Patterico's Pontifications

5/19/2010

Conversation Between a Statute, an Intentionalist, a Rabbi, a Priest, Justice Scalia, a Bookshelf Builder, and a Con Artist

Filed under: General — Patterico @ 11:08 pm

Statute: “Hey, you finally answered the question.”

Intentionalist: “What question?”

Statute: “If one group voted for me intending me to mean one thing, and another voted for me intending me to mean another, which do I mean?”

Intentionalist: “Oh, right. The corporate intent of a multi-authored / ratified document is the collection of all the individual intentions that are used to signify the text as text. And, just as before, those individual intentions that don’t get signaled can be dismissed . . .”

Statute: “Yeah . . . but the part where you say that an interpreter can ‘dismiss’ any ‘individual intentions that don’t get signaled’ — isn’t that just another way of saying that the judge can and should ignore lawmakers’ private intentions in favor of the plain meaning of the text? And isn’t that, well, textualism? And isn’t that what Frey has been advocating all along?”

Intentionalist:

Statute: “How far does this principle you articulate of dismissing unsignaled intentions go? I have some friends who have some questions too.”

Justice Scalia: “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. Sounds like you agree; if the framers had some ‘individual intentions that [didn’t] get signaled’ then those intentions ‘can be dismissed’ — right? Sounds like I knew what I was doing after all!”

Con artist: “Are you saying that if I don’t signal my intentions because I am trying to defraud someone, a judge can ignore (or “dismiss”) my private intentions and rule according to the plain language of the contract — interpreting my words as they would fairly be understood by a reasonable audience? Isn’t that what it means to sanction ‘dismissing’ any ‘individual intentions that [didn’t] get signaled’?”

Bookshelf builder: “So you agree with Frey that I am justified in taking these ironically written instructions, ignoring any ironic intent, and using them as written to build a bookshelf? After all, the instruction writer didn’t signal his intentions. What’s more — even if he did, aren’t I still justified in building the bookshelf, even if that means ignoring the writer’s intent?”

Statute: “I just don’t get it. If you’re all of a sudden arguing that intentions that don’t get signaled can be ‘dismissed,’ then what the hell have you been arguing about all this time?”

Intentionalist:

Statute: “And are you ever going to apologize to Leviticus for lying about him?”

Intentionalist:

Intentionalist:

Intentionalist:

Intentionalist: [Blocks trackback.]

Rabbi: “Oy. I have no idea what the hell this was about, but I am going into a bar.”

Priest “Me too.”

Michelle Obama to Daughter of Illegal: We Gotta Get Your Mom Some Papers!

Filed under: Immigration,Obama — Patterico @ 9:10 pm

Rule of law, baby! Rule. Of. LAW!

First lady Michelle Obama told the child of an apparent illegal immigrant on Wednesday that immigration policy should be “fixed” so her mother could remain in the United States.

During a trip to an elementary school in Silver Spring, Md., with the first lady of Mexico, Margarita Zavala, Obama took questions from one young girl who said that she had heard “that Barack Obama is taking everybody away that doesn’t have papers,” adding later that her mom lacks such paperwork.

“We have to work on that. We have to make sure that people can be here and get the right kind of papers; that’s exactly right,” Obama responded. “We have to work on that. We have to fix that.”

Actually, no. The girl’s mom has to work on getting the right kind of papers.

Not because she needs them, mind you; I’m told being an illegal immigrant is legal everywhere except Arizona. Just, you know, to help bring the family out of the shadows — so that, one day, their daughter might have the courage to address the First Lady of the United Sta —

Ah, hell with it.

Pakistani Court: Facebook Is Blasphemous

Filed under: General — Patterico @ 9:00 pm

Because of the whole Everybody Draw Mohammed thing:

Plans for the “Everybody Draw Mohammed Day” contest drew an angry reaction, provoking street demonstrations in the Muslim majority country.

On Wednesday, Lahore High Court responded to a petition by the Muslim Lawyers Movement, ordering Pakistan’s internet regulator to block the entire site.

Users lost access to Facebook about two hours later.

Which reminds me: here is a link to the Facebook Everybody Draw Mohammed thing.

Oh, and here is a link to A.W.’s Everyone Draw Mohammed blog.

P.S. Rule for this thread: nobody will call anyone a coward. In fact, those who did so in past threads should consider apologizing.

Obama Hosts Second State Dinner

Filed under: Obama,Race — DRJ @ 8:33 pm

[Guest post by DRJ]

President and Mrs. Obama are hosting his second State Dinner tonight in honor of Mexican President Felipe Calderón and wife, Margarita Zavala, but there were no gatecrashers this time:

“Some of them were still clutching their embossed invitations, proof that they belonged. They had already been asked their names once, twice, three times to make sure they were actually on the list.

And as the guests for the second state dinner of Barack Obama’s presidency arrived on Wednesday night, the White House tried to purge the memories of the uninvited guests at the first state dinner. What were their names again? Forgotten, White House officials hoped, in the mists of Washington trivia.

“I’d say things are pretty secure around here,” Transportation Secretary Ray LaHood said.”

How did they manage it? By refusing people who did not have their identification papers:

“Kathryne Mudge, right, and her husband, Arturo A. Valenzuela, assistant secretary of state for Western Hemisphere Affairs, leave a checkpoint after discovering Mudge did not have her identification for the State Dinner at the White House in Washington, Wednesday, May 19, 2010. They returned about an hour later with the ID and were allowed into the affair that President Barack Obama and first lady Michelle Obama held for their Mexican counterparts, Felipe Calderon and his wife, Margarita Zavala.”

Questioning and turning away Mexicans/Americans because they don’t have papers?

Racists.

— DRJ

Jeff Goldstein: Textualist?!

Filed under: General — Patterico @ 6:33 pm

[UPDATE: For more on this fellow, enjoy reading about his penchant for physically threatening people.]

It sure seems that way. (Hey, if he can call Scalia an intentionalist, what’s preventing me from calling Goldstein a textualist?)

Attentive readers will recall that I have repeatedly posed to Goldstein a question that, until today, he had evaded: how does intentionalist divine a single intent from a group of legislators who a) have diametrically opposed intentions as to a particular provision; or b) have no intention at all as to a provision, because they never read the law?

I have hectored Goldstein repeatedly to answer these questions, because I think the questions expose the key flaw in applying intentionalism to the specific field of statutory interpretation. Intentionalism works well as an interpretive theory in many linguistic scenarios, but lawmaking is different from typical everyday speech in many key ways that render intentionalism useless when applied to statutory interpretation. Here are two of the most obvious differences:

  • Unlike most speakers, lawmakers are not single speakers, but rather speak (vote) in groups. As a result, the individuals who ratify a provision may have intended it to mean very different things. When this happens, it is impossible to divine a single intent unless you give primacy to the plain meaning of the text itself.
  • Unlike most speakers, lawmakers are sometimes unaware of what they are “saying” (voting for). Laws are often not written by lawmakers, but rather by staffers and/or lobbyists with no constitutional authority. This means that lawmakers routinely vote on laws without ever reading them. As a result, it is sometimes impossible to divine the lawmakers’ intent as to a particular provision because the lawmaker, not having read the law, indeed has no intent as to that provision.

Until today, Goldstein has refused to confront these questions, saying only (as in the update to this post) that divining one intent from multiple conflicting intentions is difficult but necessary. That doesn’t answer how one is supposed to divine a single intent from conflicting intentions. Or how — without relying on the plain meaning of the text — one is supposed to divine the “intent” of someone who hasn’t even read the language of the law.

Today, for the very first time, Goldstein addresses one of these questions directly. And his answer is a textualist answer:

The corporate intent of a multi-authored / ratified document is the collection of all the individual intentions that are used to signify the text as text. And, just as before, those individual intentions that don’t get signaled can be dismissed, just as if you were dealing with an individual who was signaling his meaning in a way that, without recourse to proximity and some give and take, would not be readily available to a good faith interpretation (that being one that appeals to what it believes are the intentions of the author/utterer).

Well, okay then. Why didn’t you say so in the first place?

When Goldstein says “those individual intentions that don’t get signaled can be dismissed,” I see that as a textualist answer.

Because to say “those individual intentions that don’t get signaled can be dismissed” is to admit that if the text does not signal the intention, the intention can be “dismissed.” In other words, if the text does not plainly say what the legislators intended it to say, the legislators’ intentions can be “dismissed.”

Thus, as I have argued, those doing legal interpretation need not concern themselves with the private intentions of legislators when it comes to determining the correct legal interpretation of the text. Put another way, judges need not worry about the “intentions” of legislators who have their own beliefs about what the language means, if the lawmakers were not able to incorporate those beliefs into the text of the law.

This stance, it seems, also signals agreement with my view of what to do with the “intentions” of idiots who vote on things they didn’t read — namely, those intentions may be “dismissed” as well. Like the lawmakers whose intent is contrary to the text, lawmakers who had no intent with respect to the text to begin with — because they didn’t read it — should have those intentions ignored (or, to use Goldstein’s term, “dismissed”) by judges in favor of the plain meaning of the text, as it would be interpreted by a reasonable audience at the time of its utterance.

What matters is what the text actually says. Lawmakers can have whatever private meanings they like — but if they are not “signaled” in the text, they can be “dismissed.”

I confess I do not understand how that is an “intentionalist” view. But it is certainly the textualist’s view — and in any event, I am far less concerned with labels than I am with the practical realities of how judges handle texts.

Site Issues — Especially Comments

Filed under: General — Patterico @ 5:27 pm

As DRJ mentioned, the site was moved to a new server and things have been a little glitchy. I have received several e-mails from people relating to the site’s mercurial performance, mostly relating to comments. Some people are having trouble posting comments; some are having trouble seeing them; accessing and posting from a Blackberry is problematic; comments apparently cannot be posted at the Jury; and I don’t know if it is even possible to post at the Jury.

We are discussing these issues with the new host, and are working on fixing them. In the meantime, I can offer two suggestions: 1) try clearing your cache, and if that doesn’t work, 2) give it another day or so. I have always been told that it takes 24-48 hours for DNS changes to propagate throughout the Internet; we’re not quite there yet, but almost.

I am confident that, once the glitches are worked out, you will be glad we switched. The new host actually seems to care about making the site work, and I can already discern a noticeable improvement in performance in terms of posting. Until recently, posting even a simple five-line post could be an excruciating 20-minute ordeal. No longer; I don’t have to set aside a huge block of time to post a simple entry — which will probably mean more posts from me (as time and my job permit). This will ultimately be a good thing.

One day this site might actually work. In the meantime, bear with us — and thanks for your patience.

The Greg Craig Saga

Filed under: Obama — DRJ @ 4:21 pm

[Guest post by DRJ]

President Obama named Greg Craig, a Clinton lawyer and confidante, as his first White House Counsel. Craig’s job was to roll back President Bush’s terrorism policies and close Guantanamo but, by Fall 2009, Craig had been sidelined as Obama realized his campaign promises were unworkable in fighting the war on terror. Craig’s resignation as White House counsel was accepted in November 2009 and he left in early January 2010.

As a candidate, Obama promised to enact tough ethics rules regarding former employees, and he spoke about it when Craig agreed to represent Goldman Sachs last month:

“Obama also said he isn’t embarrassed that Greg Craig, his former White House counsel, has been hired by Goldman Sachs. “He’s one of the top lawyers in the country,” Obama said. “He has a range of clients. But we have the toughest ethic rules that any president’s ever had.”

“The one thing that he knows is that he cannot talk to the White House,” Obama said. “He cannot lobby the White House. Once he left the White House, he cannot in any way use his former position to have any influence on us.”

One of Obama’s strengths is his ability to portray himself as a guardian of ethics and the public interest. One of his weaknesses is the facts often betray that image:

“President Barack Obama tried to avoid a high-profile ouster of his original White House counsel, Gregory B. Craig, by coaxing him out of his job and into a federal judgeship, according to a new book.

Craig declined Obama’s offer, and his forced removal — which he learned of while reading the morning paper — caused a backlash by Craig’s Washington loyalists, who felt he was being treated shabbily, and by many liberals, who believed he was being punished for trying to fulfill Obama’s failed campaign promise to shut the terrorist detention center at Guantanamo Bay, Cuba.

The details on last fall’s Craig imbroglio are among the revelations in Jonathan Alter’s “The Promise: President Obama, Year One,” a behind-the-scenes narrative of the administration’s first year that comes out Tuesday.”

Alter’s book also portrays Craig’s departure as a showdown between Craig and Rahm Emanuel and contributes to the image of Obama’s trash-talking, male-dominated Administration.

Follow the link for more of the Obama drama. And stay tuned, because I have a feeling more Obama-is-fallible stories could surface.

— DRJ

Arizona to LA: Let’s Renegotiate (Updated)

Filed under: Economics,Government — DRJ @ 3:24 pm

[Guest post by DRJ]

Following up on the LA City Council’s call for a boycott of Arizona, an Arizona Republican suggests the LA officials back up their words by renegotiating their agreements with Arizona companies that provide water and electricity to LA:

“Arizona Corporation Commissioner Gary Pierce is threatening to encourage the state’s utilities to cut off energy delivery to Los Angeles if the city does not back down from its boycott over the state’s new immigration law.

“If an economic boycott is truly what you desire, I will be happy to encourage Arizona utilities to renegotiate your power agreements so Los Angeles no longer receives any power from Arizona-based generation,” Pierce, a Republican, wrote Tuesday to Los Angeles Mayor Antonio Villaraigosa, a Democrat.

“I am confident that Arizona’s utilities would be happy to take those electrons off your hands,” he continued. “If, however, you find that the City Council lacks the strength of its convictions to turn off the lights in Los Angeles and boycott Arizona power, please reconsider the wisdom of attempting to harm Arizona’s economy.”

Pierce is one of five members of the statewide elected commission that regulates utilities in the state.”

I doubt LA will take him up on the renegotiation, proving that talk is cheap on both sides. But Arizona has done more than just talk about how to solve its problems. Arizona’s leaders acted so it’s not really a surprise that someone in Arizona is willing to call LA’s bluff.

— DRJ

UPDATE — LA Mayor Villaraigosa responds:

” In a letter exclusively provided to Hot Air, Pierce questioned how a city-wide boycott of Arizona would work while LA continues to light the city with Arizona electrons. In response, Villaraigosa bravely … ducked the question entirely:

Mayor Villaraigosa is in Washington D.C., meeting with Mexican President Felipe Calderon, but his deputy chief of staff issued the following statement: “The mayor stands strongly behind the city council and he will not respond to threats from the state that has isolated itself from an America that values freedom, liberty and basic civil rights.”

But Pierce wasn’t threatening anything. The ACC doesn’t have the authority to cut Los Angeles off from Arizona power, although it has enough influence with utilities in the state to have them rethinking their sales policy.”

L.A. Times Columnist: Dare I Send Mom to Arizona?

Filed under: Immigration — Patterico @ 8:04 am

At the L.A. Times, Hector Tobar recently wrote a column about the dilemma of whether to send his mother, a U.S. citizen living in Guatemala, back to Arizona to see her old friends. The problem: she is scared of the Nazis demanding her papers (h/t Bradley Fikes):

The Grand Canyon State has been on her mind lately. She used to live in Sedona and still has many friends in northern Arizona. In fact, she was planning on visiting them next month.

She’s back in her native Guatemala now — it’s cheaper there for a retiree — but travels frequently to the U.S. After many hours at home watching reports about Arizona on Fox News, CNN and CNN en Español on her satellite TV, she was deeply worried. A kind of madness had overtaken her old home state. It was up in arms over immigration.

“I don’t want to take the risk that they’ll hear my accent, look at me suspiciously and take away my U.S. passport, thinking that it’s false,” she wrote.

Tobar writes that he talked to one family friend who said that the worry is ridiculous. But, you know, his name is “Herb Dyer” — so what does he have to worry about? Unsatisfied with Herb’s answer, Tobar goes to another family friend who gives him the dark side:

Now the climate there has grown very ugly for people of Mexican descent, Rodriguez told me.

He’s grown used to being stopped by police who demand various documents. Often the stops seem arbitrary. Sometimes a patrol car will tailgate his vehicle on the highways around Cottonwood.

His U.S. citizenship is a kind of shield against official harassment. But his friends and relatives who are legal permanent residents live in fear of the authorities. “If you’re driving in a car with someone who doesn’t have papers and they stop you, you could be arrested for smuggling,” Rodriguez said. Such an arrest could lead to loss of legal status.

There’s no magic way to tell legal from illegal immigrants just by looking. Illegal immigrants have even managed to fake their way into jobs as police officers, and a growing number speak English better than Spanish. In today’s Arizona, a lot of people learn the status of a friend or acquaintance only when something goes wrong.

Well, if the illegals are the cops, you’d think they’d go easy on the whole “demanding papers” issue.

Tobar concludes his column with this:

My mother is the most deeply intuitive person I know. So when she gets back I’ll ask her “Did you feel any fear in Arizona?” I know she’ll give me an honest answer.

Well, of course she’ll feel fear. She already does. That tells us nothing.

How about asking her: “Did the police give you any trouble in Arizona?”

And then, when she says no, how about coming back to your readers and giving them that honest answer?

I’ll be over in the corner holding my breath.

P.S. If you found the paranoia of this column enjoyable, Bradley Fikes has another ridiculous L.A. Times piece on Arizona for you: Sandy Banks’s column about black bridge players conflicted about playing in a bridge tournament in Phoenix. If you can make it through the whole thing without rolling your eyes several times, you’re stronger than I am.

Did the L.A. Times Spike a Pro-Kaus Piece?

Filed under: Dog Trainer — Patterico @ 7:30 am

Mickey Kaus asks whether the L.A. Times spiked an opinion piece by Jonah Goldberg favorable to Mickey:

And he’s sheveled? Jonah Goldberg wrote a very generous article (except for the “balding, often disheveled” part). … When he interviewed me, though, it seemed pretty clear he was writing it for the L.A. Times. I wonder what happened? …

Me too. I may send out some inquiring e-mails later today.

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