Patterico's Pontifications

5/5/2010

Textualism vs. Intentionalism: Real-World Implications of the Choice

Filed under: General — Patterico @ 7:09 am



Jeff Goldstein’s latest post on legal interpretation confirms that in his view, legislative intent always determines the meaning of the language written in a law. Responding to my hypothetical in which a tax law says it applies to people making over $100,000, Goldstein argues that if the legislature intended for it instead to apply to people making over $10,000, then that is what the law means. For the judge to conclude otherwise, Goldstein argues, is “activism” — because he is rewriting the law according to his own intent and not that of the legislature.

To my argument that the law actually says $100,000, Goldstein responds that what I call “plain text” can’t “say” anything on its own, because “the clear text of a law does not ‘say’ anything until we attach intent to it.” (More about this in a future post.)

Goldstein argues that there is a distinction between what a law “means” and what a judge does with that knowledge. However, for Goldstein, judges should always enforce laws according to legislative intent, rather than how reasonable people would interpret the text on its own. He argues that, in the hypothetical, the judge should interpret the written text “$100,000” as meaning “$10,000” because that is what the legislature meant — and allowing the judge to interpret the term any other way places the power of lawmaking in the judge’s hands.

I intend to respond more fully to the theoretical implications of his post at a future date. For now, I would like to bring this discussion into the real world — somewhat, by constructing a hypothetical based on real-life events.

ObamaCare does not prevent insurance companies from denying coverage to children based on their pre-existing conditions. But (here is the hypothetical) what if every legislator who voted to pass ObamaCare actually intended to prevent insurance companies from denying coverage to children based on pre-existing conditions? (Again, it is a core assumption of the hypothetical that this was indeed the legislators’ intent. It is not a post hoc argument they are making; your working assumption is that they actually did intend to include this concept in the law.)

Under Goldstein’s argument, if we assume that this was the intent of the legislators who voted for ObamaCare, then it doesn’t matter what words are in the statute — they mean whatever the legislators intended them to mean. If the legislators intended the law to include a prohibition against denying coverage to children based on pre-existing conditions, then the law does contain that prohibition — no matter how the text reads.

It wouldn’t matter that the legislators couldn’t point to specific language that a reasonable person would read as including this prohibition. It wouldn’t matter even if opponents could point to specific language that a reasonable person would read as saying the exact opposite of what the legislators’ intent was.

As long as we assume it to be the case that every legislator intended to pass such a prohibition, then under Goldstein’s view, their intent controls.

In my view, such an untethering of meaning from text is unworkable, at least in the field of statutory interpretation. As I argued in my post over the weekend, the rule of law demands that citizens be put on notice in the plain terms of the statute as to how to conform their behavior to the law. As a matter of linguistic theory, I can understand and appreciate Goldstein’s argument that plain text has no meaning other than that intended by the speaker. But if the unexpressed intent of the legislature can trump the interpretation that a reasonable citizen would give to a statute’s plain language, we are setting ourselves up for all kinds of problems.

How can it be workable to make citizens hostage to legislative intent that cannot be divined from the text of the law by a reasonable audience?

If the words of the ObamaCare law, as interpreted by a reasonable audience reading the text alone, fail to include a particular prohibition against insurance companies, do we interpret the law according to the text alone? Or according to the intent of the legislature, whether or not it was expressed in the text?

P.S. As with any post about intentionalism, I’m going to apply my strict no-personal-attacks rule in this thread. Comments must be strictly about ideas, with absolutely no personal comments whatsoever. Comments that do not follow this rule will be summarily deleted. Comments that blatantly violate the rule may earn the offending commenter a time-out or a ban.

Given my restrictive rules, I will accept comments from banned commenters, as long as they follow the rules I have set forth. No personal digs are allowed, no matter how small — but any articulation that hews strictly to the expression of ideas will be allowed.

I will not respond to any argument — whether made here or at any other site — that misstates my argument, or belittles it, or attempts to turn this into a discussion of personalities rather than ideas.

101 Responses to “Textualism vs. Intentionalism: Real-World Implications of the Choice”

  1. Anarchy!

    daleyrocks (1d0d98)

  2. I should note that Leviticus has posted on this issue at the Jury:

    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?

    The short answer, I think, is that Jeff is not doing what Leviticus has accused him of; instead, he is adhering faithfully to the assumptions of my hypothetical. He is not choosing oral signifiers of intent over written ones because he thinks they should be given more weight, but because in my hypo, I specified that the true intent of the legislators was in line with those oral expressions.

    Patterico (c218bd)

  3. Communication is receiver dependant.
    Me: Clean up your room.

    Child: I’m done.

    Me: your bed is not made.

    Child: I picked up the stuff on the floor and put my clothes away – the room is clean.

    Me: I wanted you to make your bed too, the room isn’t clean if the bed is not made.

    Child: if you wanted me to make my bed, you should have told me – you said clean up my room so I did.

    Me: O.K. fine. Now go make your bed.

    Child: (stomps off grumbling about how “unfair life is”)

    Me: I heard that!

    Words have meaning. Legislation either has the meaning of the words contained therein or everything other than the “common title” is surplusage. In the above example, I either include and define what I want to occur, or I accept the limitations that the reciever puts on information. This is why legislation is 1500 pages long, if it was based on intent we would just have a one page bill as follows:
    Title “Obamacare”
    Whereas people should get free healthcare:
    Therefore everyone who Congress thinks should get stuff, does; and it gets paid for by accounting gimicks and taxes which we will tell you about later…maybe.

    Dudeman (b50a96)

  4. I’ve been utterly puzzled by this whole intentionalism thing which I simply can’t fathom as applicable here.

    The bottom line with statutes is notice, notice to those affected. It is a key part of our legal system that people are entitled to notice of how the law affects them. It is fundamental to our sense of due process. And there is no notice of the legislators’ “intent”. One can only have specific notice of the actual language.

    That’s the end of the debate right there for me and all else is just nonsensical.

    SPQR (26be8b)

  5. Bad enough that they pass a 2,000 page law that no one has read. Some one can sort through this War and Peace size tome and find specific provisions. But if every word and phrase is open to whatever “intent” the authors or legislators had when they voted, then I have a hopeless task>

    And that brings a second point. How do we determine what the legislatures “intent” was? The bill (bad as it is) is at least lying there on the table in black and white. To determine the “intent” of the legislture do we have them revote every time a question arises? And they may intend one thing today but if there is a well publicized case of a child dieing after being denied coverage by the government would their attitudes (and votes) change?

    And a final thought. If we do go by the legislatures intent on this law it is one thing to ask them, but who do we ask after the next election? Would the Republicans have to repeal the bill or could they just announce, “That’s not what was meant.” and change it by fiat. If a court has a question over the intent do they check with the current office holders or the prior office holders who have been sent home by their constituents?

    And what of, say for instance, the Gun Control Act of 1934? Who do we ask about the intent of the framers of that act? Do we require the equivalent of the Federalist Papers for every legislative act?

    Have Blue (854a6e)

  6. “We’ve always been at war with Eastasia.”

    Our intention, as everyone knows, is that we’ve never been at war with Eastasia.

    “We’ve never been at war with Eastasia.”

    Our intent, as everyone knows, is that we have always been at war with Eastasia.

    Rinse…repeat…

    DrummingAncient (a4f871)

  7. Good post and I agree with SPQR that the rest seems nonsensical when it gets to this point of intent.

    I’ll add more nonsense… how does one discern intent when there are dozens of framers of the law. Does ‘her’ intent trump ‘his’? Does the intent of the original creator (or creators) of the bill supercede amendments made by others? Or the other way around? Does the party in power have more power of intent than the other party? What about years of service?

    To me, this is where we waste so much as a society.

    Corwin (ea9428)

  8. I think the problem is how do you read intent into something that’s missing? It’s one thing to say a word contained in the bill means something based on intent; it’s a completely different thing to read a missing provision into the bill based upon intent. You could argue that if the legislature discussed something, but left it out of the final version, that they intended to leave it out. See the slippery slope?

    Rochf (ae9c58)

  9. “Intent” is whimsy and ephemera. Who knows what “intent” is for a group of over 500 people. How is it different from wants and desires? Legislators all say they want children insured and that is their intent …
    But some sold their votes for cash. Some wanted different language but were strong armed into voting for the language passed. Some wanted mutually exclusive alternatives equally. Some were too stupid or lazy to read the text to learn what it said.

    Does “intent” mean anything at all? I say no.

    quasimodo (4af144)

  10. “Intentions” is nothing but bleep, bleep, and more bleep. Assume a law passed the Senate 51 to 49. The bill says $100,000. The losing 49 Senators gave speech after speech saying $10,000. The 51 winning Senators said absolutely nothing other than yes when it was time to vote.

    What’s the correct number? The actual law or the intentions of those who spoke out?

    Charlie B (d207cf)

  11. The reality is that this intentionalism stuff gets lost when it views legislation as “communication”.

    Assume that all this intentionalism is just brilliant stuff when discussing communication. That’s wonderful.

    Legislation is not communication. Legislation is a structure, an edifice, a product in and of itself. Legislation is not a medium for communicating ideas. Legislation is the end product and “intent” is meaningless just as an architect’s “intent” is meaningless when the building collapses.

    SPQR (26be8b)

  12. #11. SPQR
    Well said.

    quasimodo (4af144)

  13. I think Hamurabi created the first written code of law, so that people would know what the law actually is…and so that people could refer back to it.

    English is an expressive language and has the largest vocabulary on the planet: about a million if you include scientific terms.

    Good laws reflect the intent of the legislators; bad laws fail to make the intent clear. If intent is what matters, then I am at the mercy of whomever determines what that intent is, not the written text, and certainly not the original legislators.

    I don’t want to be at the mercy of those who determine ‘intent’ at any time, but especially after the legislation has passed.

    Barak Obama (e383ed)

  14. I’m torn on this. My natural presumption is intentionalist: words only have the meaning people attach to them, so a judge who doesn’t use legislative intent uses what he word means to him rather than what the word meant to the people adopting the law. Ideally I want legislation interpreted the same way I’d want contracts interpreted: the words mean what the writers/signers intended them to mean, not what a third party believes they mean.

    And yet my experience with statutes and with the legislative process (or, worse, the initiative process) leaves me convinced that it’s very, very, very difficult to ascribe intent to legislative bodies.

    aphrael (73ebe9)

  15. I do think that, more generally, Leviticus is onto something, as are other commenters.

    Patterico (128896)

  16. aphrael:

    Once we get out of the realm of hypotheticals and assumptions, I think your point (raised by other commenters as well, such as Have Blue) becomes paramount. We have to recognize that legislation is compromise — and the field on which the compromise takes place is the text. That is why the text has to be paramount.

    I’ll discuss this in a future post. Right now I want to stick with theory and the hypothetical in question.

    Patterico (128896)

  17. alpharel’s point is indeed paramount. Politicians lie. They lie about many things but their “intent” is among those lies. They have lied since the days of the Roman Republic where senators and tribunes lied about their intent in crafting their legislation.

    SPQR (26be8b)

  18. I don’t really understand this argument. If we are to be governed by legislative intent rather than the actual text of the legislation, how are we to determine what the intent actually is? Usually a few legislators will speak out about the intent of a particular piece of legislation, but I would hazard to guess that it is nowhere near a majority of the body. Attempting to discern intent from the comments of a small minority runs the risk of getting the intent of the legislature as a whole incorrect. Clearly what ought to happen is there should be some type of document where the intent is written in a clear, unmistakable, and understandable language, and then the legislature as a whole could vote on it. I was obviously under that mistaken impression that this was already taking place with the bill being the document in question.

    Hal Duston (3304c6)

  19. People are fallible, and perhaps lawmakers are more fallible than most. I’d say that any law should be interpreted as written. If that was not the ‘intent’ of the legislation, then by all means, let the lawmakers amend it so that a clear reading of the law matches their intent. If the attempt to amend the law fails to pass, that would be a very clear indication that perhaps the original reading of the law was as intended after all.

    Bugz (5f95ec)

  20. So, in your example, from your original hypo:

    Responding to my hypothetical in which a tax law says it applies to people making over $100,000, Goldstein argues that if the legislature intended for it instead to apply to people making over $10,000 $1,000,000, then that is what the law means.

    I do not think I would stand much chance in court.

    Dr. K (0e9868)

  21. This is silly. A court reviewing the law goes by the text in the statute unless it is ambiguous or produces an-on-its face absurd result.

    When ambiguous, there are different ways established to clear that up.

    But if the law just forgets a fine or penalty or tax or whatever, there is no fine or penalty or tax.

    SarahW (af7312)

  22. And by the way, what the legislature meant to do and what they did do are two different things. Courts establish meaning by what they did do, and that’s the penalty to lawmakers for making a mistake. The legislature has the power to amend it. Until they do, it’s NOT amended.

    THe end.

    The bill a legislator THINKS he is signing and what he signs are not necessarily the same. What he ends up voting on is what he decided to help pass with his vote.

    SarahW (af7312)

  23. A few thoughts.

    It seems to me that the basic difference between Patterico and Goldstein is this.

    Goldstein is concerned about the poor legislator who didn’t bother to read or comprehend the bill he or she wrote, that they might have a typo that lets bad people get away with bad things.

    Patterico is more concerned about someone trying to figure out what the dang law has to say.

    Personally I tend to have more sympathy for the guy who didn’t screw up than the one who did.

    What Goldstein has in his corner is two facts. One is apparently our legislators don’t actually read their own bills, don’t comprehend them, etc. And two, even when plainly written I don’t know how any regular citizen could hope to understand it all.

    But on the other end, the best part of Patterico’s argument is that he is talking about the ideal. Shouldn’t our congressmen actually read and comprehend these laws? If they can’t, then doesn’t that mean we need simpler, or more plainly written, laws? In the name of efficiency all around, if we forced congress to stick to what they actually write, it would force them to actually write it in language that they understood (which isn’t as good as making it in language regular people can understand, but it’s a step in the right direction), and it would create a useful predictability in the law. Maybe regular people wouldn’t understand it, but lawyers could tell their clients with much more certainty what the law says, and in the world of business, certainty of law is a big deal.

    I mean why write out all those words anyway. Why not instead make lots of speeches saying what you hope this legislation will do and then have the law say, “just do what you think we intended?” The very act of writing down words seem to imply they were important.

    It certainly would have simplified the discussion over health care reform. “The courts shall make up whatever they need to make sure everyone gets thousands of dollars of health care coverage, even if no one is actually putting in thousands of dollars into the companies. And everyone will get a unicorn, too.”

    And there is also a certain idealism underlying Goldstein’s argument. When you tell the courts to go ahead and ignore the text of a law in favor of what Congress intended, then its an open invitation to the courts to read the law according to their—meaning the court’s—intent. The most obvious example is where the supreme court read the civil rights act of 1964 to allow for affirmative action. whether you like affirmative action or not, who are we kidding? Of course they didn’t intent to allow it. They could barely convince a sufficient number of senators to promise pass a law preventing discrimination against black people; and you think they were willing to allow for positive discrimination against whites? Oh, that would be popular.

    And even if you like the results of these flights of fancy, that isn’t exactly democracy, now is it?

    And indeed Goldstein presumes a set of facts that rarely exists. The evidence of intent is rarely all that clear, so that is another example of his idealism.

    A.W. (e7d72e)

  24. Goldstein’s argument reminds me of the scene from “Guys and Dolls” in which Big Jule insists on playing with his invisible dice. He is the only one who can see the spots. Some judges are a lot like Big Jule.

    BarSinister (edbc1a)

  25. Patterico,

    My assessment of Goldstein’s position was related to his wholesale separation of textualism from intentionalism; it wasn’t related so much to his response to your specific hypothetical – indeed, his response to your hypothetical was in keeping with espoused philosophy.

    My larger point was that Goldstein himself acknowledges the importance of the operation of language through “signifiers” with attached meanings. So: both the text of your hypothetical bill and the documented expressions of your hypothetical legislature are signifiers of intent – but they conflict. The question, then, is not whether we privilege textual plain meaning over pure legislative intent – the question is whether we privilege one signifier of intent over another.

    The second question I posed in my post at the Jury is important, here, because it illustrates the propriety of having hierarchies of linguistic signifiers in certain circumstances .

    “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 (and honestly believed that), in lieu of spoken language to the contrary? If not, does that not privilege one type of signifier over another?”

    I suppose Goldstein would argue that the proper response to that situation would be to privilege one person’s intent, rather than one type of intent – but if the rapist were acting in a way that he honestly thought was in keeping with his victim’s intent, I don’t see how a pure intentionalist could fault him for that – which isn’t intended to be some kind of slur on intentionalists, by the way, just an illustration of the difficulties of a strict adherence to such a philosophy.

    Levticus (30ac20)

  26. Comment by Dudeman

    Wonderful analogy, but one problem. In your scenario it is the adult expressing the “legislation” and the child “interpreting” it according to his/her liking.
    The problem here is that it is the children, or at least people acting childish, who are trying to make the legislation in the first place.

    If you let the childish ones get away with saying they didn’t mean what is written down, just where would that stop? Like Charlie B (and others) makes a point of above, after the vote, who has the authority to say what it “really meant” or not? While one would like to assume that our representatives would function with honesty and in good faith, very few people, if anybody, would credit “honesty and good faith” to 95% of Congress. Individuals would vary in their opinion of who was operating with “H+GF”, but most would agree that you can’t agree on 95%.

    So if you don’t go by the written text when it is clear and unambiguous, how are you going to resolve the competing voices of what the “intent” was. How many people in Washington persist with an unchanging view, or even acknowledge when they have changed their view?

    In the scenario given, the law stands as it is written. The most that can be done is to suspend implimentation until it can be corrected through the legislative process, if the “overwhelming majority” agree that it is mistaken in it’s given form.

    Now, if somehow there is a typo in process and the piece of paper the President signs is different than what was passed, and we know that the President agreed with the law in the form it was passed, I’m not sure if there is a procedure already in place to deal with that. That seems more defendable as going by intent.

    If the legislature cannot compose a bill that is clear, then they have no right to vote on it, and they should all be booted out of office (at least the ones in favor of moving it along).

    From one perspective this simply reinforces a very cynical view- if you have people operating in good faith, you don’t need a written contract (except, I guess, when there are enough details they can’t be remembered), and if people are not operating in good faith, enough lawyers and money will find a way to void the contract anyway.

    People already spin enough and “twist the meaning” (or, IOW, lie through their teeth) of the written words already. You make a signed black and white law subject to the interpretation of the intent as claimed by whim any given moment what do you get? What happens if somebody else claims next week, “No, no, that’s not what we meant at all- i’m sorry I was working on “X” last week and din’t realize you guys were changing this!!”

    After my rambling, my post actually has already been summarized:

    Comment by daleyrocks: Anarchy!

    MD in Philly (ea3785)

  27. If what the legislators intended is important, then if a law was passed by a one vote margin then if two or more of those voting for the law joined with those not voting for the law and said a provision is what they meant and not what the others that voted for it meant.

    More simply, how do we know what all those voting meant except to conclude that what they meant was put into the bill? Where else are we to find an interpretation of a 1000+ page bill than in what the words in it said.

    Also if the interpretation is so much more important than the words in the bill, why was the Obamacare bill so long?

    Why did Madame Speaker tell us to wait to see what the bill contained?

    Ed Patterson (4c50ba)

  28. Is it that hard for legislators, who are well-compensated and well-staffed, to write a bill that says what it is supposed to mean?

    If they mess up, then they have to live with what they wrote until they can change it. The law is there for everyone to read and follow. You can’t expect everyone to read between lines and figure out “Well, it says X right here, but they really meant Y.”

    Forget it. The law as written is the law. I can understand that interpretation of said law can sometimes be up for debate, but Patterico’s example, 100k vice 10k, is not.

    Blogluddite (668266)

  29. #28 This actually is not an interesting hypothetical, because it deals with legislative mistake; the Legislature THOUGHT something was in the final bill but it was not not.

    The interesting hypothetical is legislation which, if interpreted according to your rules, Patterico, would bring capitalism to a halt: the Sherman Anti-Trust Act. More than one Supreme Court justice has commented that if applied according to the ordinary meaning of its words, the Sherman Act would bar successful companies from doing the things that brought them success.

    Cyrus Sanai (311cd8)

  30. We all have heard the question, “If a tree falls in the forest and there is no one to hear it, does it still make a sound?

    Well,

    If there is something in a bill that nobody reads, does it still mean anything?

    MD in Philly (ea3785)

  31. Clearly, Goldsteins view eviscerates the entire meaning of written law. It’s ridiculous on it’s face. Interpreting the hidden “meaning” of law, especially several generations old law, can only be done by reading the plain text and applying case law. If a legislator is more aware of the actual text of a piece of legislation than a different legislator, as is always the case, then whose “intent” for the law rules during interpretation? As we saw recently in the passage of ObamaCare most legislators are only circumstantially aware of what is in a law, and thier “intent” is entirely determined by their own understanding. So intent, per se, cannot be consistently and reliably determined in law passed last month much less several decades ago. His position is foolishly ignorant.

    MTF (17058c)

  32. Comment by daleyrocks — 5/5/2010 @ 7:14 am

    Goldstein’s path truly will lead to Anarchy, after transitting the tyranny of unaccountable judges.
    Is Lewis Carroll more prescient than George Orwell?

    Comment by Have Blue — 5/5/2010 @ 7:35 am

    1934 brought us the National Firearms Act (NFA-34); it was not until 1968 that the Gun Control Act (GCA-68) was imposed upon us.

    AD - RtR/OS! (5b0773)

  33. I don’t know that this either in agreement or disagreement with either Patterico or Jeff but I think rules of interpreting law cannot be the rules of grammar or rhetoric. Law has to be a special category of writing all its own self.

    nk (db4a41)

  34. In 2005, Texas approved an ostensibly anti-gay marriage amendment to their constitution. Subsection B reads:

    “This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”

    Now, of course, marriage is a legal status identical to marriage. Did Texas ban marriage inadvertently?

    I’d sure like to think so, because it’d be funny as hell. But no one in Texas seems to think so, and all their marriage laws are churning along just fine. Now maybe this isn’t “intent of the legislators” mattering, but in practice the words don’t matter, what people decide to do about them. (Though that is influenced by the words, of course).

    Aaron (b4ec19)

  35. There would be fewer questions regarding “intent”, fewer errors in bills, fewer unread bills and fewer poorly understood bills if we limit each of our legislatures to a small handful of assistants and require them to do their own work. There would be fewer bills too – a very good thing in my opinion.

    quasimodo (4af144)

  36. `When I use a word, it means just what I choose it to mean — neither more nor less.’

    Humpty Dumpty

    Curtiss (c03bd7)

  37. I’m on the textual side of things. Intent is in the mind, not in the text. Are intentionalists another variation of psychics? I don’t read minds very well, and most everybody else who claims to be able to read minds are proven to be frauds.

    The second point to be made is that the text is the result of many people who each have differing views. For example in the Telephone Consumer Protection Act, Senator Hollings wanted cases handled in small claims. The statute, however, has no such requirement. The only way we can gather the intent of everyone in congress without reading minds is to see what they actually wrote. If they didn’t write it, they didn’t intend it. Intentionalism, where an interpretation differs from the text, makes it possible for anybody to make the law what they want it to be based on picking up the intent of a specific legislator. We would have anarchy if intentions were how we decided what a law means. The agreement voted on by a legislative body is a compromise of the intents of each member of that body.

    Intent may be important in places where there is ambiguity, and one would look to the whole statute to see the overall direction the legislative bodies were going with the statute. The example of $100,000 vs $10,000 isn’t ambiguous. One would legitimately question, if congress intended one or the other, why congress didn’t write it that way. The rules of statutory construction solve that problem with the first recourse being to the plain language of the statute. One would be considered illiterate if they can’t tell the difference between $100,000 and $10,000. If it were a typo, it would have been fixed.

    Law is simplest if the people who are required to comply with it do not have to research every legislators intent to know how to follow along. If laws do not mean what they literally say, what good are they?

    Jeff (0204be)

  38. There are a number of problems here, but let me just highlight the simplest.

    […] then it doesn’t matter what words are in the statute — they mean whatever the legislators intended them to mean.

    What makes a word a word is its having been turned into a sign. Otherwise it is a mark, a scribble, something that happens to look like language in the same way certain cloud formations happen to look like fluffy bunnies (but only because we attach to them that significance).

    Thus, “words” in the statute are only words insofar as we see them as signs. The very fact that we read statutes as language presupposes that we believe we are dealing with signs. Either we believe those signs were intended by someone else and sent to us to interpret, or they are signs by virtue of our own intent to signify (which, though Corwin tries to sneer, would be precisely the case if they were marks generated by monkeys on typewriters that happened to look identical to the marks provided us by an intending agent).

    Beyond that, nowhere have I argued that a judge is compelled to “enforce” laws based on intent. What he can’t do, however, is dismiss the intent of those who wrote the law and then pretend to be interpreting the law as a speech act. And that’s because without intent presupposed, he wouldn’t be interpreting language — or else, he’d be writing his own text using the signifiers provided and claiming he has interpreted rather than simply created his own text.

    Jeff G (1600ff)

  39. I’m on the textual side of things. Intent is in the mind, not in the text. Are intentionalists another variation of psychics? I don’t read minds very well, and most everybody else who claims to be able to read minds are proven to be frauds.

    Because Mr Frey has miscast intentionalism, this is a rather predictable response.

    Intentionalism just points out how meaning is made and where it lies. By so doing, it is instructive about what it is we are doing when we interpret.

    What it doesn’t do is suggest that a failure to signal what you mean is impossible, or even unlikely. Nor does it say there aren’t consequences for failing to signal what you mean.

    Instead, it merely points out that a failure to signal what you mean is not a failure to have meant. And it further notes that a failure to signal what you mean — while it may lead people to misunderstand what you intended — does not therefore give those people linguistic permission to place the locus of YOUR meaning with THEM.

    Jeff G (1600ff)

  40. Comment by nk

    I heard a person say that law and medicine were both “conspiracies against the public” because they used a language unaccessible to the average person.

    Medicine by nature has a vocabulary that is not common to the average person, but other than that I think use of a medical dictionary and standard knowledge of English is all one would need to understand on a superficial level what a typical doctor could say.

    I don’t know if you are claiming that law has it’s own vocabulary, or that it uses different rules of grammer, rhetoric, logic, and the like.

    My understanding is that the New Testament was written in the “typical” Greek of the day, and understanding of the text is best accomplished adhering to common usage, not assuming any “special” constructs.

    Of course, included in the “typical” use of a language are colloquial sayings that do not translate well if using a word-for-word process.

    For example, in the Comment by Aaron above, it would appear that there is a need to “understand intent” to interpret the law as “intended”. I would argue that by common use of everyday English, the typical person would understand that the law was not intended to abolish marriage, but to prevent anything else from being made equal to marriage as now understood. In this situation ascertaining the “intent” of the law does not conflict with the law as written. But I would be eager to hear differing views.

    MD in Philly (ea3785)

  41. response is here.

    Jeff G (1600ff)

  42. Jeff G

    In the hypothetical given, do you indeed think the law should be enforced at over $10,000, even though the text is written $100,000?

    MD in Philly (ea3785)

  43. It may just be me, but I believe that if we replaced all of the lawyers in legislative positions with semanticists, we wouldn’t have this argument.

    AD - RtR/OS! (5b0773)

  44. nk: Suppose that Texas really did want to ban marriage and anything like it. Doesn’t the given text seem like a straightforward way to say so? I really do think this is the straightforward, common interpretation.

    Aaron (b4ec19)

  45. And by the way, what the legislature meant to do and what they did do are two different things. Courts establish meaning by what they did do, and that’s the penalty to lawmakers for making a mistake. The legislature has the power to amend it. Until they do, it’s NOT amended.

    I would say this is close. What the legislature meant and what they signaled, when filtered through convention (which we use as a helpful short hand for divining intent as it is communicated in given code in a specific context), may be at odds. And the court will look at what was signaled conventionally — because it is the convention of courts to privilege conventional usage in order to secure notice and maintain “fairness” and “justice”, two constructs that don’t speak to the linguistic issues I’m dealing with here.

    The underlying assumption here is always that what is conventionally signaled is representative of the legislature’s collective intent. Because if a judge didn’t believe what he was reviewing to be the product of some desire to mean, he’d have no reason to consider the marks before him language to begin with.

    The legislature did what they meant to do in the strictest terms of intending to mean. What they didn’t do was provide sufficient clues as to what they meant.

    Jeff G (1600ff)

  46. In the hypothetical given, do you indeed think the law should be enforced at over $10,000, even though the text is written $100,000?

    I believe that the judge can say that what the law means is poorly signaled, and therefore runs afoul of legal conventions that require notice.

    And so no, a judge wouldn’t have to enforce any such law, so long as he didn’t say that the law didn’t mean what he knows it to mean.

    Problems arise, however, when a judge says the law means what HE says it means — and attributes that meaning either to the legislature, or to a textual ontology that he pretends can exist outside of the intent required to make a text a text in the first place.

    Jeff G (1600ff)

  47. You can’t be on a “side”, the law already picked it.

    THe judge is not invested with the power to override the clear meaning of the statute.

    If lawmakers make a mistake, and it’s not inherently absurd, what they voted on and passed is the law. That included slipping a digit on a fine.

    SarahW (af7312)

  48. Where Mr Frey has some of you confused is in suggesting that intent is determinative when it comes to what people must believe a text says. But of course, this is nonsense. If you asked if I liked a movie and I really did like the movie, but I signaled that to you with a thumbs down, you’d be forgiven for believing that I didn’t like the movie, because I made a conventional mistake in my signaling what I meant.

    But ask yourself: would that mistake commit me to not liking the movie, simply because that’s all you had to go on as an indicator of what I meant?

    Linguistically speaking, I meant what I meant. I used the thumbs down sign to indicate that I liked the movie. Conventionally speaking, such a signal runs counter to what I meant.

    You, as an interpreter, are given nothing to go on but my signal. As convention is shorthand for intent, you would reasonably conclude that I didn’t like the movie. But the fact remains that you are taking my signifier — the thumbs down — which I’d used as an unconventional sign for approval, and adding your own signified to it based on conventional usage.

    In good faith you have interpreted incorrectly, because you believe I meant something by my thumbs down signal.

    If, however, you knew I liked the movie and decided that because I’d signaled that with a thumbs down, you can maintain that I must necessarily not like the movie, you are replacing my meaning with a conventional meaning in order to make my sign mean what you say it means rather than what I meant by it.

    Jeff G (1600ff)

  49. “[Intentionalism] merely points out that a failure to signal what you mean is not a failure to have meant. And it further notes that a failure to signal what you mean — while it may lead people to misunderstand what you intended — does not therefore give those people linguistic permission to place the locus of YOUR meaning with THEM.”

    – Jeff G

    Gee… when you couch it that way, it seems pretty simple – so simple that no one would bother disagreeing with, because it’s really, really obvious. Obvious enough that one wonders why it’s been dropped into a labyrinth of byzantine sophistry which seeks to treat it as a broad, behavior-governing principle rather than a quaint little maxim.

    You’re right, Jeff: a failure to signal what you mean is not a failure to have meant. But… that’s not useful. That’s not an operable principle. What do we do with that? As far as I can tell, there’s a utilitarian disconnect here. At most, “intentionalism” is the justification for allowing a speaker to clarify himself when his audience has misunderstood him. Most people don’t need a justification for that – it falls under the umbrella of “good manners.”

    Leviticus (6ffb43)

  50. Aaron, did you mistake “Comment by nk” at the top of post #40 to mean the following comment was by nk? I wonder that because nk’s last post was before yours (my post at #40 started by addressing nk’s previous comment.)

    Regarding your post at #44

    As I mentioned earlier, I see your point, but your interpretation is not the same as mine. I will give the reasons why I see it the way I do.

    The wording of the Texas law (per your quote) is may not create or recognize any legal status identical or similar to marriage

    The word “create” clearly means a new action, “may not create” means one may not do a njew action. It does not refer to negating or undoing something in the past. The word “recognize” does not clearly mean a new action, but whenever I use or hear this word I understand it to be a current/ real time event relating to another event which is current or in the past.

    I think if the state of Texas wanted to ban all marriage they would want to say something like:
    The State of Texas no longer recognizes “marriage” as a legally defined relationship. Any laws or statutes relating to marriage are now rendered meaningless and obsolete. The family law courts and divorce attorneys are left to themselves to figure out what to do with the resulting mess.

    MD in Philly (ea3785)

  51. My assessment of Goldstein’s position was related to his wholesale separation of textualism from intentionalism; it wasn’t related so much to his response to your specific hypothetical – indeed, his response to your hypothetical was in keeping with espoused philosophy.

    My larger point was that Goldstein himself acknowledges the importance of the operation of language through “signifiers” with attached meanings. So: both the text of your hypothetical bill and the documented expressions of your hypothetical legislature are signifiers of intent – but they conflict.

    No, they don’t conflict at all, linguistically speaking. They only conflict in terms of how one is likely to perceive them if they are viewed through the lens of conventional usage.

    The question, then, is not whether we privilege textual plain meaning over pure legislative intent – the question is whether we privilege one signifier of intent over another.

    Your mistake here is that you are begging the question. You assume that because the plain meaning “says” something different (you assume) from the legislature’s intent, there are two separate signifiers in play.

    But that’s not what I’m arguing. I’m saying that the legislative intent is inherent in the signifiers as presented in written from, even if it looks to be the exact opposite from the perspective of convention. Or to put it another way, I’m saying that to conceive of the text as “saying” anything at all, one has to first assume intent.

    Jeff G (1600ff)

  52. Jeff G

    > What makes a word a word is its having been turned into a sign. Otherwise it is a mark, a scribble, something that happens to look like language in the same way certain cloud formations happen to look like fluffy bunnies (but only because we attach to them that significance)

    Yes, but the listener deserves to have half a chance of understanding what is being said.

    I mean imagine if there is a law that says “it is hereby a crime to stroke fluffy bunnies northward.” Then after the law is passed, congress explains, “ah, well, you see ‘stroke’ mean to engage in interstate gambling with, “fluffy bunnies” means adults over the age of 80 and ‘northward’ means for more than $5 per bet or aggregate.” None of that is in the statute, but they all unanimously agree that this was their secret code and they have cool rings to prove it. Why the hell should we honor that?

    And for that matter, how can the power of the veto mean anything if the president doesn’t have a right to have some predictability in how the statute should be interpreted.

    Finally, again, if you think the courts are only going to faithfully execute what was intended I have some beachfront property in Kansas to sell you.

    If congress wants to assign unusual meanings to ordinary words, let them do so with a hefty definition section in the statute. And, by the way, that is actually done all the time.

    A.W. (e7d72e)

  53. Oh, bother, an intended post of mine is either lost or flagged for moderation for some reason.

    Leviticus posted on the issue I was to raise. In your language, I agree, that if the sender fails to make a clear signal that is understood as desired, it does not mean that he didn’t mean what he meant, and yes, the receiver does not get to say what the sender “really meant”. But it is also true that the sender has no reasonable claim that the receiver understand anything but what was said. To expect the receiver to understand what was meant is an absurd expectation.*

    So, it seems what one is left with at best is a misunderstanding. How a legislative body is to vote in agreement or opposition to a misunderstanding is beside me. If put before a judge to rule, it would seem prudent to simply say, “You folk need to be certain what it is you’re actually voting on before you vote on it. Besides, that is what you’re getting paid to do. The next time I see anyone in this courtroom again on something like ths I will find you in contempt of court and give you the most onerous penalty I can find, perhaps making you sit and listen to your constituents for 3 hours with your mouth taped shut!!”

    *While it cannot be expected, it often happens, as when a teacher, or President, inserts the wrong word in a sentence but we all know, “What he/she meant”.

    Not meant to be insulting, but as a non-lawyer, this kind of language makes me think of this:
    http://boop.org/jan/justso/armadil.htm

    MD in Philly (ea3785)

  54. Clearly, Goldsteins view eviscerates the entire meaning of written law. It’s ridiculous on it’s face.

    As presented here, perhaps. But that’s only because what my view is is being presented incorrectly.

    Interpreting the hidden “meaning” of law, especially several generations old law, can only be done by reading the plain text and applying case law.

    Coming up with reasons why its prudent to privilege convention for purposes of legal interpretation is not the same as making the case that a person who intends didn’t mean what he meant — nor that a piece of legislation can somehow exist outside of some intent to see it as language.

    If a legislator is more aware of the actual text of a piece of legislation than a different legislator, as is always the case, then whose “intent” for the law rules during interpretation?

    intent, per se, cannot be consistently and reliably determined in law passed last month much less several decades ago.And? Does this give us license, then, to pretend intent doesn’t exist? Or to dismiss the intent of those who wrote the law in favor of what we are able to do with the signifiers now left before us?

    His position is foolishly ignorant.

    You might try understanding my position before ruling on it.

    As it stands, you show no real understanding of what it is I’m arguing.

    Jeff G (1600ff)

  55. Yes, but the listener deserves to have half a chance of understanding what is being said.

    Where have I argued otherwise?

    I mean imagine if there is a law that says “it is hereby a crime to stroke fluffy bunnies northward.” Then after the law is passed, congress explains, “ah, well, you see ‘stroke’ mean to engage in interstate gambling with, “fluffy bunnies” means adults over the age of 80 and ‘northward’ means for more than $5 per bet or aggregate.” None of that is in the statute, but they all unanimously agree that this was their secret code and they have cool rings to prove it. Why the hell should we honor that?

    Who says we should? What is implicit in their formulation to suggest that they meant any such thing? Intentionalism doesn’t mean that everything you claim you meant must be accepted at face value. It just means that what you meant you meant. Lying about it afterward does not change what you meant, just as someone telling you you didn’t mean what you meant doesn’t change what you meant.

    if you think the courts are only going to faithfully execute what was intended I have some beachfront property in Kansas to sell you.

    So because we know they aren’t going always to execute what was intended, judges are therefore free to do away with intent altogether and just make it all up as they go along?

    If congress wants to assign unusual meanings to ordinary words, let them do so with a hefty definition section in the statute. And, by the way, that is actually done all the time.

    All you are arguing is if they want to be understood when using non-conventional meanings they’d do well to indicate that they are using words unconventionally.

    What have I written to indicate that I would have it any other way?

    Now, the obverse is that I would also tell you that just because congress didn’t stipulate what they meant in a way that was readily apparent doesn’t mean that didn’t, in fact, mean what they meant.

    Jeff G (1600ff)

  56. just because congress didn’t stipulate what they meant in a way that was readily apparent doesn’t mean that didn’t, in fact, mean what they meant.
    Comment by Jeff G

    In the specific hypothetical put forward, after the fact a number of Congressman state they meant 10,000 instead of 100,000, but the law they voted on has $100,000 in it instead.

    They might have really meant whatever it is they meant to mean, but we have no evidence of that except their current testimony. I would not trust the mere words of a Congressman if you promised to give me a trillion newly printed dollars. They always say things contrary to what they do or what we know to be true. Let them make a law that says what they mean it to say, and until then let whatever it was that they passed that they didn’t mean to pass sit in the throw-away pile.

    I imagine you either live in a house which is still partially financed, or are renting. If the holder of the mortgage or your landlord stop by today and say you need to pay an additional 50% each month. What do you say? “I didn’t mean to sign anything that gave you the power to do that?” Or will you say, “Show me where in the contract it says you can do that?” Or will you do something else? If you say, “Show me…”, he/she points to a phrase and says look right here. So you do, and it says in black and white, “This amount may not be changed by unilateral action of the landlord at any time.” You say, “It says you can’t do this”, and he says, “that is supposed to say that the amount ‘may be changed’, that’s what I meant”. That’s a pickle.

    Since when in a courtroom can a person avoid perjury by saying, “Oh, what I really meant to say is ‘X’, and you can’t hold me responsible because you believed me when I misspoke and said ‘Y'”.

    MD in Philly (ea3785)

  57. I heard a person say that law and medicine were both “conspiracies against the public” because they used a language unaccessible to the average person.

    Comment by MD in Philly — 5/5/2010 @ 10:59 am

    I meant it more in the sense of a pharmacist reading 8mMol KCL as 8Mol KCL which I believe actually happened once with disastrous results.

    nk (db4a41)

  58. Jeff G.

    > [me] Yes, but the listener deserves to have half a chance of understanding what is being said.

    > [you] Where have I argued otherwise?

    Whenever you say the intent of the speaker should control, that is the natural implication. Language does not exist solely in the mind of the speaker, but in the listener, too. A dog describes a dog because our society collectively agrees that this “thing” is a “dog.” If you suddenly start calling a reptile that blends with its environment a D-O-G, you can’t expect anyone to understand you mean that unless you take the time to explain your bizarre world definition.

    And sorry, but am I the only person who is sick and tired of people redefining words? Oh, I’m not a liberal, I’m progressive. Its not socialism, its redistribution of weath. Its not terrorism, its man-caused disasters. You’re not handicapped, you are disabled, er, I mean differently abled. As a disabled dude, it makes me want to puke.

    > It just means that what you meant you meant. Lying about it afterward…

    I didn’t say anything in my fluffy bunnies example was a lie. And in case I am not clear, let me clarify:

    > I mean imagine if there is a law that says “it is hereby a crime to stroke fluffy bunnies northward.” Then after the law is passed, congress explains, “ah, well, you see ‘stroke’ mean to engage in interstate gambling with, “fluffy bunnies” means adults over the age of 80 and ‘northward’ means for more than $5 per bet or aggregate.” None of that is in the statute, but they all unanimously agree that this was their secret code and they have cool rings to prove it [AND THE COURTS AGREE THAT THIS WAS THEIR ACTUAL INTENT]. Why the hell should we honor that?

    So once again, why should this be the way things are done?

    > So because we know they aren’t going always to execute what was intended, judges are therefore free to do away with intent altogether and just make it all up as they go along?

    Following the plain language of statutes is not making it up as you go along. The opportunity to make things up as you go along is when you say somehow that ten thousand dollars can really mean a hundred thousand dollars or vice versa. Then we get into “fluffy bunny” territory, to dip back into my intentionally absurd hypo.

    Again, seriously, why doesn’t congress just pass laws that read, “just do what you think we want”?

    I mean I seriously don’t understand your crazy notion that it is activism to adhere to what a statute says.

    > All you are arguing is if they want to be understood when using non-conventional meanings they’d do well to indicate that they are using words unconventionally.

    Close, but not quite there. What I am saying is that their non-conventional meanings should actually appear in the statute. So that everyone is on reasonable notice of them.

    But let me make a deeper point here. Are you a lawyer? Because lawyers deal with a similar issue all the time when it comes to the intent of actors accused of breaking the law and maybe this is where you are butting heads with Patterico and myself. Often the law will say that in order to commit a crime, you have to INTENTIONALLY do X. Like you have to intentionally break into a house. So I show that the defendant used a crowbar to open the door, do I have to prove that your goal was to break in? no, because it is the natural result of your actions, therefore we have a rebuttable assumption that you acted intentionally. Now there are two ways around that. one, you could show that you didn’t know it wasn’t your own house. Two, you can show that you are so batsh— that you literally don’t know what you are doing. Niether of those analogize well to legislation. Although I suspect Pelosi is batsh– crazy.

    The key thing to get is that intent in those contexts is judged objectively not subjectively. That means what an ordinary reasonably prudent person would understand, not what you subjectively and perhaps unreasonably understood. That’s how lawyers think, and it is perhaps a little different from regular folks. But there is a certain logic to it, too. I mean if you point a gun at a person and shoot, and it kills him, should you really be able to say, “sure, but I didn’t intend for it to kill him?” Well, a reasonable person would know better, and if you are too stupid to know bullets kill, well tough on you. Our criminal justice system will grind to a halt if we take that view. Likewise, people will never know when a statute might be interpreted in a crazy way wholly divorced from the text.

    And if you pass a tax law that cuts off at $100,000 then why should we think you intended to do anything else?

    And that plain language rule has another benefit. It provides some certainty and notice in enforcement. The courts regularly say that if a statute is vague it is unconstitutional, because a person deserves to know what is and is not illegal. (mind you, the courts are not as strict about that, as that implies—see, e.g. crimes against nature.) Your approach would render every statute vague.

    A.W. (e7d72e)

  59. The text, the text, the text. One of the things happening is that Patterico (and a bunch of other lawyers) have to read and understand the law, and prosecute and defend those accused of violating the law. If the meaning of the text is to be arbitrarily altered by the legislature’s intent, they face a hopeless task. I’m very much put in mind of the conversation in Through the Looking Glass, between Humpty Dumpty and Alice:

    `To be sure I was!’ Humpty Dumpty said gaily as she turned it round for him. `I thought it looked a little queer. As I was saying, that seems to be done right — though I haven’t time to look it over thoroughly just now — and that shows that there are three hundred and sixty-four days when you might get un-birthday presents –‘

    `Certainly,’ said Alice.

    `And only one for birthday presents, you know. There’s glory for you!’

    `I don’t know what you mean by “glory”,’ Alice said.

    Humpty Dumpty smiled contemptuously. `Of course you don’t — till I tell you. I meant “there’s a nice knock-down argument for you!”‘

    `But “glory” doesn’t mean “a nice knock-down argument”,’ Alice objected.

    `When I use a word,’ Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean — neither more nor less.’

    `The question is,’ said Alice, `whether you can make words mean so many different things.’

    `The question is,’ said Humpty Dumpty, `which is to be master — that’s all.’

    Alice was too much puzzled to say anything; so after a minute Humpty Dumpty began again. `They’ve a temper, some of them — particularly verbs: they’re the proudest — adjectives you can do anything with, but not verbs — however, I can manage the whole lot of them! Impenetrability! That’s what I say!’

    `Would you tell me please,’ said Alice, `what that means?’

    `Now you talk like a reasonable child,’ said Humpty Dumpty, looking very much pleased. `I meant by “impenetrability” that we’ve had enough of that subject, and it would be just as well if you’d mention what you mean to do next, as I suppose you don’t mean to stop here all the rest of your life.’

    `That’s a great deal to make one word mean,’ Alice said in a thoughtful tone.

    `When I make a word do a lot of work like that,’ said Humpty Dumpty, `I always pay it extra.’

    `Oh!’ said Alice. She was too much puzzled to make any other remark.

    `Ah, you should see ’em come round me of a Saturday night,’ Humpty Dumpty went on, wagging his head gravely from side to side, `for to get their wages, you know.’

    (Alice didn’t venture to ask what he paid them with; and so you see I can’t tell you.)

    htom (412a17)

  60. This may be too simple an observation, but isn’t it obvious that, in Goldstien’s interpretation, the citizen conscientiously following the law as written is screwed if the judge believes the legislators intended something else? How could anyone be justly prosecuted in this scenario?

    John Casteel (ffb92e)

  61. “Intentionalism doesn’t mean that everything you claim you meant must be accepted at face value. It just means that what you meant you meant.”

    – Jeff G

    Then “intentionalism” is a truism, and worth very little.

    Regarding an insufficiently communicative legislature: “The court will look at what was signaled conventionally — because it is the convention of courts to privilege conventional usage in order to secure notice and maintain “fairness” and “justice”, two constructs that don’t speak to the linguistic issues I’m dealing with here.”

    – Jeff G

    Hence, a hierarchy of signifiers. The logic is that the only way a legislature can “signal” anything meaningful is through legislative text, because legislative text is its only available language as a collective body.

    But whatever.

    Regarding Mr. Goldstein’s repeated assertions that his position has been misstated by Patterico: I think Patterico’s mistake was in framing “intentionalism” as a meaningful (and/or practical) philosophy by arguing that it had any effect whatsoever on the real world.

    Leviticus (30ac20)

  62. If that is what judges are to take into considerations when ruling on the effects or meaning of a law, how do they apportion the ‘INTENT’?

    Is it the intent of those voting in the majority for passage? If so then each of the majority’s members intent would have to be weighed to determine what they meant when they voted for passage.

    Or is it the intent of the composers of the law sans amendments? (and how is the proportion of intent to be parceled out when amendments are added into the mix?)

    How about the intent of those who voted against the law? Should their intent have some sway as to the eventual meaning of the law?

    The questions multiply until it all boils down to saying that the law means what the judge decides it means which is antithetical to the rule of law.

    Arguments pro and con about the meaning of a law founded on the position of a comma or semicolon are already in abundance (the reason for lawyers in the first place; parsing phrases written down as law) we don’t need any additional reasons for argument.

    If the legislators passed a bill with a certain wording and phrasing then that is the LAW.
    Whether they meant it as it is enforced is for them or another majority of legislators to redefine.

    A caveat to that is if there is definitive proof that an incorrect wording or phrasing (attested to by other evidence of the actual wording or phrasing meant to be present) arose from a human or machine error. Then the ‘intent’ of the legislator’s can be considered when parsing the law for it’s meaning and applicability but only until the legislators can amend the law.

    Exploration of intent when there is evidence of a change in word usage or grammar or punctuation due to the time that has passed since it’s passage (the Constitution say) is also allowable.

    Personally, I think that Judges should be allowed to send badly written/thought out laws back to the body that passed them with a critique and queries as to WTF they meant. (I think I could get a couple of judges to get on board THAT train.)

    jakee308 (a38882)

  63. btw, I paragraphed the above comment, but as you can see, none of them came through. Sorry about that.

    jakee308 (a38882)

  64. re: the above btw. when I left the comment, there were no paragraphs so I left the above btw. NOW there’s paragraphing so… NEVER MIND.

    jakee308 (a38882)

  65. jakee308 — paragraphs usually don’t show in most (all?) browsers until you do a reload. Just one of those things.

    htom (412a17)

  66. > I heard a person say that law and medicine were both “conspiracies against the public” because they used a language unaccessible to the average person

    Well, law is in some ways worse. i mean if a nurse says that she is on PRN, you are at least on notice that she used a word you don’t know and you can ask.

    And if a lawyer says res ipsa loquitur, again you have a fighting chance.

    But if i say “malice” it can be really invidious because you think you know what the word means, but it literaly means something different in the context of law. So you aren’t even given a very fair warning.

    A.W. (e7d72e)

  67. I want Patterico to remember that in the future when I say that politicians should be shot, tarred & feathered, hung from the nearest lamp-post, horse-whipped, etc,
    I don’t really mean these things, I just want to send them a sternly worded letter of disappointment.

    AD - RtR/OS! (5b0773)

  68. meant it more in the sense of a pharmacist reading 8mMol KCL as 8Mol KCL which I believe actually happened once with disastrous results.
    Comment by nk

    That’s certainly true. In the last 8-10 years there has been an effort to get rid of some commonly used abbreviations that can be easily mistaken if the handwriting is not legible, such as QD vs QID, of course, with computerized script writing the legibility should not be an issue for those who use it.

    Back to the main topic for perhaps a last moment.

    I’m not sure what hair we’re splitting and why.

    I believe both Patterico and Jeff. G. would claim that they do not want the law to be enforced according to the opinion of what a judge thinks about what the law “actually means”. (Am I correct?)

    We are given the hypothetical situation where a tax law is passed that says it applies to people making over $100,000, but after it is passed the claim is made that “we, the legislature, meant it to say over $10,000”.

    I.M. Citizen gets hauled into court because he made $75,000 last year, did not follow the new tax code, and is running against an incumbant for state senator, the state senator being of those who claim they meant the law to read over $10,000.

    If I understand the arguments correctly, Patterico would say that the law as written is clear and unambiguous in what it communicates (or “signals”, would be the term J.G. would use). He would state that the judge would have no choice but to rule that the law is to be enforced, if at all, as it is written. I would assume the reasoning would be that we hold as an accepted convention that what has been printed in the official “Book of Laws” is the accepted standard as to what the law is.

    Jeff G. is saying that if the judge “knows” that the legislature’s intent was that the law should read $10,000, then for the judge to rule any way other than against Mr. Citizen is actually to enforce not what the legislature meant, but what the judge wants it to be.

    (Correct so far?)

    Now, I agree, and I think most would agree as Leviticus above, that to say “the legislature meant what it meant, and the judge can not say otherwise” is true as it stands. Whatever it is that I mean with this post, no one can tell me that I actually meant something else. I think we would agree on this.

    But in our situation, the judge is not being asked what he thought the legislature was trying to do, or indeed meant to do, but rather to judge a given case according to the body of laws that are considered to be the definitive standard. If he/she cannot go by what is considered the authoritative standard, what is the judge to do? Is the judge to demand an edict that every printed copy of laws be recalled and a new edition put out that has a footnote that says, “*They really meant $100,000, and that is how jurisprudence is to proceed.”?

    Even though it could be argued that the judge “knows” that the intent of the law is different than written, he is not in a position or responsibility, authority, or logistical capability to say “the law isn’t written the correct way, it really means this…”. It is untenable for a situation to exist where it is held that the law should be treated as “meaning ‘X’ even though it says ‘Y’ because the legislature really meant ‘Y'” What would be the standard for determining “what the legislature meant”? Taking the sworn deposition of every individual person and then going by the majority “intent”? How do we even know the vote was meaningful if the text was different than what (some) people “meant”?

    So in the narrow view, I can see and understand one point that is made by Jeff B., but I do not see how that alone leads to the conclusion that the judge needs to rule against the law as written.

    Not being a lawyer I have no idea if what I am about to say has merit, even though it is obvious. We are guaranteed to be treated with due process under the law, yes? How can there be “due process” when there is disagreement over what the law is? The legislature should be reprimanded for dereliction of duty.

    I end where I started, just what exactly is the issue, what is the intent of this exercise? I will throw in one more wrinkle at this point. How do we judge, even for ourselves, what one “really means”? We often encounter situations where a person clearly vocalizes “X”, but their actions are not consistent with “X”. How does one judge “intent”, by what one says, or by what one does? If what one declares to be their true “intended meaning” is in conflict with observed behavior and evidence, how are we to judge?

    MD in Philly (ea3785)

  69. Well, law is in some ways worse.So you aren’t even given a very fair warning.
    Comment by A.W

    Spoken as one with intellectual honesty and integrity, I salute you.

    MD in Philly (ea3785)

  70. MD: Yes, I did mistake that.

    I can see why someone might read the amendment according to your construction. It is indeed a plausible reading. I just don’t think it is the plain-text, facial reading, and that to privilege it does indeed require looking at other indications of intent, not mere “common-sense” plain meaning.

    Aaron (e50c27)

  71. “What is the judge to do?”

    – MD in Philly

    Obviously the importance of that question pales in comparison to questions of signifiers and referents and despicable convention. After all, the legislature meant what it meant. And that’s that.

    /sarc

    Leviticus (998808)

  72. As someone who is multi-lingual I tend to see this as a broader issue of language and dialect, meaning that even though the specific words may be derived from the English language, the correct context for the meaning of the plain text can be conveyed and understood if one views the dialect as being “legalese” so to speak. Granted, this requires both the communicator and recipient to use the same standard (syntax). This is similar to a computer programming language which uses a very specific syntax to achieve a desired result. If a programmer (the legislature in this analogy) uses the wrong syntax or makes a typo, the computer (our judge), since it is not able to alter the code itself, is required to execute the code as-is.

    Onus (8b343b)

  73. Aaron, as I said before, I easily see room for different opinions.

    But I did not simply beg the issue that “common sense says ‘X'”. I gave reasons based on the use of the words in the sentence. If you want to criticize my effort and say that other things need to be looked at, then please present your case.

    Leviticus, the legislature actually only thinks they know what they meant; you should see the notes from the organizational psychology consultant!!

    MD in Philly (ea3785)

  74. Sorry, been back at my own place. Let me see if I can respond to a bit of this:

    This may be too simple an observation, but isn’t it obvious that, in Goldstien’s interpretation, the citizen conscientiously following the law as written is screwed if the judge believes the legislators intended something else?

    Yes, that is too simple an observation.

    Then “intentionalism” is a truism, and worth very little.

    Well, I keep saying intentionalism just is. But that doesn’t make it worth very little — especially when people proceed as if the truism doesn’t mean much, with the effect being that the legitimize hermeneutic procedures that are nonsensical from a linguistic perspective. It matters — at least I believe it does — whether someone is interpreting what he believes the person who created the text meant, or whether that person believes intent doesn’t matter, and so he can supply his own intent to resignify the text in his own image.

    Hence, a hierarchy of signifiers. The logic is that the only way a legislature can “signal” anything meaningful is through legislative text, because legislative text is its only available language as a collective body.

    The signifiers are the same. Choosing to say that conventional usage is determinative in legal circles is a convenient fiction. If you didn’t believe the legislature meant something, you’d have no reason to react to what they’ve sent you as if it were a text. That you do suggests you believe that you are encountering language.

    To then strip that language of its intent — and so turn it back into a set of signifiers — in order to declare that it convention tells you what it means, is to substitute the intent of those who crafted / ratified the legislation with your own intent to privilege conventional readings.

    As I noted at the outset of this discussion, in most cases, because legal convention requires that laws be written in such a way that they hew closely to conventional language, the textualist who believes he is interpreting without an appeal to intent will reach the same reading an intentionalist would. The problems arise in those instances where the law is vague. The intentionalist will then try to suss out what the legislature intended. A certain breed of textualist, having bracketed intent as either unimportant or irrecoverable, will give himself permission to determine what those marks, now bereft of the intent of some originating agency, means.

    He has discarded the original signified, reduced the sign to its sound form, and then added back on his own signified to create a new sign.

    That is not interpreting.

    Regarding Mr. Goldstein’s repeated assertions that his position has been misstated by Patterico: I think Patterico’s mistake was in framing “intentionalism” as a meaningful (and/or practical) philosophy by arguing that it had any effect whatsoever on the real world.

    If you can’t already see the real world concerns implicit in allowing readers to determine what you meant based on their understanding of conventional usage, nothing I argue will convince you otherwise.

    Jeff G (929040)

  75. There are a number of problems here, but let me just highlight the simplest.

    […] then it doesn’t matter what words are in the statute — they mean whatever the legislators intended them to mean.

    What makes a word a word is its having been turned into a sign. Otherwise it is a mark, a scribble, something that happens to look like language in the same way certain cloud formations happen to look like fluffy bunnies (but only because we attach to them that significance).

    Thus, “words” in the statute are only words insofar as we see them as signs. The very fact that we read statutes as language presupposes that we believe we are dealing with signs. Either we believe those signs were intended by someone else and sent to us to interpret, or they are signs by virtue of our own intent to signify (which, though Corwin tries to sneer, would be precisely the case if they were marks generated by monkeys on typewriters that happened to look identical to the marks provided us by an intending agent).

    It’s not clear to me why you consider this a “problem” with my analysis. I fully understand that, as you use the term “word,” it is an example of what you linguistically refer to as a “sign” which is a “mark” that has been attached to a concept by a speaker, thus forming a sign. Why does this signify a “problem” with my analysis?

    When I say “it doesn’t matter” what words are used, it is clear from context I am saying this: to an intentionalist, the particular words used to express a concept do not change the intent of the speaker. Let’s look at my “it doesn’t matter” statements in context:

    Under Goldstein’s argument, if we assume that this was the intent of the legislators who voted for ObamaCare, then it doesn’t matter what words are in the statute — they mean whatever the legislators intended them to mean. If the legislators intended the law to include a prohibition against denying coverage to children based on pre-existing conditions, then the law does contain that prohibition — no matter how the text reads.

    It wouldn’t matter that the legislators couldn’t point to specific language that a reasonable person would read as including this prohibition. It wouldn’t matter even if opponents could point to specific language that a reasonable person would read as saying the exact opposite of what the legislators’ intent was.

    As long as we assume it to be the case that every legislator intended to pass such a prohibition, then under Goldstein’s view, their intent controls.

    When I say “it doesn’t matter” what words are used, in context, I am saying exactly what you argue: that the particular words used (linguistically, you would call the words “marks”) does not determine their meaning — i.e. “it doesn’t matter” (to the meaning) what words are used. All that matters is the intent behind them.

    According to intentionalism, if a speaker chooses word “x” or word “y” or word “z” to express concept “a,” he means concept “a” regardless of whether the conventional meaning of “x” or “y” or “z” is “a” or “not a” or something entirely unrelated to “a.”

    Thus, it does not matter (to the meaning) what words are used. Sure, it might matter in terms of how well intent is signaled, but that is not what I meant there.

    Beyond that, nowhere have I argued that a judge is compelled to “enforce” laws based on intent. What he can’t do, however, is dismiss the intent of those who wrote the law and then pretend to be interpreting the law as a speech act. And that’s because without intent presupposed, he wouldn’t be interpreting language — or else, he’d be writing his own text using the signifiers provided and claiming he has interpreted rather than simply created his own text.

    I didn’t quite claim that you said a judge was “compelled” to enforce laws based on intent. I argued that you seem to believe a judge “should” do that.

    You have argued that this is not a linguistic question but rather a question of “legal convention” or “justice” or “consequences.” In other words, it’s not a question of what the legislature means, but what the judge does armed with that knowledge.

    Let’s accept that view for the sake of argument. What I argued is that, according to you, what the judge “should” do is what he believes the legislature intended:

    For a judge to say “I know what you meant by it, but I say it means something else” is to take the power of the legislature and give it to the judge. In this example, most of us might not balk.

    Me, I would. Because the argument for doing so is linguistically faulty. And I don’t want that same faulty linguistic premise – which gives power of meaning to those on the receiving end of an intended message — to gain purchase in far more likely situations than the one provided in this hypothetical.

    Statements like this are the basis of my claim that “for Goldstein, judges should always enforce laws according to legislative intent, rather than how reasonable people would interpret the text on its own.”

    I understand that you are distinguishing that from the linguistic argument (and indeed, nowhere do I claim otherwise). But, as Leviticus notes somewhere in this thread, the linguistic argument is “people mean what they mean.” What I find more interesting is: what should a judge do when armed with that knowledge?

    I read your arguments as saying that the judge should follow the legislature’s intent. In my hypothetical, I read you as arguing that the judge should interpret $100,000 as $10,000.

    Am I wrong about that?

    Patterico (c218bd)

  76. Because Mr Frey has miscast intentionalism, this is a rather predictable response.

    I definitely did not mean to miscast it. Could you explain more specifically how you think I have?

    Patterico (c218bd)

  77. “What is the judge to do?”

    – MD in Philly

    Obviously the importance of that question pales in comparison to questions of signifiers and referents and despicable convention. After all, the legislature meant what it meant. And that’s that.

    /sarc

    Yes, you’re right, Leviticus. All that formal stuff is crazy. The ends justify the means. And that’s that.

    Jeff G (929040)

  78. I believe that the judge can say that what the law means is poorly signaled, and therefore runs afoul of legal conventions that require notice.

    And so no, a judge wouldn’t have to enforce any such law, so long as he didn’t say that the law didn’t mean what he knows it to mean.

    Ah. I had not read all the comments before making my last two comments.

    It sounds like you agree that a judge, when confronted with a disparity between what the law would mean to a reasonable audience (over $100,000) and what the legislature actually mean (over $10,000) would be entitled to enforce the law in a manner consistent with the former interpretation instead of the latter — as long as he didn’t claim that the law “meant” the former.

    As I indicated in my earlier post from the weekend, the important question to me is not deciding what the judge thinks the legislature meant — but what he is to do armed with that knowledge. Should he enforce (interpret in a legal and not a linguistic sense of the word) the text according to legislative intent? Or should he enforce the law according to the interpretation that a reasonable person would give to the text? As I said in that post:

    [O]ne might grant Goldstein the argument that the legislature “meant what it meant” regardless of what it said — and so, if the debate is really about “meaning,” we might not really have any debate at all. Obviously they “meant” $10,000 and not $100,000.

    But if you’re the judge, and the wording of the law in front of your nose is $100,000, how are you going to interpret the term “$100,000″? The way it’s written? Or in accordance with what you know to be the legislators’ intent?

    Put another way: in this context, should the judge privilege an interpretation of the law that he knows is indeed at odds with what the legislature intended?

    And I think the answer here is clearly: “yes.”

    Inherent in my question is the assumption that a judge can only enforce the law as he interprets it. So if he says: yes, I understand the legislature meant x, but I am going to interpret it as y — that’s where he gets his authority to enforce it as if it says y. The question is whether such a legal interpretation could be considered legitimate.

    I’m not quite sure where you come down on that. You say that “a judge wouldn’t have to enforce any such law” but in the comment quoted earlier, you seem to suggest otherwise by saying: “For a judge to say ‘I know what you meant by it, but I say it means something else’ is to take the power of the legislature and give it to the judge. In this example, most of us might not balk. Me, I would. Because the argument for doing so is linguistically faulty.”

    Or perhaps you’re phrasing the argument differently, as if the judge were saying: “I understand the legislature meant this, but I am going to enforce it as if they said something different.” To me that is saying the same thing in different words, because to approve of that action, one has to assume the judge has legal authority to rule in such a way. And of course his only legal authority comes from his power to interpret the laws passed by the legislature; if he goes beyond that he is engaged in activism, in my view.

    This is a hastily written out comment that should be shorter and clearer because I have to get to my family. Hopefully what I am saying is halfway clear.

    Patterico (c218bd)

  79. I should point out for the benefit of some of the other commenters: Jeff’s position is NOT that we must simply accept whatever the legislature SAYS it meant. His position is that the law means what they intended it to mean, regardless of what is written on the piece of paper. To interpret that stuff written on the paper as language, his argument goes, you have to presuppose intent — and the only intent to appeal to is that of the speaker (or in the case of laws, the ratifiers).

    Patterico (c218bd)

  80. Put very simply: Jeff, do you think that a judge can ever be justified in applying a law in a way that he knows to be at odds with the legislature’s intent?

    If so: where does he get the authority to do that? Because I argue that under our system of government, a judge is authorized only to interpret, and not to write (or rewrite) laws.

    Patterico (c218bd)

  81. Rather than say a judge is entitled to write laws the way he wants them to read, I think it makes more sense to say that he is entitled to interpret laws according to their plain text and not legislative intent.

    I fully understand that intentionalism considers this an incoherent view — that intentionalism says there is no text without intent, that the only way to interpret is according to authorial intent, and so forth. This is why I raise the issue and the question. If a judge is entitled to enforce a law, but not according to what the legislature wrote, from where does he derive that authority?

    Patterico (c218bd)

  82. Inherent in my question is the assumption that a judge can only enforce the law as he interprets it. So if he says: yes, I understand the legislature meant x, but I am going to interpret it as y — that’s where he gets his authority to enforce it as if it says y. The question is whether such a legal interpretation could be considered legitimate

    Again you are confusing how language works with how legal convention works in the legal realm. That the judge would have to cite an authority at odds with the intent behind the law is a legal convention that would not exist in any other realm.

    For instance, do you remember the scene in “It’s a Wonderful Life” where the young George Bailey realizes the pharmacist has made an error and risks getting beat up to point it out to him? Regardless of the pharmacists authority, Bailey knows he is in error and isn’t intending to poison the recepient. There are any number of scenarios where following something one knows is in error (and at odds with what was intended) makes the person culpable in any harm that is a consequence of that error.

    If a doctor makes an error in recommended care and the RN knows the error wasn’t the intent of the doctor – DO YOU EXPECT THE RN TO FOLLOW THE ERROR?

    The legal convention of attempting to make law as concise as possible, including a “no tolerance” for error does, indeed, seem to preclude looking at intent in many instances. It is a tough standard and I understand it is to try and mitigate instances of mischief from legislators or judges with agendas. However, language (unlike law) allows for things like irony, sarcasm, parable, metaphor, analogy, parody…all manners of speech that demand of the receiver to know the intent of the speaker when interpreting the language AND privileging the speaker’s intent. The receiver can reject or argue against the speaker, but s/he cannot rewrite the intent and then start arguing against THAT.

    Without the speaker’s intent there is no meaning except what the receiver makes up. It’s language as a tortilla with random scorch marks that the receiver observes and shouts “It’s the face of JESUS!”

    Now, I understand that’s how the “living Constitution” folks view it, but it’s not how language works.

    Darleen Click (fe8e8e)

  83. I’m inclined to think that the judge’s authority comes from her position, and that her proper decision is to resolve ambiguity(ies) in favor of the party(ies) who are not the State or its agents (the ambiguity being introduced by the State, it cannot benefit thereby.)

    The claim that all understanding is based on intent is probably true but not conclusive (necessary but insufficient); all parties bring intent to the communication process but they bring many other undiscardable things as well, which may overwhelm all intents in their attempts to express and understand.

    htom (412a17)

  84. Again you are confusing how language works with how legal convention works in the legal realm.

    I don’t think I am. I just have a different view of how language works than you do.

    My view is that the judge is authorized only to enforce what he believes the law means. Anything else is activism.

    However, while you and Jeff believe that the law means whatever the legislature intended, I believe it means whatever the law says. I know that you believe that this is linguistically incoherent and that text cannot possibly mean something apart from the intent of the utterer. But if, like me, you don’t accept this as a fundamental premise in EVERY CONTEXT, then you leave open the possibility that the law “means” something different from what is intended by the legislature. I believe this is possible; you don’t.

    Why I think that is the subject of a future post, but as I say above: I believe that legislation is often a creature of compromise — and the compromise takes place not on the field of undisclosed “intent” but on the battleground of the text. It is the written word that necessarily embodies the meaning of a law, and if that plain meaning contravenes intent, the plain meaning must prevail.

    There are any number of scenarios where following something one knows is in error (and at odds with what was intended) makes the person culpable in any harm that is a consequence of that error.

    You appear to be arguing by analogy that the judge should not go with the erroneously written text of the law, but rather according to the intent of the speaker. My argument is that this contravenes the rule of law by failing to apprise citizens of what is required of them.

    Patterico (c218bd)

  85. 82. Darleeb Click — irony, sarcasm, parable, metaphor, analogy, parody…all manners of speech that demand of the receiver to know the intent of the speaker when interpreting the language AND privileging the speaker’s intent.

    All of these things are wonderful in their place, but in the text of the law is not one of those places. In the discussions creating that text they may be appropriate, and later — sometimes decades later — they will confound the so-called “intent” of the lawmakers.

    htom (412a17)

  86. I believe it means whatever the law says.

    Is the law the tortilla, Pat?

    Law is still written by people. That means it was intended. Now in legal convention IF you want to punish the intenders when they don’t signal their intent correctly, or when the clerk typing up the bill makes a techical error – fine. I understand both the convention and why it is necessary in the narrow realm that law resides in. But law has no meaning that someone didn’t put there – either the creator or the receiver. If the law was written precisely then the “plain meaning” clearly reflects the creators’ intent. If it contains errors, technical or negligent, and “plain meaning” means the receiver interprets the law different than what the creator intended the receiver can ignore the intent or rewrite the meaning according to the receiver’s own intent.

    There is no meaning berift of intent. If a particular law means “X” that meaning was PUT THERE either by the creator of the law or the receiver of the law. “X” cannot stand alone.

    My view is that the judge is authorized only to enforce what he believes the law means. If he “believes” something at odds with intent, then he is rewriting the law – activism. If he acknowledges the intent but believes the law doesn’t rise to the convention of being precise enough (technical error or errors of negligence or malice) he can reject the law – and he can cite as his authority that said error DOES INDEED fail to apprise citizens what is required of them, which doesn’t substitute HIS meaning for the legislatures. He can, in essense, penalize the law makers for their failure to clearly, precisely and in plain language, signal their intent.

    Darleen Click (fe8e8e)

  87. I’m going to repeat myself in saying I’m not sure what hairs we are trying to split and why. Not that Jeff G. or anyone is obligated to respond to things that I have said, but I’m left wondering if you think none of my points are worth replying to or not.

    One technique that is used to assist communication where it has broken down is to be very intentional in offering feedback. In crude form it would go like this:

    Joe: “Blah, blah, blah”.
    Jane: I’m hearing you say “blah, blah, blee”. Is that what you were saying, or meant to say?
    Joe: No, I said blah, blah, blah.
    Jane: OK, what you said was blah, blah, blah, right?
    Joe: Right
    Jane: Thanks for being patient and helping me understand. Well, I think….

    Such a dialogue can be very helpful in promoting better understanding and communication.

    A judge or practicing lawyer has no way to carry on that dialogue with a legislature. At most a judge or attorney might be able to get such a dialogue with a limited number of individuals who voted on the bill.

    When a legislature produces a law, it is their reponsibility to communicate clearly and in a predictable and understandable fashion what they mean. A judge or lawyer may have no interest in substituting “their own understanding” for the intent of the legislature, but their primary framework for determining what the law “means” is based on what it is as written.

    It may be true that the law as written and interpreted by the “reasonable person that speaks legalese” does not represent what the legislature meant or intended. But what options are there to resolve the dilemma? It is not an issue of ends justifying the means, it is an issue on what can be expected by an audience in understanding the intent of the speaker.

    If you didn’t believe the legislature meant something, you’d have no reason to react to what they’ve sent you as if it were a text. That you do suggests you believe that you are encountering language

    Maybe I don’t have the mental capacity to follow profound thinking here, but what is that supposed to mean and imply? Yes, we understand the legislature meant something. But how can one claim to understand what the legislature meant other than the bill itself, especially if it is claimed that the bill “really means” something different from a “reasonable person” approach.

    All for me, other than to repeat the link and suggest that those whose children have not gone to bed yet print it out and read it as a bedtime story.

    http://boop.org/jan/justso/armadil.htm

    MD in Philly (ea3785)

  88. htom

    I wrote:

    However, language (unlike law) allows for things like irony, sarcasm, parable, metaphor, analogy, parody

    It appears you skipped over the parenthetical.

    Darleen Click (fe8e8e)

  89. “If you can’t already see the real world concerns implicit in allowing readers to determine what you meant based on their understanding of conventional usage, nothing I argue will convince you otherwise.”

    – Jeff G

    Obviously, I see the significance of that particular concern – I’ve already addressed it, at #49. I see the significance of it, but I don’t see why the explication of such a simple point warrants its own… philosophy. Why don’t you just say “a gentleman debates in good faith”, and be done with it?

    Leviticus (30ac20)

  90. I have put a couple of borderline comments in moderation because I don’t want a good debate to degenerate due to a perception that anyone is insulting anyone.

    Patterico (c218bd)

  91. “If it contains errors, technical or negligent, and “plain meaning” means the receiver interprets the law different than what the creator intended the receiver can ignore the intent or rewrite the meaning according to the receiver’s own intent.”

    Which makes it essentially the same as any other form of communication, written laws which don’t follow the “intent”, however divined of the creator(s) have potential consequences, whether you call them errors, textualism, convention, or some other term bandied about for why intentionalism is not appropriate for this type of communication, whereas it is for others. Some of the arguments appear to make sense but some seem to be going around in complete circles.

    daleyrocks (1d0d98)

  92. If he acknowledges the intent but believes the law doesn’t rise to the convention of being precise enough (technical error or errors of negligence or malice) he can reject the law – and he can cite as his authority that said error DOES INDEED fail to apprise citizens what is required of them, which doesn’t substitute HIS meaning for the legislatures. He can, in essense, penalize the law makers for their failure to clearly, precisely and in plain language, signal their intent.

    Under what authority? What gives the judge the right to take a law, duly passed by the legislature, and void it when he knows its meaning?

    He can argue that the law fails to apprise citizens of its meaning — but if the law means what it means, and it’s the legislature’s job to write the law, what is the judge’s authority to enforce it in a way different from what the law means?

    That is, if you accept the premise (as you do and I don’t) that the law necessarily means what the legislators “intended” (as opposed to what they SAID).

    If you don’t accept that premise, the judge is simply saying the law means what it says, regardless of unexpressed intent. That, to me, seems coherent and consistent with our structure of government.

    But if you DO accept the premise that unexpressed intent governs the law’s meaning, regardless of the words used in the text, then where does the judge get his authority to enforce that law in a way different from what it means (i.e. what the intent of the legislature is)?

    Patterico (c218bd)

  93. What gives the judge the right to take a law, duly passed by the legislature, and void it when he knows its meaning?

    Pat, your own stated standard “the written law fails to apprise citizens what is required of them“. It contains a fatal flaw. Just as an RN rejects a legitimate doctor’s order if s/he knows the order is in error.

    Contrary to what Leviticus is saying, intentionalism isn’t a philosophy. It is a method of describing communication. HOW does “meaning” get from one human brain to the other?

    In most circumstances, humans can communicate in a back and forth manner until the meaning is clarified between creator and receiver to the satisfaction of both. IE I hosted Japanese exchange students for six years. They came to America in the summer specifically to hone their conversational English. The huge stumbling block at first for them is the very informal way we speak – clipped sentences, idioms, slang. I had to shift my way of speaking for at least a few weeks to be much more precise and correct in order for my student to understand what I was saying. But at no time did it shift my meaning to her. She couldn’t just “make up” a meaning for my words just because she didn’t quite understand them. My signs are my own, even if I’m not signaling correctly.

    For practicality and in protection of the mass of people the law will affect, the convention of a formal procedure of how law will be reviewed within the legal realm. That doesn’t negate how language works. Meaning comes from the creator, even if the creator fails at clearly communicating it.

    But if you DO accept the premise that unexpressed intent governs the law’s meaning, regardless of the words used in the text

    You keep referring to a descriptive process as if the description is a judgment. It is NOT. The words in the text have meaning. WHO puts that meaning there? The person/people who wrote them or the person/people who reads them? Once you honestly answer that THEN you can move onto judging whether the meaning was clearly communicated or not.

    I don’t know how we got from technical error to unexpressed intent (? what is unexpressed intent?). Certainly a judge has a lot more than the mere text of the law under consideration. As has been pointed out on JeffG’s thread, that’s what amicus curiae is for …

    Darleen Click (fe8e8e)

  94. Patterico

    i don’t know if that means my comment is only visible to me or what, but not offended by the moderation thing.

    A person choosing not to put something on their blog because it leads to unpleasant allies of discussion is one thing. When we have official censorship in Canada, and censorship by violence in South Park, Colorado, it bring to attention what is a real problem under freedom of speech.

    And i would say to anyone being moderated, if you have something to say, and Patterico won’t let you say it, create your own blog. Its cheap and easy.

    And if you happened to want to protest the suppression of South Park by threats, you might want to go here and protest: http://everyonedrawmohammed.blogspot.com/

    Yeah, i am spamming a little, but its for a good cause that i am really passionate about: freedom of speech. And hey, today we are going to cross at least one imporant milestone, maybe two. tune in at about 6 pm eastern time and you will see one milestone passed.

    A.W. (e7d72e)

  95. I put only two comments in moderation, and neither is offensive per se; A.W.’s is a “can’t you guys learn to disagree” sort of comment, and the other (unnamed) commenter’s comment was, I thought, just a touch dismissive in tone, which I fear could lead us down a counterproductive road. Both could easily be released and not even be close to problematic in any other context, and they would probably work even here — but I have worked hard to keep these threads civil and want to take every precaution in that regard.

    I encourage A.W. and the other commenter to say whatever they like and maybe even rephrase their comments. I just think questioning the point of the discussion in the abstract doesn’t help, and I want to make sure that no comment is overly dismissive in tone.

    Patterico (c218bd)

  96. The fundamental question is: accepting the intentionalist view that speakers mean what they mean, aren’t there still times when interpreters are entitled to *act* as if the speaker meant what a reasonable person would understand them to mean?

    And isn’t this more defensible when the speaker knew a reasonable person would misinterpret him in this way?

    Example:

    Seller writes: I agree to sell this diamond ring for $10,000.

    Buyer writes: I agree to buy this diamond ring for $10,000.

    Buyer pays $10,000, and seller gives buyer a lump of coal. He is a fraudster, and when he wrote “this diamond ring” he meant “this lump of coal.”

    You are the judge. Did seller agree to sell the diamond ring?

    And does it matter that seller knew that buyer would reasonably interpret “this diamond ring” as “this diamond ring”?

    My answers are “yes” and “yes.”

    What about the intentionalist?

    I’m guessing the intentionalist would say seller meant what he meant. He didn’t agree to sell the diamond ring.

    To which I say: that’s nice. Is the judge nevertheless entitled to act as if that’s what the seller intended?

    If so, then there are situations where an audience is entitled to say: “it’s wonderful that you meant what you meant. I think that’s just lovely. But I will now proceed to act just as if you meant something quite different: namely, what a reasonable person would take you to mean.”

    And that approach would be perfectly proper.

    Intentionalists? Care to weigh in?

    Patterico (128896)

  97. For everyone else: the gist of the other comment was “I’ll take a practical principle – such as the reasonable man standard – over a truistic abstraction any day of the week.”

    Leviticus (35fbde)

  98. Intentionalists? Care to weigh in?

    You might as well say “mathematicians, care to weigh in?” Intentionalism is description of a process, not a judgment of how people behave.

    Did the “diamond ring for sale” appear in the paper like the face of Jesus on a tortilla? No? Then it was written by a human and the meaning is located in the person who wrote.

    You state the person defrauded by selling a lump of coal and I agree because the conventions surrounding how sales are conducted are fairly clear (even as there still exists caveat emptor), regardless of what the creator meant.

    JeffG writes

    Where people seem to get hung up, though, is on the belief that what a law means — no matter how that meaning is expressed — is determinative for how we must interpret it. […]

    In nearly every case, the best way to ensure that your intent is read is to follow convention. And that’s because convention is a second order system “designed” to help us better divine intent. A failure to follow convention can cause all sorts of problems for receivers who, in good faith, try to decode your speech act. But what a failure to follow convention doesn’t do is change your meaning.

    Which is why when I noted in an earlier discussion that textualists and originalists who appeal to intent will most often come to the same reading of a statute, I was noting that, for the most part, what matters is what we think we are doing when we interpret, because convention — as a rule — is a highly functional guide for divining intent.

    Funny thing, if you try and say that this fraudster didn’t mean what he meant – ie strip him as the creator of the advertisment, where then is his responsibility?

    A “reasonable man standard” is but another convention … a tool as it were, in helping the receiver interpret the creator, but it still doesn’t transfer the meaning from creator to receiver.

    JeffG

    There is a difference — and it is an important one — between demanding that writers of law follow convention as closely as possible to ensure the most accurate interpretations of their intent; and maintaining that what the writer intended doesn’t matter, because convention is the locus of meaning.

    Darleen Click (fe8e8e)

  99. Darleen,

    I see you think that you are the person whose comment was put in moderation for being dismissive in tone.

    As you like to say, why didn’t you just ask me?

    If you had, I would have told you that it was Leviticus whose comment I put there. He later outed himself in comment 97, but I didn’t want to pick on him by naming him immediately.

    Amazing how people love to make assumptions. Ric Locke told everyone at PW that I had deliberately greyed out his comment box! How I would go about doing that, I have no idea. I told him as well, that next time he can just ask me.

    Patterico (c218bd)

  100. I think that if you cannot say it in two lines it was not worth saying in the the first place.

    nk (db4a41)

  101. Ditto.

    DRJ (d43dcd)


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