has deciphered Scalia’s intent. What Scalia meant was that cared about legislative intent, regardless of what he actually wrote.

    Christian (f10530)

  6. Goldstein discerns Scalia’s intent to be the opposite of Scalia’s words, and in doing so accidentally makes the case against intentionalism better than if he’d tried to.

    No means no, Jeff.

    ras (88eebb)

  7. Wow! The desperation oozes from that flawed thinking. It’s dangerous.

    daleyrocks (1d0d98)

  8. Actually, now that I think about it, doesn’t “no means no” kinda sum up the textualist argument in a nutshell, whereas “but I was just, um, discerning her intent, your honor” sum up the intentionalist side? Seriously.

    ras (88eebb)

  9. And he has deleted my trackback.

    Remember all the whining he did about being banned here?

    Seriously: let’s assume Scalia actually meant what he said — how can he say it in a way that would prevent Goldstein from claiming he meant the opposite?

    Patterico (c218bd)

  10. So does $100,000 mean $100,000?

    daleyrocks (1d0d98)

  11. Yeah, but it’ll only buy $50,000 worth after the fed gets thru with it.

    ras (88eebb)

  12. “And he has deleted my trackback.”

    He is not known as a petty and vindictive blogger.

    daleyrocks (1d0d98)

  13. I could “refute” Goldstein in the same way by making an argument like this:

    Goldstein claims he is an intentionalist, but really, he is a textualist.

    Pay careful attention to the assertions here. Goldstein says he is an intentionalist — which really, there is no such thing because we are ALL textualists. (As I say here again and again, textualism just is.) Goldstein says he cares about intent in interpretation, but he gives away the game when he says he is interpreting “words.” But what comes to make what you’re engaging with “words” in the first place? That is, what is a “word” to a intentionalist?

    An intentionalist may claim that the relationship between words and intent is purely arbitrary, but examine Goldstein’s writings closely and you’ll see that he acknowledges that we almost always use convention to communicate. And indeed, his theoretical examples fail to illustrate otherwise if you imagine them actually occurring in real life; as my egret posts indicate, the second you start seeing an egret making intelligible marks in the sand, you will interpret them as words, not as marks as the intentionalist claims. The next time you see a monkey typing up Hamlet, tell me you’ll shrug it off as a coincidence. Bullshit. You’ll go running for your videocamera. That’s because words mean things. We are all textualists; some of us just misdescribe what we are.

    In fact, it is only conventional understandings of words that made communication possible to begin with — thus, it is convention that creates the distinction between what we consider words and what we consider nonsense. When we utter noises with intent, there is no communication until the receiver begins to see the intended meaning as conventional and thus understandable.

    Again, textualism JUST IS — the very definition of interpreting is to appeal to what a reasonable person would understand as the meaning of a word or phrase. Thus, for Goldstein to claim he is interpreting is incoherent unless he is trying to uncover a meaning that can be shared, for that is the defintion of communication.

    A simple way to illustrate this: Were we to purchase several editions of, say, a Shakespeare play, would we argue that because the play is printed in gibberish that it is the same, if somehow it could be argued that the intent behind the words was the same? Would you rather read Hamlet as “accidentally” typed by a monkey, or a book consisting of “words” that read like this:

    sdkl;fhj ldkfj lkfjf dfudfua PEOFUI

    because it could be argued that the intent behind that gibberish was deep and meaningful?

    You would prefer the monkey text, because we recognize that a set of signs that are perfectly intended but “poorly signaled” (to use Goldstein’s usage) is not really just “poorly signaled” but rather gibberish. The block quote above is GIBBERISH. We don’t CARE what the intent is behind it. We are all textualists. Textualism just IS.

    For Goldstein, “words” actually do have conventional meanings. Otherwise he wouldn’t insist so stubbornly that others are misusing terms when their intent is clear, but their usage is inconsistent with the well-known defintions used by semioticians. After all, he wouldn’t argue that a word is really a mere “mark” rather than a “sign” even if he flipped the definitions in his head, because the meaning would be impenetrable to others, despite his alleged commitment to intentionalism.

    And so when he maintains that he “doesn’t care” what the words actually say, he is mistaken: he has already assumed that words matter, because otherwise, he couldn’t see words as communication, or (to borrow his terminology) words as signs. So he is a textualist, as are we all. Looked at from the perspective of language, then, Goldstein’s argument is essentially this: “I don’t care about words per se; I care about words.” Which, good for him.

    Note well: THIS IS NOT ACTUALLY MY ARGUMENT!!! This is just satire; how a super-wordy, self-assured argument-by-assertion in support of textualism might read. In other words, it is a parody of Goldstein — and about as convincing. (Maybe more so!)

    Patterico (c218bd)

  14. Purposeful misunderstanding is the only explanation at this point. Well, there is another, but I’d rather not have my speech stifled, so I’ll let other’s imaginations do my talking.

    John (7517b5)

  15. Strawman set-up of ‘typeface’ changes to be the equal of actual word changes

    Wonder what the ‘intent’ was there :)

    Lord Nazh (0d312a)

  16. He is not known as a petty and vindictive blogger.

    Well. Let’s just say this: he is not known as a blogger who has

    a) recently told the truth about Leviticus, or

    b) EVER addressed the arguments I make here about legislatures with divided and incompatible intentions — or non-existent intentions, because they never read the law.

    The closest he EVER came to addressing b) was essentially to argue that, just because divining intent is hard, doesn’t mean it’s not necessary.

    Which, try substituting “impossible” for “hard” in that last sentence, and see how that reply fares. Because THAT is my fucking argument: that often divining intent is THEORETICALLY IMPOSSIBLE in the legislative interpretation context.

    There is no response to that. None. Except the textualist answer: you ignore intent and go with the text.

    Patterico (c218bd)

  17. Purposeful misunderstanding is the only explanation at this point. Well, there is another, but I’d rather not have my speech stifled, so I’ll let other’s imaginations do my talking.

    Oh, I’m sure there are other possible explanations for why Goldstein’s argument is so unpersuasive. It’s not necessarily the case that he is purposefully misunderstanding me.

    Patterico (c218bd)

  18. I’m with Scalia. You go by what the words say…period.

    The idea that anyone can derive the intent of a legislative GROUP is a bunch of nonsense anyway.

    Dave Surls (d47a90)

  19. Well, actually, I’m not a stupid person, not all that much, anyway, and I have never really understood Jeff’s intentionalism thesis or your response to it. You know I have tried. Can you tell me in words of one syllable what you two are arguing about?

    I say “Honey, I love you”. She says, “You want me to give the baby her bath, don’t you?” Anything like that? And you know it’s going to lead up to a fight.

    nk (db4a41)

  20. “Purposeful misunderstanding is the only explanation at this point. Well, there is another, but I’d rather not have my speech stifled, so I’ll let other’s imaginations do my talking.”

    He could have quit while he was behind.

    daleyrocks (1d0d98)

  21. Can you tell me in words of one syllable what you two are arguing about?

    Jeff: When folks talk they mean what they mean. So the law means what folks who passed it think it means.

    Me: No. These are laws, and laws are passed by lots of folks. So laws mean what they mean, not what dopes who pass them THINK they mean. Folks vote for a law, and this guy thinks the law means x, and that guy thinks the law means “not x” — and the law can’t mean both things. So what do we do? We say the law means what the text SAYS it means.

    Patterico (c218bd)

  22. Sorry, at least with the quoted passages I think you’ve left the reservation. Mostly based on differing meanings of “intent” that can most fairly be ascribed to the two statements.

    While there can be communication without an intent to do so that is not the situation with statutory law. There is an intent to communicate *something*.

    Where Scalia and TG part ways is in what materials are to be looked at as guidance and under what circumstances.

    This is a case where I wish I could do a decent database search, I would be shocked, for instance, if Scalia were not willing to cite the Federalist Papers or Blackstone. The first of those is certainly an extra-constitutional source about the document no matter how credible.(I am all but certain he quoted the Madison language about how many militia members could be raised as compared to a standing army in Heller, as an example.

    What can most fairly be said, IMO, about the Scalia passage is that he credits statutory communication as being _complete_, rather than without intent. Only where statutes are incomplete (either for vagueness, ambiguity or otherwise) does he believe there is need to look beyond the statute’s text. That, however, is a matter of incomplete communication rather than a lack of intent to communicate.

    Soronel Haetir (f21d6f)

  23. I wasn’t talking about Goldstein.

    John (7517b5)

  24. Jeff: When folks talk they mean what they mean. So the law means what folks who passed it think it means.

    Well, that’s nonsense. Laws mean what people understand them to mean. Most people. Certainly people to whom the law was promulgated whether they got it or not. Reasonable people whoever they may be.

    I already knew that. Is there more?

    nk (db4a41)

  25. I wasn’t talking about Goldstein.

    Yes, yes, I know. I could tell by the way your comment lacked any content whatsoever. I was playing with you.

    You are typical of all of Goldstein’s commenters. You make a comment that assumes I am wrong, without making an argument — because you assume the rightness of your side, by definition.

    Where did you learn to make contentless arguments that assume what you are trying to prove? Ah, yes: I believe I addressed that in the post.

    Patterico (c218bd)


  26. Well, that’s nonsense. Laws mean what people understand them to mean. Most people. Certainly people to whom the law was promulgated whether they got it or not. Reasonable people whoever they may be.

    I already knew that. Is there more?

    No, that’s pretty much it. His position is sophistry dressed up in big words. You’re surprised??

    Patterico (c218bd)

  27. It’s more or less a fact that the congenitally deaf are less successfull than the congenitally blind. So I think the ears are important. What you hear. Not the speaker, the speakee. (Hearer, there’s no word “speakee”.)

    nk (db4a41)

  28. “I wasn’t talking about Goldstein.”

    I assumed you were based on the obvious. You need to work on signalling your intent better.

    daleyrocks (1d0d98)

  29. That’s what I argued at his blog – that words are only valuable insofar as they have common meanings.

    Leviticus (30ac20)

  30. “That’s what I argued at his blog – that words are only valuable insofar as they have common meanings.”

    Leviticus – NO. REALLY. He’s shifted positions but is trying to dress it up like he hasn’t.

    SHOCKA!!!!!!

    daleyrocks (1d0d98)

  31. Did the bit about the words becoming a completely different text if you were not appealing to the author’s intent disappear? We don’t need that bit of sophistry anymore since, after all, Scalia is really an intentionalist.

    daleyrocks (1d0d98)


  32. Sorry, at least with the quoted passages I think you’ve left the reservation.

    Not quite sure what you’re talking about with the “reservation,” kemo sabe.

    Patterico (c218bd)

  33. Here’s one of the things I’ve been wondering about: if intentionalism was embraced as a means of preventing Leftists from co-opting the conservative message, why does Goldstein continually couch it as an empirical theory rather than a normative one? Goldstein would presumably say that intentionalism is an empirical theory because it describes the way things are, but if it was embraced in order to prevent certain behavior, then it would seem that it takes a stance on the way the world ought to be (which would make it normative). It doesn’t make sense that anyone would adopt an empirical stance on a normative question – to state that something is when asked how something should be.

    Leviticus (30ac20)

  34. You’re trying to make sense out of bullshit, Leviticus.

    Patterico (c218bd)

  35. Respectfully, I’m not sure that I agree. Isn’t Goldstein’s point that Scalia assumes the legislature intends to mean what it says? The point is always to effectuate the law as revealed through a statute’s plain meaning, is it not?

    Scalia makes this clear himself when he discusses the conceptual basis for Chevron deference:

    In my view, the theoretical justification for Chevron is no different from the theoretical justification for those pre-Chevron cases that sometimes deferred to agency legal determinations. As the D.C. Circuit, quoting the First Circuit, expressed it: “The extent to which courts should defer to agency interpretations of law is ultimately ‘a function of Congress’ intent on the subject as revealed in the particular statutory scheme at issue.”” [footnote] An ambiguity in a statute committed to agency implementation can be attributed to either of two congressional desires: (1) Congress intended a particular result, but was not clear about it; or (2) Congress had no particular intent on the subject, but meant to leave its resolution to the agency. When the former is the case, what we have is genuinely a question of law, properly to be resolved by the courts. When the latter is the case, what we have is the conferral of discretion upon the agency, and the only question of law presented to the courts is whether the agency has acted within the scope of its discretion— i.e., whether its resolution of the ambiguity is reasonable. As I read the history of developments in this field, the pre-Chevron decisions sought to choose between (1) and (2) on a statute-by-statute basis. Hence the relevance of such frequently mentioned factors as the degree of the agency’s expertise, the complexity of the question at issue, and the existence of rulemaking authority within the agency. All these factors make an intent to confer discretion upon the agency more likely. Chevron, however, if it is to be believed, replaced this statute-by-statute evaluation (which was assuredly a font of uncertainty and litigation) with an across-the-board presumption that, in the case of ambiguity, agency discretion is meant.

    Hon. A. Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 516 (1989) (quoting Process Gas Consumers Group v. United States Dep’t of Agric., 694 F.2d 778, 791 (D.C. Cir. 1982) (en banc) (quoting Constance v. Secretary of Health & Human Servs., 672 F.2d 990, 995 (1st Cir. 1982)), cert. denied, 461 U.S. 905 (1983)).

    In this context, ambiguity justifies inquiry into legislative intent, at least to the extent that the Court has to determine whether Congress intended for someone else to make the decision.

    Yet, in other contexts, Scalia takes issue with resort to legislative purpose to make sense of ambiguity. Begay v. United States, 553 U.S. 137, 152 (2008)(Scalia, J., concurring) (“The Court supports its argument with that ever-ready refuge from the hardships of statutory text, the (judicially) perceived statutory purpose.”). Admittedly, Scalia’s latter comment arises in the context of ambiguous criminal statutes, and I fully agree with his position on such legislation. United States v. Santos, 128 S.Ct. 2020, 2025 (2008) (Scalia, J.) (Rule of Lenity “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them”).

    So, on the one hand, it is proper to look to legislative intent when construing administrative law statutes, while on the other hand, it is improper to look to legislative intent when construing criminal statutes. This distinction is based on considerations extrinsic to the text of the statute, and are wholly attributable to Scalia’s interpretive acts.

    Nevertheless, these apparently inconsistent positions support Goldstein’s larger point, which is that when Scalia construes the plain meaning of a statute, he is in fact attempting to make sense of what Congress intended to say.

    Andrew (816244)

  36. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

    I have respect for the words, and I believe in them.

    I have no respect for the intentions of many of the people who voted in favor of that declaration, because, in this case, I know exactly what they intended. They intended to own other human beings, and had no intention to honor what it was they had just signed onto.

    Of course, a lot of people who voted for that, actually meant to honor it.

    So much for intent.

    Dave Surls (1bfb2f)

  37. If we call a tail a leg….

    Alan (07ccb5)

  38. “Nevertheless, these apparently inconsistent positions support Goldstein’s larger point”

    Andrew – Maybe in a limited sense on the sixth Tuesday in February.

    daleyrocks (1d0d98)


  39. Nevertheless, these apparently inconsistent positions support Goldstein’s larger point, which is that when Scalia construes the plain meaning of a statute, he is in fact attempting to make sense of what Congress intended to say.

    Andrew:

    Imagine a scenario where the plain text says one thing, and the intent clearly indicates something else.

    Which would Scalia go with?

    Answer: the text.

    Which would Goldstein go with?

    Answer: the intent.

    His “larger point” is for the birds because he reads Scalia as saying precisely the opposite of what Scalia is actually saying.

    Again: what does Scalia have to say before you’ll believe his plain language? How many exclamation points does he have to use to mean what he says?

    What degree of sophistry does it take for Goldstein to lie about Leviticus the way he did?

    Patterico (c218bd)

  40. Can you tell me in words of one syllable what you two are arguing about?

    Jeff: When folks talk they mean what they mean. So the law means what folks who passed it think it means.

    Me: No. These are laws, and laws are passed by lots of folks. So laws mean what they mean, not what dopes who pass them THINK they mean. Folks vote for a law, and this guy thinks the law means x, and that guy thinks the law means “not x” — and the law can’t mean both things. So what do we do? We say the law means what the text SAYS it means.

    Comment by Patterico

    Wow, he really did use single syllable words.

    Nice.

    I’m glad I stayed out of this discussion because I start at the level of restraint y’all have dwindled down to at this late point. But it was an awesome series of posts that really got through the thick of the intentionalism idea, which is very useful as long as its major real-world limitations are understood. It’s a shame this is something with factions instead of just interested parties.

    I agree with Dave Surls. You can take the most beautiful truths, such as his quote, and poison it with intent. It’s easy to see why we should interpret with intent in mind in many situations, but it’s also easy to see why the speaker should wield his words understanding interpretation is imperfect. Because the dynamic of how much intent matters varies greatly from none, with laws, to supremely, as with art or comedy, means this is a difficult topic to discuss. Any hard rule fails.

    I can imagine a world where text is king with law and judges never attempt to reinterpret or diving true meaning from a bad rule. In such a system, bad laws are fixed and carefully negotiated to where the text works. That’s not our system because we took shortcuts, starting with Marbury. I think Scalia is on my side on this, not that it matters.

    Dustin (b54cdc)

  41. Since Richard Blumenthal has told the NY Times that “my intention has always been to be completely clear and accurate and straighforward” when speaking about his military service in Vietnam, his statements that he served in Vietnam must be interpreted to mean he did not serve in Vietnam, despite the fact that a textualist would say he lied about his service.

    Michael Hertzberg (23ea63)

  42. EVERYONE brings intent. It’s THEIR OWN interpretation of what the words mean.

    Define ‘cruel and unusual punishment.’

    Define ‘due process.’

    So ‘textualism’ is absolute BS.

    JEA (1eb0e1)

  43. EVERYONE brings intent. EVERYONE brings bias. It’s THEIR OWN interpretation of what the words mean.

    Define ‘cruel and unusual punishment.’

    Define ‘due process.’

    So ‘textualism’ is absolute BS.

    JEA (1eb0e1)

  44. Sorry for posting twice

    JEA (1eb0e1)

  45. testing

    Enoch_Root (9548cd)

  46. i think you arguing about nothing.
    there are only two types of justices, living-constitution justices (appointed by democrats) and constitution-in-exile justices (appointed by republicans).
    the framers designed an intersystem tension between extreme radical progress and slow scrupulously analyzed change.
    the system is WAI for SCOTUS appointments at least.

    wheeler's cat (48f3fc)

  47. Well look what the pharmaceutically altered Vogon poetry spouting cat dragged in. Sigh.

    Eric Blair (04ebf2)

  48. This is mondo hilarious though.
    i think patterico wins.
    :)

    wheeler's cat (48f3fc)

  49. Go to YouTube and look for the Pinky the cat video. It explains so much about the previous commenter.

    Eric Blair (ffe6ea)

  50. nah…..im Dr. John Wheelers superpositioned quantum cat on this blog….much luckier than Schroedingers cat.
    you must be thinking of my nishi nic, the evil sociopathic internet DNA virus that hosts in barcoders, preferably joshikousei.

    wheeler's cat (48f3fc)

  51. Actually, you bizarre little poseur, you should burst into flame even speaking the name “John Wheeler,” considering your activities and, um, unusual stylings.

    How can we miss you when you won’t go away? Besides, you just confuse being bizarre with being wise.

    Eric Blair (3b9553)

  52. Goldstein confuses interpretation with intent.

    One may struggle to interpret what a sentence means – a sentence written and adopted by a group of people a long time ago. But that important task must be focused on the promulgated words, not the hidden thoughts of the individuals who wrote them.

    The intent of a legislative majority is impossible to determine. If interpretation is difficult, surely interpreting whatever statements are used to discover legislative intent is impossible, seeing what compromises and deals are necessary to cobble together a majority vote.

    One thing is certain: the writers never intended their actual words to be ignored.

    Amphipolis (b120ce)

  53. Speaking of intent, here is a great video:

    http://www.youtube.com/watch?v=dR_LHlFwlhk

    I think that Patterico could adapt this to his argument. And it explains you know who pretty well, too.

    Eric Blair (3b9553)

  54. Define ‘cruel and unusual punishment.’

    But that is the whole point. Those words are text. We can debate what they mean, if we both hold to the assumption that words and phrases have meaning that can be transferred (the real crux of the confilict).

    What we do not need to debate is what the unwritten assumptions were of those who adopted them, as if the words mean nothing at all.

    Amphipolis (b120ce)

  55. JEA, you call BS but you don’t have a clue what the discussion is about.

    It is not about constitutional law, it is about statutory interpretation. They are two different animals.

    SPQR (26be8b)

  56. Andrew,

    I wrote a second comment days ago addressing your point re Scalia and more fully fleshing out my response. However, that second comment appears to have been eaten by the migration, which is a shame. In the meantime, you and I have had an e-mail exchange (in which you have conceded that you were not banned, contrary to your claim made at Protein Wisdom, where the jackals seized upon your false accusation as PROOF POSITIVE of my perfidy). In that exchange, you were kind enough to send along the full text of Scalia’s article, which confirms my suspicions that the quote you give above does not reflect his true opinion regarding the need to ascertain intent of the legislature.

    You quote this passage as alleged evidence that Scalia supposedly cares deeply about learning the true legislative intent:

    In my view, the theoretical justification for Chevron is no different from the theoretical justification for those pre-Chevron cases that sometimes deferred to agency legal determinations. As the D.C. Circuit, quoting the First Circuit, expressed it: “The extent to which courts should defer to agency interpretations of law is ultimately ‘a function of Congress’ intent on the subject as revealed in the particular statutory scheme at issue.”” [footnote] An ambiguity in a statute committed to agency implementation can be attributed to either of two congressional desires: (1) Congress intended a particular result, but was not clear about it; or (2) Congress had no particular intent on the subject, but meant to leave its resolution to the agency. When the former is the case, what we have is genuinely a question of law, properly to be resolved by the courts. When the latter is the case, what we have is the conferral of discretion upon the agency, and the only question of law presented to the courts is whether the agency has acted within the scope of its discretion— i.e., whether its resolution of the ambiguity is reasonable. As I read the history of developments in this field, the pre-Chevron decisions sought to choose between (1) and (2) on a statute-by-statute basis. Hence the relevance of such frequently mentioned factors as the degree of the agency’s expertise, the complexity of the question at issue, and the existence of rulemaking authority within the agency. All these factors make an intent to confer discretion upon the agency more likely. Chevron, however, if it is to be believed, replaced this statute-by-statute evaluation (which was assuredly a font of uncertainty and litigation) with an across-the-board presumption that, in the case of ambiguity, agency discretion is meant.

    I wish you had gone on to quote the paragraph that immediately followed the one you quoted, which makes it rather clear that the passage you quoted was not Scalia’s own opinion but rather (as I pointed out in the comment of mine that was eaten) his description of the state of precedent as it stands now:

    It is beyond the scope of these remarks to defend that presumption (I was not on the Court, after all, when Chevron was decided). Surely, however, it is a more rational presumption today than it would have been thirty years ago — which explains the change in the law. Broad delegation to the Executive is the hallmark of the modern administrative state; agency rulemaking powers are the rule rather than, as they once were, the exception; and as the sheer number of modern departments and agencies [*517] suggests, we are awash in agency “expertise.” If the Chevron rule is not a 100% accurate estimation of modern congressional intent, the prior case-by-case evaluation was not so either — and was becoming less and less so, as the sheer volume of modern dockets made it less and less possible for the Supreme Court to police diverse application of an ineffable rule. And to tell the truth, the quest for the “genuine” legislative intent is probably a wild-goose chase anyway. In the vast majority of cases I expect that Congress neither (1) intended a single result, nor (2) meant to confer discretion upon the agency, but rather (3) didn’t think about the matter at all. [If this argument sounds familiar, it should — it is explicitly the same one I have made against applying “intentionalism” to statutory interpretation. — P] If I am correct in that, then any rule adopted in this field represents merely a fictional, presumed intent, and operates principally as a background rule of law against which Congress can legislate.

    Patterico (c218bd)


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