I promised to respond more directly to Jeff Goldstein’s latest post on intentionalism as applied to legal interpretation. This post is the promised response.
Before I get to the meat of the post, I must again take issue with his title. Goldstein continues to characterize the dichotomy as one between “originalism” and “textualism” — although I have already explained that textualists like Justice Scalia are originalists . . . they merely appeal to original understanding rather than original intent.
Having addressed the title, let me move on to the substance of the post. Perhaps, early on, I can emphasize a point of agreement where Goldstein seems to think we disagree:
But none of that is to say, as Frey contends, that “it wouldn’t matter that the legislators couldn’t point to specific language that a reasonable person would read as including this prohibition,” or that “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.” Of course it matters. Because under those conditions, you’d be hard pressed to get anyone to believe that you intended what you intended — and you have virtually no chance of having your meaning properly reconstructed. Failure to signal what you intend has consequences.
What it doesn’t do, however, is change your meaning — or allow others to tell you what that meaning is.
This is, in fact, precisely how I meant to characterize Goldstein’s position. When I said “it wouldn’t matter” what the words of the law said, in context, I meant “it wouldn’t matter to the meaning” — at least as Goldstein views it. Let’s look at what I said in its full 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 intend to be restating Goldstein’s argument — and I believe I have characterized it correctly. Namely, Goldstein argues that the particular “marks” used does not determine their meaning — i.e. “it doesn’t matter” (to the meaning) what series of squiggles appear on the paper or the computer screen. 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.
(A bit of confusion is introduced by my conventional use of the word “word,” since Goldstein uses that word to refer to what is linguistically known as a “sign,” while I use it in its conventional sense, to refer to those squiggles on your computer screen, which he would call “marks” unless and until they are imbued with meaning by the speaker. My intent should be clear from context.)
Goldstein claims that I have miscast his positions when I say:
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.
He takes issue with the above statement for the following reason:
But of course, nowhere did I argue that a judge “should always enforce laws according to legislative intent.” Instead, what I argued was that in order to claim to be interpreting the law in the first place, a judge has to appeal to the intent of those who wrote it (and so created the signs the very act of “interpreting” presupposes must exist). In Frey’s (imaginative, but frankly outlandish) hypothetical, the judge is certain that the lawmakers in question meant what they meant. The dilemma as posited, therefore, is one in which the legislature has failed to signal its intent in a way the law relies upon (and in fact, signaled something else entirely, going by the conventional standards of legal language). And the question then became how should a judge rule.
But “enforcement,” I noted, is a question not of linguistics but of justice. Constrained by the provisions of Frey’s hypothetical — the judge knows the legislators’ intent, and recognizes that they have failed to signal that intent in a way that is consonant with the conventions of legal language — for the judge to rule that the law means something other than what the legislators meant by it is for the judge to replace his intent with theirs. Or, to put it another way, he’d be replacing their text with his own, knowing full well that he is doing so — and using convention as his rationale for privileging his won intent over theirs.
This is activism. Whether it is “good” activism or not is a value judgment — not a linguistic question.
This is what I meant when I said: “Goldstein argues that there is a distinction between what a law ‘means’ and what a judge does with that knowledge.” The former is what he calls the “linguistic question.” The latter is what he calls the “value judgment” — what he has characterized in other places as a question of “justice” or “consequences.”
But I did read his post as taking a position on the value judgment — namely, that it should be in line with the linguistic interpretation. Put more simply, I had read his post to argue that a judge should enforce or apply the law consistent with what he has determined to be the proper interpretation of the law — namely, what the legislature intended, regardless of how a reasonable audience would interpret the meaning of the plain text.
If I interpreted him incorrectly, I apologize. But to show my good faith, let me quote a couple of passages that I read as arguing for enforcement consistent with what Goldstein considers the proper linguistic interpretation.
First we have this:
To ignore “legislative intent” because, as a specialized endeavor, one recognizes the difficulty in reconstructing it, it having come from a variety of (potentially) compromising forces whose individual intentions may sometimes conflict when taken separately, is to ignore where the originating locus of meaning for the law lies.
One may, alternately, choose to privilege the intent of the reader — and so privilege what s/he can do with the (now unattached) signifiers — but to do so is to place the meaning of law not with the lawmakers, but with those instead who read the law.
In other words, laws at that point are “made” by judges, because it is judges at that point who are responsible for turning signifiers into signs, and so writing the text themselves.
If you are okay with that, make it clear that you are. Me, I find that such a maneuver violates the spirit of the separation of powers.
Worse still, it plays into ideas of will to power, consensus meaning, and the inevitable de-legitimizing of the individual — for reasons I’ve outlined several times elsewhere. As a linguistic assumption, it favors progressive ideology, and is at odds with Enlightenment paradigms for establishing “truths” as something outside a mere voting interest.
He elaborated in comments:
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.
I interpreted these passages as an argument that judges should always enforce laws according to legislative intent, rather than how reasonable people would interpret the text on its own. Again, if I misapprehended what Goldstein meant, I apologize, and hasten to add that I had no intent to misstate his positions.
Perhaps I should simply ask the question, then: does Goldstein think that a judge can ever be justified in applying or enforcing a law in a way that he knows to be at odds with the legislature’s intent?
Put more generally, in the view of an intentionalist, are there times when interpreters are entitled to *act* as if the speaker meant what a reasonable person would understand them to mean — and consequently, to *act* in a way that consciously disregards what the speaker actually meant?
Future posts will explore this issue in more depth.
P.S. My usual rule for intentionalism posts applies here. No personal attacks whatsoever.