[Guest post by DRJ]

Via the Instapundit, NBC says President Obama’s Supreme Court nominee will be Elena Kagan.

— DRJ

[Guest post by DRJ]

Attorney General Eric H. Holder, Jr., believes Congress should consider legislating a terrorism exception to Miranda:

“Attorney General Eric Holder said that Congress should “give serious consideration” to updating the Miranda warning which requires law enforcement officials to inform suspects of their rights – including the right to remain silent.

In an interview on “This Week,” Holder said that the U.S. needs to exam whether the current rules regarding Miranda warnings give law enforcement agents the “necessary flexibility” when dealing with terrorism cases.

“If we are going to have a system that is capable of dealing, in a public safety context, with this new threat,” Holder said, “I think we have to give serious consideration to at least modifying that public safety exception” of Miranda warnings, which allows law enforcement agents to ask suspects about impending threats before reading them their rights.”

Surprised? I’m not.

— DRJ

[Guest post by DRJ]

— DRJ

[Guest post by DRJ]

Happy Mother’s Day to mothers everywhere and to every mother’s child.

— DRJ

[Guest post by DRJ]

Speaking today at Hampton University in Virginia, President Obama warned young people against getting information from blogs and talk radio in our 24/7 media environment:

“You’re coming of age in a 24/7 media environment that bombards us with all kinds of content and exposes us to all kinds of arguments, some of which don’t always rank all that high on the truth meter,” Obama said at Hampton University, Virginia.

“With iPods and iPads and Xboxes and PlayStations, — none of which I know how to work — information becomes a distraction, a diversion, a form of entertainment, rather than a tool of empowerment, rather than the means of emancipation,” Obama said.

He bemoaned the fact that “some of the craziest claims can quickly claim traction,” in the clamor of certain blogs and talk radio outlets.

“All of this is not only putting new pressures on you, it is putting new pressures on our country and on our democracy.”

It almost sounds like the President is telling graduates to enjoy entertainment, get serious about mainstream information sources, and avoid straining democracy by listening to too many voices at places like blogs and talk radio. In other words, “emancipate” yourself from too much information.

Perhaps the President simply means people should be skeptical about what they listen to and believe, and I agree that’s a good thing. But he seems to be saying people should avoid listening to specific voices, and that’s not good.

Here’s my advice: “Congratulations on obtaining your college degree. For most of you, your diploma represents years of hard work. Celebrate your accomplishments while remembering you will never be finished learning. Fortunately, our 24/7 media environment makes it easier than ever for people to get information to make informed decisions. From now on, your job is to read and learn about the issues from as many sources as possible, and then think critically about everything you read and hear.”

— DRJ

In my posts on intentionalism and legal interpretation, I have tried to make this point: sometimes the speaker’s intent is irrelevant to the practical problem of what to do with his words. I ran across an example that makes my point perfectly — and the example comes straight from intentionalist Jeff Goldstein:

[T]o bring back my irony example, it is always possible in theory that a text is presented completely ironically, such that [its] author means precisely the opposite of what conventions tell us the text says. An interesting example would be, say, the instructions for putting together an IKEA bookshelf. If, after you read and interpret, you have a perfectly put together bookshelf, you will (naturally) assume you have gauged the manual writer’s intent correctly and so interpreted his instructions perfectly. That is, you have understood precisely what he meant.

But imagine that the manual writer was being ironic, and every sign actually meant — to him — its opposite. You will have interpreted what he wrote in good faith — assuming that he was using the conventions of language and context (convention tells you that rarely are shelving manuals written in anything other than straightforward, simple language), and the fact that you came away with the shelf, which you assumed to be the purpose of the manual, would further convince you that you’d interpreted properly.

But of course, in reality — from a linguistic perspective — though you followed all the rules for interpretation (you assumed what you were reading was language, and so intended; you paid attention to convention, both for plain meaning of terms and for the general purpose of manuals of the type you were engaging; you ‘checked your work’ at each stage by seeming to match the manual’s directions with your results, etc), you interpreted incorrectly: the manual writer meant what he meant.

Now, you have no way of knowing this, most likely; and the fact that you got what you want out of the engagement with the manual leaves you content. But in this (highly unusual) instance, the fact is, though you’ve done everything correctly as an interpreter, you didn’t correctly interpret what the manual writer meant.

To which my response is: as a practical matter, who cares? In this example, I didn’t read the manual with the intent of determining the writer’s true intent. I read the manual with the intent of solving a problem — namely, putting together a bookshelf.

There are times when I read a text and my paramount goal is to decide what the writer meant. But there are other times — and the bookshelf example is a perfect example — when I don’t particularly care what the writer meant, if it doesn’t help me accomplish my goal. In this sense, what the writer meant doesn’t really matter to my goal.

If you tell me in advance that the instructions are ironic — but that reading them conventionally will get me my bookshelf — I am going to interpret them according to convention and not according to the ironic intent. And I am perfectly justified in doing so. By doing this, I am not concluding that the speaker’s intent is other than it was. I am saying: I understand that the speaker’s intent here is unconventional. But I don’t care. I am going to interpret the instructions the way a reasonable person would, because I want a bookshelf, not a literary/linguistic interpretation.

Goldstein acknowledges much of what I am saying in his post. He admits that the “misinterpretation” (following the instructions as written) is useful — and, he acknowledges, any breakdown in communication in this example is the writer’s fault, for failing to signal his intent properly. He even hints at my ultimate point in the following passage. The part I find important, I am placing in bold text:

[A]gain, 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.

I think the key passage here is this: “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.” My point is this: there is indeed a sense in which “what the writer intended didn’t much matter in the end” — and that is in the practical sense of what to do with the instructions. And I would argue that what Goldstein calls a “wrong but useful” interpretation is so only in the linguistic sense. In the practical sense, the interpretation was actually the correct one. Because if you know that the “correct” linguistic interpretation won’t get you your bookshelf, and the “incorrect” but conventional reading will, then you should choose the conventional interpretation that will help you accomplish your practical goal.

In other words, while it’s a nice intellectual exercise to know the writer’s meaning, there are times when knowing that meaning just doesn’t matter to the practical question of how you are going to treat (or, in the legal sense, enforce) his words. This is what, I think, Goldstein misses in his conclusion:

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.

While this statement is correct, it misses the point that I have been trying to make over the last several days. Yes, we should demand that writers of law express themselves clearly. Yes, that is different from claiming that convention is the locus of meaning, in the sense of what the speaker intended.

But judges are still entitled to say that “what the writer intended doesn’t matter” to the practical question of how the speaker’s words should be enforced. There is a difference — and it is an important one — between a) maintaining that what the writer intended doesn’t matter, because convention is the locus of meaning; and b) maintaining that what the writer intended doesn’t matter to how a judge will legally interpret (i.e. enforce) the writer’s words — not because convention is the locus of meaning, but because the “meaning” doesn’t necessarily matter to the practical question of what the judge is going to do with the writer’s words.

In other words, the best legal interpretation of wording is often the conventional one — even when you know it is at odds with the correct linguistic interpretation of what the writer actually intended to say.

Similarly, in my crazy and outlandish hypo where a seller tries to defraud a buyer (a situation that never arises in real life, since fraud does not exist on the planet Earth), the seller’s private, linguistically correct interpretation of the phrase “a diamond ring” might be “a lump of coal” or a “cubic zirconia ring” — but the judge is entitled to reject the linguistically correct interpretation when it comes to enforcement, and choose the conventional interpretation as the basis for his ruling.

Central to all of this is the concept that enforcing the conventional interpretation is generally more understandable and defensible when the speaker knew that reasonable listeners would interpret his words according to convention, and he gave no clues that his private intention was unconventional. The IKEA instruction manual writer knew that nobody would take his instructions ironically. The dishonest seller knew that the buyer thought he was buying a real diamond ring. If a legislature that says one thing but means another, the lawmakers know they may be misinterpreted. Because these speakers know that a reasonable audience will misinterpret them, we don’t feel sorry for them when a judge enforces the plain meaning (the conventional meaning, to the intentionalist) of the words instead of their private, undisclosed, “correct” meaning.

When Justice Scalia says: “I don’t care what the legislature meant; I just want to know what they said,” he is like the IKEA bookshelf builder who doesn’t care whether the instructions are ironic — he just wants to know whether they will work. He is worried with real life and not theory.

As he should be.

P.S. The usual rules for intentionalism posts apply. I require a heightened state of civility and no personal attacks. Given these rules, banned commenters may comment.

UPDATE 12:40 p.m. Pacific: I have tweaked a sentence or two for clarity’s sake.

[Guest post by DRJ]

Attorney General Eric H. Holder, Jr., has acknowledged the New York City car bomber was a terrorist directed and funded by the Taliban and was not a lone wolf:

“The Pakistani Taliban directed and likely funded Times Square bombing suspect Faisal Shahzad, Attorney General Eric H. Holder Jr. said Sunday.

“The Pakistani Taliban directed this plot,” Mr. Holder said on NBC’s “Meet the Press.”

Mr. Holder told host David Gregory that he suspected early on that Mr. Shahzad had acted alone but that information uncovered since had made it clear that Mr. Shahzad was part of a larger plot. “

Nevertheless, the Administration’s counterterrorism adviser says the system worked:

“Mr. Brennan said the May 3 arrest of Mr. Shahzad, a Pakistan-born naturalized U.S. citizen accused of parking an explosives-laden sport utility vehicle in New York’s Times Square two days earlier, showed that the nation’s security measures work.

“The system was able to put the information out, and we were able to take action,” Mr. Brennan said.”

It worked, but only if your idea of working is catching suspects after-the-fact. There was a time when the government’s goal was to stop terrorists. Now its goal is to catch terrorists after they attack us.

— DRJ

UPDATE — The AP reports that Secretary of State Hillary Clinton is talking tough to Pakistan in the Administration’s first public statement following a suspected U.S. missile-strike that killed 10 people on the Afghan border:

“U.S. Secretary of State Hillary Rodham Clinton said Washington expects more cooperation from Pakistan in fighting terrorism and warned of “severe consequences” if an attack on U.S. soil were traced back to the South Asian country.

Her comments mark something of a change in America’s public stance toward Pakistan, which in recent months has been characterized by praise, not criticism. She made the remarks in an interview with CBS television’s “60 Minutes” that were to be broadcast later Sunday.”

Does “severe consequences” mean do what we tell you or we’ll attack? Or does it mean we’ll impose sanctions and cut funding? It’s hard to believe Obama would do either, but he doesn’t have to convince me he means what Hillary says. He has to convince the Pakistanis.

— DRJ

[Guest post by DRJ]

Obama — Health care benefits beginning:

“The most critical and controversial parts of the recently passed health care reform bill won’t take effect for more than three and half years, but President Barack Obama wants Americans to know that the historic legislation is already spurring positive changes in the insurance business.

“While it will take some time to fully implement this law, reform is already delivering real benefits to millions of Americans,” Obama said in his weekly radio and video address out Saturday morning. “Already, we are seeing a health care system that holds insurance companies more accountable and gives consumers more control.”

AT&T (via Doug Ross) — Health care benefits ending?:

“Someone inside AT&T leaked an internal Powerpoint presentation that measured the financial impact of DemCare.

AT&T estimates that it can save upwards of $4 billion annually by dropping health care coverage and paying the penalty tax instead.

They’d be foolish to keep their health care benefits and, in fact, shareholders should demand the company capture that income and return it in the form of increased dividends and R&D.”

The Administration may have its thumb on the insurance companies but it can’t control those Unintended Consequences.

— DRJ