Patterico's Pontifications

5/19/2010

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.

55 Responses to “Jeff Goldstein: Textualist?!”

  1. Apparently I have been banned from leaving trackbacks at Goldstein’s site. Help! I’m being repressed!

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

    Patterico (c218bd)

  2. you forgot your thinger at the end

    happyfeet (c8caab)

  3. The locus of the meaning is the locus of the meaning even if it is hard to decipher.

    With six you get egg rolls.

    daleyrocks (1d0d98)

  4. 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?

    That’s hardly ever the point Mr. Patterico I don’t think. It is very America I think simply to assert that efforts to claim a legislative intent what is clearly gay or stupid should be greeted with an appeal to the intent of the legislation surely not having been gay or stupid.

    happyfeet (c8caab)

  5. “you forgot your thinger at the end”

    No I didn’t.

    Patterico (cbd8b7)

  6. “The locus of the meaning is the locus of the meaning even if it is hard to decipher.”

    Well, it’s easier to decipher if you get to dismiss intent that is not signaled. I just never heard of that as an intentionalism principle.

    I wonder how broad that is. In what contexts do we get to dismiss unsignaled intent?

    I sense another conversation between a statute and an intentionalist on the horizon.

    Patterico (cbd8b7)

  7. oh.

    Carry on then.

    happyfeet (c8caab)

  8. Is there some good reason I should have included it, happy?

    Patterico (cbd8b7)

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

    No it’s not a textualist answer it’s just to say that sometimes intent is not signaled and you have a miscommunication like when your dog bites your finger when you give him a tasty morsel and it hurts. It doesn’t matter what the dog’s intent was you have to teach the wupper not to do that.

    Or maybe it’s not like that at all. But it’s not textualist.

    happyfeet (c8caab)

  10. hmmm. Is your intent that by not including it you mean to invite personal comments and such?

    happyfeet (c8caab)

  11. sorry the comments aren’t flowing well here…

    speaking of not flowing

    how long is wine good if you forgot to put the cork back on?

    happyfeet (c8caab)

  12. If we are going to keep this conversation on a serious level …

    It matters a little bit more if it’s a law I guess, but, in any kind of communication, I think you have to respect the person to whom you address it and say it/write it in a way that he reasonably understands it. Your intent be damned.

    nk (db4a41)

  13. you know who I bet knows is Beldar

    happyfeet (c8caab)

  14. #11 how long is wine good if you forgot to put the cork back on?

    Long time if you dump into your next beef stew with some carrots, peas and taters.

    HeavenSent (a9126d)

  15. how long is wine good if you forgot to put the cork back on?

    Comment by happyfeet — 5/19/2010 @ 8:16 pm

    Until the next time you feel like having a drink. Good wine does not turn to vinegar.

    nk (db4a41)

  16. Comments seem to be flowing pretty good over here. Or am I just talking to myself?

    nk (db4a41)

  17. ok I will drink…

    me I have to dump cookies every time to get new comments

    at work was worse I couldn’t even get the new blog at all

    But at work I’m in New York on the Internet and at home I’m here in Los Angeles.

    happyfeet (c8caab)

  18. hmmm. Is your intent that by not including it you mean to invite personal comments and such?

    I don’t know. Do I normally invite personal comments? I just don’t feel like setting up special rules for this thread. I don’t feel like obligating myself to deleting comments that are far milder than the comments regularly being made about me elsewhere.

    Anyway, I understand the very best bloggers make (and invite people to make) personal comments about me. And about you.

    Patterico (c218bd)

  19. It matters a little bit more if it’s a law I guess, but, in any kind of communication, I think you have to respect the person to whom you address it and say it/write it in a way that he reasonably understands it. Your intent be damned.

    Apparently the intentionalists now think intent be damned too. Or at least that intent can be “dismissed” when not signalled properly in certain contexts.

    Patterico (c218bd)

  20. Same for me, nk. Posts and comments are loading quickly for me tonight.

    DRJ (d43dcd)

  21. No it’s not a textualist answer it’s just to say that sometimes intent is not signaled and you have a miscommunication like when your dog bites your finger when you give him a tasty morsel and it hurts. It doesn’t matter what the dog’s intent was you have to teach the wupper not to do that.

    Or maybe it’s not like that at all. But it’s not textualist.

    Call it whatever you like. If I get to dismiss poorly signaled intent to interpret laws, I’m good. It’s what I have been saying from the beginning. I’m just surprised to see support from it from Goldstein.

    But it’s the only coherent answer. You can’t possibly appeal to intent that isn’t signaled in the law. As I have said, again, from the beginning.

    Patterico (c218bd)

  22. people have hard edges a lot in America

    happyfeet (c8caab)

  23. In fact, I’m so pleased by his concession that I’m not even bothering in my post to address the other nonsense in his post, about how intentionalism is like gravity or something.

    It’s hilarious. I make the point that, if you accept Goldstein’s definition of “interpretation,” then (tautologically) interpretation is what Goldstein said it is. I.e. if you accept that his definition is right, then his definition is right. But Scalia doesn’t accept that Goldstein’s definition is right, but instead defines “interpretation” differently. At which point, Goldstein has to make an argument other than relying on his own questionable and challengable definitions. And it’s not an argument to say: “You’re wrong because here’s my definition.”

    And the response to that is: “Oh, so I can’t argue that all my definitions are automatically right. That’s like saying I can’t argue gravity is automatically right.”

    Uh . . . except that I have shown that Scalia’s definitions FIT EMPIRICAL REALITY and Goldstein’s DON’T — so it’s really more like Scalia would have a better claim to making the “You Can’t Contradict Me Because I’m Automatically Right No Takebacks!!!1!!” argument.

    But why quibble — or bother answering all those questions Goldstein asked — when he has conceded the main point? We get to dismiss intent that isn’t properly signaled. Excellent. That’s good enough for me.

    Until he walks back his phrase, that is. Which walkback is coming in 3 . . . 2 . . . 1 . . .

    Patterico (c218bd)

  24. You’re sick.

    John (7517b5)

  25. 3… 2… 1… and… three kworters…

    happyfeet (c8caab)

  26. You’re sick.

    Let’s see. Contentless insult, check. Lack of argument, check.

    How’s about you offer some SUBSTANCE, chump, or I’m sending you and your comments to the same neverland that your pal Goldstein sends my trackbacks to.

    Patterico (c218bd)

  27. The home page says there are 26 comments, but only two show in my browser. I wonder what people are saying. I’m sure the site will clear up soon.

    daleyrocks (1d0d98)

  28. I am always curious to see the signals of intent in a 100 some odd tome of law concerning water purification plant permitting processess

    EricPWJohnson (cedf1d)

  29. Mr. Johnson the intentionalism, it is to say that if someone tells you that the water purification plant permitting processess are adaptable to taco farming, you can say no it is not adaptable the principles involved are quite different and furthermore this tome was not written with the intent of providing guidance for taco farming.

    happyfeet (c8caab)

  30. HF

    Hard or Soft?

    EricPWJohnson (cedf1d)

  31. they are both tasty but soft, mostly

    happyfeet (c8caab)

  32. In other news…

    The Bird and Otter Prince William Sound rescue squad – freshly arrived in Barataria Bay extracted 2 associates, a senior partner and a handful of support staff from the oil festooned booms.

    Rushing them to the cleaning stations they were scrubbed clean of all pollutants including an astonishing quantity of hair gel.

    They were then gently released two blocks from the state supreme court building on Royal street

    EricPWJohnson (cedf1d)

  33. Bobby Jindal, drama queen.

    It’s just not attractive.

    happyfeet (c8caab)

  34. feets – But Jeff G. said without intent we cannot interpret words, which are just marks which have been signified, and if we are just left with marks, they might as well just be egret scratchings. Do you see the dilemma here?

    daleyrocks (1d0d98)

  35. I might have to journal about all this.

    daleyrocks (1d0d98)

  36. Personally, I’ve read a lot of books and gleaned a lot of messages in my life without wondering about the author’s intent – not to say it wasn’t there, of course, just that it wasn’t necessary to appeal to it as a separate entity: conventional signaling, and whatnot. I’ve written on a couple of occasions that the major difference between in this whole spat seems to be that Patterico treats convention as a necessary and useful thing, and Goldstein treats it as a slur – a Leftist Tool of Oppression ™.

    And, for what it’s worth, if I saw a bunch of egret tracks that spelled out words (in the straight-up English language sense of the term), I wouldn’t marvel at the wackiness of dumb animals; I’d try to figure out how a bird learned human language. Which is a point for textualism, I think. Patterico’s already made the point.

    Leviticus (30ac20)

  37. Anyway, intoxication disclaimer. Count the aforementioned comment as inadmissible. I’ve commented on this stuff enough as it is.

    Leviticus (30ac20)

  38. And, for what it’s worth, if I saw a bunch of egret tracks that spelled out words (in the straight-up English language sense of the term), I wouldn’t marvel at the wackiness of dumb animals; I’d try to figure out how a bird learned human language. Which is a point for textualism, I think. Patterico’s already made the point.

    Indeed. Next time you see a monkey typing up Hamlet you’re going for your video camera, dude. You’re not shrugging and saying: “Wow. Look at those unintended, coincidental marks!”

    Patterico (c218bd)

  39. … to which Goldstein replies “but you’re proving my point by assuming that the monkey INTENDS to create those marks”, to which I reply “who fucking cares? The point is, if the monkey types out ‘I’m a human trapped in a monkey’s body’, I’m not going to sit around pondering his intent, because it’s completely fucking obvious from his words, even if I assessed them in a contextual vacuum.”

    But the monkey-man meant what he meant. He’s totally got you there, Pat – consider yourself undone.

    Leviticus (30ac20)

  40. Since you followed this, Leviticus, I am actually interested in your take on this sudden revelation that we may “dismiss” unexpressed intent. Really? Isn’t that textualism?

    I think I’m done, for reals — because I am seeing the dude behind the curtain and wondering why I wasted my time. I thought I was done before but the seeming complete cave drew me back in.

    Patterico (cbd8b7)

  41. Leviticus – Dude, you are so down with this stuff!

    daleyrocks (1d0d98)

  42. Patterico – my take on this is that Goldstein is a self-important sophist. His take on it is that you are a self-important lawyer. Ultimately, I think that you’ve toed the more useful line: while Goldstein has continually insisted that a speaker meant what he meant (without any opposition), you’ve quickly moved beyond that to address questions of application (which I think Goldstein has neglected). Goldstein’s truism is useless, outside of a lesson in basic manners. For him to say that “those individual intentions that don’t get signaled can be dismissed” is for him to answer your most pressing question in the affirmative (essentially verbatim)… only he would disagree, for one reason or another. ‘Cause of the signifiers and whatnot. And Stanley Fish. You wouldn’t understand.

    Patterico: Once a judge has assessed and acknowledged a speaker’s intent in signifying a certain message in a certain manner, may the judge then dismiss that intended signification as inconsistent with any conventional understanding of the chosen signifiers, and instead enforce the disputed question in a manner consistent with a conventional understanding of those signifiers?

    Goldstein: No. But those individual intentions that don’t get signaled can be dismissed.

    Everyone else: …

    Ow, my brain.

    Leviticus (30ac20)

  43. Mr. G is not a self-important sophist. You ones kinda misunderstand the whole dealio, Mr. Leviticus. You take the conversation to mindbogglingly boring and tedious places when the simpleness of it is just that people should have integrity with respect to the licenses they take with other people’s meanings. It’s about not willing yourself the power to violate and appropriate the texts of others. It’s fundamentally about humility.

    happyfeet (c8caab)

  44. Goldstein’s theory is only simple if you talk about it in generalities and don’t apply it. Almost everything is simple in theory. Applying ideas to real life is where it gets hard.

    DRJ (d43dcd)

  45. It’s ok if it’s hard as long as you make a good faith effort I think.

    happyfeet (c8caab)

  46. Just do your best not to warp anybody’s intention to suit your own ends is the takeaway I think.

    happyfeet (c8caab)

  47. “when the simpleness of it is just that people should have integrity with respect to the licenses they take with other people’s meanings.”

    – happyfeet

    Yeah. I know that. I’ve said that multiple times. See here: “Goldstein’s truism is useless, outside of a lesson in basic manners.” The problem is, Goldstein is painting himself as some sort of genius for peddling a “theory” which is really a lesson taught to well-raised kids by their sainted grandmas when they but wee tots. And he’s repeatedly asserting that everyone who takes the significance of that “theory” with a grain of salt is dumber than a post, and Probably a Leftist to Boot. He’s a snake-oil salesman; and I may be young, but I wasn’t born yesterday.

    Leviticus (30ac20)

  48. It’s ok if it’s hard as long as you make a good faith effort I think.
    Comment by happyfeet — 5/20/2010 @ 12:04 am

    As long as you stay out of the tiger cage at the zoo, he’s unlikely to eat you. Different story in the jungle.

    What do you do when one side is not acting in good faith? There has to be a practical application which intentionalism alone fails to provide. I’ve followed much of this, but stayed out for a reason. I’ll paraphrase what I told a friend over a week ago:

    Words have meaning and if you’re consistently not communicating effectively it’s your own fault. Semanticists would rather be technically right and misunderstood than communicate. Intellectual arrogance. I think it’s a waste of time to engage them. They will never admit they are wrong because they “intend” to be right (which is why intent rules) and will keep twisting words and concepts until others give up trying to understand them or even trying to get them to acknowledge a single point. Then, they claim victory.

    Intentionalism can be an interesting intellectual topic, but the practical application is inherently dishonest and unfair because human nature makes it so. It allows the most talented liar to win every time, whether during a debate, or in the case of the law, in court. It’s inherent flaw is that people are flawed.

    Stashiu3 (44da70)

  49. Well no I think you’re misreading his tone… there is an immeasurable lot that we are losing because people are quite content to glibly misrepresent what other people say… it’s actually become a trait we prize and reward in our pitiful pitiful doomed little country what once held such promise.

    We give losers like that a seat behind the desk of the Oval Office what is in our White House and then we slap a Peace Prize on their supercilious ass to boot.

    Sick.

    That’s more why the tone I think.

    Just think about our little president man’s gay dirty socialist some people say… but we say… and I say blah blah blah construction and then you’ll get the tone more better I think. Which, I would say the tone is more a despairing one. We’ve lost so much. More than any little country ever. And the raping of intent is a big part of how.

    happyfeet (c8caab)

  50. One caveat: I’ve only followed it here, not at PW.

    Stashiu3 (44da70)

  51. oh. 49 was for Levi…

    Mr. Stashiu I think it’s simpler than that.

    I really do.

    People get all confloozerated about it I think cause at first blush it feels unempowering.

    But it’s not.

    happyfeet (c8caab)

  52. feets, I agree it should be simple. Unfortunately, the rhetorical contortions are coming almost completely from one side. It’s not the textualist side either. Words have meaning that when given a plain reading from a reasonable person should result in a common understanding.

    Especially when there are legal consequences. If intentionalism cannot be applied consistently with law, it is incomplete. Trying to create a “Unified Intentionalist Theory of Language” is much like a geo-centric model of our planetary system. You can’t make it work unless you forbid heretics. Even then, it’s still not truth.

    Stashiu3 (44da70)

  53. Srahiu3 @ 52 – The contortions would make a 14 year old Thai tranny hooker blush. Well said.

    daleyrocks (1d0d98)

  54. That was Stashiu3

    daleyrocks (1d0d98)

  55. This whole ballet could be avoided if we just take people at face value when they say something. Why argue over intent? What did the person say? If I say “I am going to kill you” it means I intend to kill you.

    If a law says “the right of the people to bear arms shall not be infringed,” it means, I don’t know….maybe the right of the people to bear arms shall not be infringed.

    I don’t believe in hidden meanings and code words. I read what is written and that is what I read.

    otcconan (f28699)


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