Patterico's Pontifications

5/6/2010

Still More on Textualism vs. Intentionalism

Filed under: General — Patterico @ 6:53 pm



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.

14 Responses to “Still More on Textualism vs. Intentionalism”

  1. Quite chuffed to see this discussion continuing. There’s some good, meaty points being made on both sides. I do doubt that we’re going to come to a simple resolution, however.

    You lads are operating in different universes here, kind of reminds me of your straight physicist and your quantum physicist. At least reading the posts and noodling around the embedded concepts keeps me out of the bars.

    For a little bit. Anywho … hope this continues.

    Uncle Pinky (22f482)

  2. I don’t think this post is that interesting, frankly, but I wanted to clarify a couple of points. I do have a couple more coming that I hope will be more thought-provoking.

    Patterico (096279)

  3. I’m glad you have a couple more coming. As a non-lawyer I find the discussion fascinating. I find I must agree with you, Patterico. If society is going to be able to have laws that mean something to the layman those laws must mean what they say even in the event of legislative errors. It is up to the legislators and executives to effect the rectification of errors. It is not up to judges.

    As a “reasonable person” trying to conduct day to day business the law is unpredictable, opaque, and frankly frightening in its modern complexity. If the law is no longer that which is written down then how can I plan to conduct my business if the law says I must not sell any Widgetiferous Wonders to underaged persons when a judge may come along and declare I should have sold them and can be prosecuted for not doing so?

    I do not necessarily like all the dark corners this takes me. But, they are dark corners that have a chance of being predictable. To wander into my field the legislators are writing the software which society runs, they’re the software designers and coders. The society is the machine which runs the code. And the courts are the exception handlers the machines call when something goes wrong. If the exception handler discovers a defect in the code it’s job is to keep the machine running so that the software designers and coders can examine the crash and correct the code. It is at best a loose analogy. It does help me think about the situation. If the exception handler comes in and says that sometimes a given instruction “word” means add two registers and sometimes it means subtract two registers you have a useless “Do What I Mean” machine. What does it do when it runs somebody else’s code if it is doing what I mean instead of what I say.

    One of the immediate things that came to mind as I read that and thought back on Judge Napolitano’s discussion of the same issue some weeks ago the obvious question came to mind. Do the words mean what they meant when a bill is drafted or what they mean today? The analogy above breaks down. You don’t have the kind of linguistic drift that “seems” to have taken place in some minds with regards to the legal understanding of the second amendment to the Constitution. It seems to me that the language in use at the time a law is passed and signed into law should be used in its application. If this breaks down then the law, or amendment to the Constitution, must be repaired either prospectively before the “crash” or after the defect has been revealed.

    As a non-lawyer I find your exposition fascinating and informative. Thank you.

    {^_^}

    JD (9ac83d)

  4. Believe it or not that had paragraphs at one time. SIGH

    {o.o}

    JD (9ac83d)

  5. This is not the usual JD.

    Patterico (c218bd)

  6. I think that’s obvious anyway, from the writing style, but I wanted to confirm it.

    Patterico (c218bd)

  7. Here’s Stanley Fish on textualism.

    I had a chat with a steamed dumpling about this, and noted at the time that Fish was being cagey, because Scalia — while claiming not to care about intention — of course does just that. So the problem is with Scalia’s misunderstanding of his own method.

    I would say the same for you all, except that you really do seem eager to want to take the power to mean away from the individual and hand it over to the group by way of convention — and pretend that what you are doing is “interpreting” a communication, for purposes of enactment, that you know was intended.

    There’s not really much more to say on the matter, really.

    Jeff G (929040)

  8. Apologize for the double post. Your site is timing out on me consistently.

    Not sure if you saw the follow-up post I put up yesterday morning, but it seems to me I’d already anticipated the questions raised here. Let me quote the applicable section:

    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.

    But again, the man putting together the shelving would have virtually no way of knowing that he was interpreting incorrectly. And that’s because the writer subverted a number of conventions, provided no ironic or parodic cues, was unnamed (and so made intertextual considerations impossible), and — most importantly to the man who bought the shelves — what the writer intended didn’t much matter in the end because the man got his shelving. And so even though his interpretation was wrong, it was still useful.

    More, had the original author really wanted his intentions known, he would have been more careful in signaling them. 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.

    But what convention isn’t is the locus of meaning. Because to say that is to say that, regardless of what a person meant when he crafted a communication he desired to have interpreted, his meaning rests with the way signifiers are most typically signified. That is, his meaning rests with convention — or general group usage of signifiers — and not with his own desire to express meaning.

    And this is not only wrong but dangerous. First, if meaning did rest with convention, convention would remain static. How could convention change, after all, if it prevented any meaning-making to exist outside of its own parameters for determining meaning?

    Second, by taking meaning away from the intentional actor and giving it over to convention, you are taking meaning away from the individual and giving it over to the consensus of a community or culture (convention being nothing more than that consensus meaning spread out and institutionalized). In that way, you are allowing a community or culture to determine what it is an individual means — and so taking away that individual’s autonomy and demanding he surrender his own will to group generalizations.

    None of which is a repudiation of intentionalism. Instead, it is nothing more than a transfer of whose intent is privileged disguised as a bracketing of intent.

    Because to say that the author doesn’t mean what he meant — that what his “plain text” means is what “convention” tells us it means — is to say that our intent to privilege group generalizations about signification trumps your ability to signify. Or, to put it more bluntly, our intent to attach to your signifiers what we as a group want to see there supplants your intent to signify as you have.

    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.

    Scalia and others push for the latter in order to get the former. But in doing so, they open up avenues that legitimize an idea of “interpretation” that is not interpretation at all.

    To look at someone’s intended text — his signs — and try to decode them as part of a speech act is to interpret. To look at someone’s signs, remove the intent that turned them into signs in the first place, and then react to signifiers, which you then resignify solely based on convention, is to write your own signs — to create your own text.

    And at that point, it is your intent that you have privileged, and your meaning that is the endproduct of what you have called “interpretation,” but which is no such thing.

    My argument is, how you get there matters. To privilege your own intent is to rob others of their meaning. And the consequences of such a maneuver are far reaching, and go to the heart of the will to power / consensus meaning paradigm I’ve been at pains to dissect here over the years.

    Jeff G (929040)

  9. “I would say the same for you all, except that you really do seem eager to want to take the power to mean away from the individual and hand it over to the group by way of convention — and pretend that what you are doing is “interpreting” a communication, for purposes of enactment, that you know was intended.”

    – Jeff G

    The difference is that we acknowledge the role of a reasonable listener in interpretation, and you do not. You treat language like a little kid playing with Legos in his room: the only important thing is attaching one thing to another with some purpose – no matter how inscrutable – in mind. It doesn’t matter whether anyone else can tell what the hell the little kid made – the important thing is that the kid himself knows. After all, he meant what he meant.

    That’s all well and good when it comes to Legos, but it’s not an advisable standard for serious communication.

    Leviticus (f0f166)

  10. I don’t think that’s what Jeff is saying, but there is still no escaping that language is entirely conventional and arbitrary. The word “fire” is not hot and smoky and the word “water” will not quench your thirst. So I think the intentionalist does operate within the bounds of convention.

    As ideas become more complex, there is more room for misunderstanding so intentionalism comes into play. But going back to convention, MD in Philly and I already discussed how important both parties having the exact literal meaning of words is important in medicine. And I think we can find many other areas as well.

    nk (db4a41)

  11. exact *same* literal meaning

    nk (db4a41)

  12. In law, one example. In First Amendment cases, the statue does not get the benefit of the doubt. It is construed strictly with a presumed intent — that the legislature did not intend to restrict First Amendment rights.

    There are other examples. Generally, instances in which the statutes depart from the common law. Or where the result is recognizedly oppressive and onerous, such as suits against municipalities or health care providers, but the legislature made it crystal clear that it intended to be that mean.

    nk (db4a41)

  13. *mean* = *restrictive*

    nk (db4a41)

  14. “The word “fire” is not hot and smoky and the word “water” will not quench your thirst. So I think the intentionalist does operate within the bounds of convention.”

    – nk

    I guess that’s a better way to say it. “Language”, as practically (rather than academically) understood, requires a commonality of understanding amongst multiple parties: this word means this, that word means that, etc. To an extent (a large extent) the meanings of words are fleshed out by communities over long periods of time; a word without a community to initially agree to its meaning is just a sound. So intentionalists operate within the bounds of convention like everyone else.

    I can understand and appreciate the intentionalists’ insistence on the speaker’s control of his own meaning, and their warnings of the danger of allowing unscrupulous characters to hijack the language of others for their own purposes; still, I think that the applicability of the philosophy/reality/whatever of intentionalism is of limited use.

    Leviticus (f0f166)


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