The Jury Talks Back


Textualism and Intentionalism

Filed under: Uncategorized — Leviticus @ 8:55 am

I know I’m completely out of my league when I talk about this stuff – between the two of them, Patterico and Goldstein have parsed the issue inside and out. But the issue is really interesting to me – the implications are apparent, even if the discussion seems a little esoteric at times (usually when I’ve had my brain fried by trying to read and grasp one of their in-depth posts on the subject).

Unfortunately, I essentially missed Patterico’s last post on the subject – entitled “Revisiting the ‘Plain Language vs. Legislative Intent’ Debate in Legal Interpretation” – over at the main blog. It was written as a response (among other things) to a post by Goldstein which asserted that textualism was essentially at odds with intentionalism (though the two often produced similar results).

I left two comments at the very end of that thread – and, as cocky as it sounds, I think they really provided a good reconciliation of textualism and intentionalism, based on the notion of a hierarchy of linguistic signifiers. Since the main thread is more or less dead, however, I wasn’t able to have those comments purified by the fire of public scrutiny. And because I do think the comments really got at the heart of the issue, I’d like to see what people think about them. Again, it feels a little big-headed – sorry.

Here they are:

“106. I’ve joined the party kinda late, but it seems that the reconciling conclusion here is that in legislative instances, the rule of law demands that legislative text be treated as legislative intent until new legislative text revises/clarifies it. Since we are bound by the very nature of our task to choose some signal in ascertaining meaning, might we not as well choose written language over spoken language when the two conflict? Both are signals, intended to communicate meaning – is it not in keeping with intentionalism to have a preference for certain signals over others in certain contexts?

It seems that Goldstein is arguing that the act of choosing, as an interpretive audience, between one signifier of intent and another – that is, choosing to privilege written language over spoken language – somehow hijacks the intent of the speaker/writer, by allowing the audience to select an interpretation which may be more in line with their own preferences. But what choice does an interpretive audience have, but to choose one or the other, and would it be any better to take the opposite path?”


“107. Put another way, is it wrong (from an intentionalist perspective) to have a hierarchy of signifiers? Because that’s what a proper textualist is, to my mind – an intentionalist with written language at the top of his interpretive hierarchy?

I mean, would Goldstein argue that all signifiers are created equal, even when they conflict? Would an intentionalist call it an honest misunderstanding when a rapist tries to justify his actions by appealing to a victim’s body language or dress as indicative of an intent to copulate, in lieu of spoken language to the contrary? If not, does that not privilege one type of signifier over another? Or am I missing something?”

It’s that last part that I’m really curious about – and I don’t know how many hardcore intentionalists we have here – but I’d like to know if I’m missing something in the whole intentionalism debate.

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