Patterico's Pontifications

5/9/2010

Jeff Goldstein Makes My Point About Intentionalism and Legal Interpretation

Filed under: General — Patterico @ 11:04 am

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.

Comments (77)

77 Responses to “Jeff Goldstein Makes My Point About Intentionalism and Legal Interpretation”

(I made this comment late to the “election contest” post, but it fits better here)

I’m wading in late, and certainly not in depth–and the waters are deep on this one–but I do believe that one cannot discuss the topic without distinguishing public and private discourse from law-making. The student who calls the loud female students outside his window “water buffalos” is not a racist because THEY view the expression as racist. But with statutes, rules are being created that govern everyone’s conduct, and the lawgiver must be governed by rules of expression so that, as near as possible, everyone can know what the rules are. So I think Scalia’s “objectified intent” is correct. I think many states have rules of construction for statutes that go something like this: “All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.” So if the legislature provides that the speed limit is 35, and a majority of members sign a document saying “we meant 30,” the speed limit is still 35 (and rather than signing a document, they should just amend the statute–which is, of course, what would actually happen, if anything). If we are to conform our conduct to rules, we have to look at the words used in their ordinary sense, unless a special or technical meaning has been acquired, and the lawgiver (the legislature) knows that going in.

Be good to your mother’s today! (and every day).
tbaugh (db98d6) — 5/9/2010 @ 11:12 am
As I mentioned in another thread, the whole intentionalism thing may make sense when the text is a medium for communicating an idea.

But when the text is functional, like a statute, intentionalism is completely meaningless. It works or it doesn’t and the “intent” of the creator is meaningless.
SPQR (26be8b) — 5/9/2010 @ 11:27 am
What SPQR said.
nk (db4a41) — 5/9/2010 @ 11:28 am
I think that’s right, tbaugh.

I am sidestepping in this post the debate over whether a text can have a meaning apart from the intent of the speaker. That, of course, is what Goldstein is most fundamentally concerned with — and I am, I admit, not 100% convinced that there is no “plain meaning” of a text apart from intent.

However, I am willing to concede that point for the sake of argument, to make the point that I make in this post. I will be satisfied if I can get the intentionalists to agree that, despite one’s intent, a receiver of text is sometimes entitled to enforce the text in a manner that is a) at odds with the speaker’s true intent, and b) consistent with the conventional meaning (what I call the most reasonable interpretation of the text).

That’s just me being practical. I’ll concede on the theoretical issue (on which Goldstein may very well be right) to gain the concession on the practical issue (because without that concession, a number of real-world problems become, in my view, unsolvable).

I think my questions expose a limitation in the usefulness of the intentionalism concept. Namely, if a receiver of communication is sometimes entitled to listen to a communication, understand its intent, and then proceed to ignore it in favor of a conventional interpretation, for purposes of deciding the actions he is going to take in legally enforcing (or otherwise giving practical effect to) the text (as opposed to his linguistic interpretation, which must necessarily seek out intent, according to the intentionalists), then intentionalism doesn’t always provide the speaker with a defense against having his words used differently than he intended. It may provide a defense against his being misinterpreted, but if the received is justified in correctly interpreting and then taking action baseed on a different interpretation, then intentionalism is (in these situations) helpful more to theory than it is to practical decisionmaking. Which is a limitation.

But it doesn’t mean the concept has no value.
Patterico (c218bd) — 5/9/2010 @ 11:41 am
There’s really not much more to say here than this: you write (and bold) “sometimes the speaker’s intent is irrelevant to the practical problem of what to do with his words.”

Question: what is it that makes the words “his,” and on what basis are you deciding to do things with his words that aren’t in keeping with his intent: he hasn’t signaled his intent in a way that’s clear (and so, though you try to divine his intent and are clearly appealing to said intent to try to interpret what he meant, you are unable to do so, because he hasn’t left you the appropriate cues)? Or you have decided that his intent is irrelevant, that his “text” can have its intent removed, the meaning of it decided upon by you, and yet you still claim the text is his, and that it is his meaning you are deciding upon?

In both instances, you are an intentionalist. But in the first instance you are interpreting; in the second you are giving yourself permission to replace his intent with your own and rule on it.
Jeff G (929040) — 5/9/2010 @ 11:49 am
But when the text is functional, like a statute, intentionalism is completely meaningless.

Okay. We’ve waded through Frey’s countless loaded hypotheticals, and I’ve engaged each one.

Now it is my turn for all of you who continue to say such (frankly, unbelievable) things like “intentionalism is meaningless.”

There is nothing but. You cannot interpret — much less engage language — without appealing to or providing intent.

So. For you textualists out there who think that “intention is meaningless,” describe how convention is the ground for meaning. Explain how a “text” comes to count as a text. Explain how the “plain meaning of a text” exists apart from intent.

As to this post, I will once again reiterate:

To say, therefore, “I know what you meant, but what you meant is signaled in such a way that it couldn’t possibly be interpreted as consonant with your intent unless the buyer also knew beforehand what you meant — at which point presumably he wouldn’t have entered into the contract” is different from saying “I know what you meant, but what you meant doesn’t matter, because convention says you meant something else, and your intentions are irrelevant when it comes to determining what you meant.”

In fact, in the first instance, you are holding the original intending agency responsible for failing to signal his intent — while allowing that he means what he means; in the second instance — the one supported by the theory of textualism (if not always in practice) — you are telling the original agency that what he meant or didn’t mean is not important, because consensus (as determined by convention) will tell you what you meant.

At which point all you’ve done is strip the original text of its meaning, turned it into a set of signifiers, and then, by your own act of intending, attached to that set of signifiers the signifieds you prefer, taken from the realm of “convention.”

Or, to put it another way, you have ascribed your own will to the marks in order to make them mean — and you have done so at the expense of the signs you were originally asked to interpret. The result being that you haven’t “interpreted” at all. You’ve merely rewritten — and so created an entirely new text.

And ruling in favor of the text you created is hardly the kind of dispassionate functionality one expects from a judge.

Or, to put it into terms you all are more comfortable with, let me put it this way:

When Frey asks (based on a hypothetical that posits a judge who knows the actual intent) “does a failure on the part of the utterer to signal intent allow the judge to interpret the text as a reasonable man, without consideration of intent, might?” and goes by that standard, the flaw is in the question as phrased. Were he to ask “can a reasonable man be expected to know the author’s intent from what’s been signaled?” he is asking a different question, and basing his reasoning for ruling a particular way on a different standard: to wit, he isn’t ruling that because intent is unknowable, we can dismiss intent and rule on the basis of convention; instead he is ruling that because intent wasn’t signaled, a reasonable man couldn’t possibly reconstruct the intent.

A distinction with a big difference. Discuss among yourselves.
Jeff G (929040) — 5/9/2010 @ 12:00 pm
It seems to me that the intentionalists have the priority system of understanding how language functions in everyday life reversed based on these posts. That’s because convention is a first order system “designed” to help us better divine intent. If a contract, vote or piece of legislation is unclear, then and only then is it necessary to look beyond the actual speech for further hints of meaning or intent. A failure to follow convention in practical situations 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.
daleyrocks (1d0d98) — 5/9/2010 @ 12:04 pm
Question: what is it that makes the words “his,” and on what basis are you deciding to do things with his words that aren’t in keeping with his intent: he hasn’t signaled his intent in a way that’s clear (and so, though you try to divine his intent and are clearly appealing to said intent to try to interpret what he meant, you are unable to do so, because he hasn’t left you the appropriate cues)? Or you have decided that his intent is irrelevant, that his “text” can have its intent removed, the meaning of it decided upon by you, and yet you still claim the text is his, and that it is his meaning you are deciding upon?

Closer to the second, but not quite the second.

Accepting (for the sake of argument) the intentionalist view that words mean what the speaker intends them to mean, here is what we’re saying, in my view:

The speaker hasn’t signaled his intent in a way that’s clear. However, he has worded his statement in a way that is clear when interpreted according to convention — and, what’s more, he knows that. And so, although we may try to divine his intent, and are clearly appealing to said intent to try to interpret what he meant, we ultimately don’t care what that intent was when it comes to enforcing his words. In other words, his intent is irrelevant — not to the interpretive question of what he meant, but to the practical question of how to enforce the text. In that latter sense, but not in the former sense, his “text” can have its intent removed, the meaning of it decided upon by the judge according to convention.

The judge will still claim that the “text” is the speaker’s — using the conventional (and not the intentionalist’s) interpretation of the word “text” — namely, the stuff that is written on the paper. After all, the speaker is the one who chose to write that stuff there, so the squiggles he made on the page are “his.” But the judge will not claim that that it is the author’s meaning that he is deciding upon for purposes of determining how to enforce the text. The judge will say that the author’s meaning does not necessarily have any relevance to that question; rather, the conventional meaning will govern the enforcement in some situations, such as those I have discussed over the past few days.

(When I talk about “legal interpretation” I am talking about this practical issue of enforcement, rather than the intentionalist definition of the word “interpretation,” which always refers to the speaker’s intent.)

If we don’t follow this approach, then fraudulent sellers get away with their fraud. Bookshelves don’t get built. Citizens are prosecuted for things they can’t have known were against the law. And so forth.
Patterico (c218bd) — 5/9/2010 @ 12:07 pm
I have given examples of intentionalism being irrelevant. Like First Amendment cases, where an irrebuttably presumed intent is applied. And some other areas of the law. And, with MD in Philly, in medicine where it is vital that both parties have the exact same literal meaning of a communication.

And I will be the first to agree that some speech is evocative. And some is connotative. And some is denotative. And being somewhat multilingual, that some languages are better at one thing than others.
nk (db4a41) — 5/9/2010 @ 12:08 pm
One last thing: Patrick, you ask, “as a practical matter, who cares?”

This goes to the heart of the problem: you can come up with the right reading by not appealing to intent at all; and those who appeal to intent could be entirely wrong.

But how you get there matters, because if you institutionalize a rule based on the fact that it once proved effective — even though you know that rule is based on faulty logic — it will matter in situations where the outcome isn’t based on the variables in a (completely unlikely) hypothetical.

So I care. And you should to. Because what you’re advocating is that, so long as you get where you wanted to go, it doesn’t matter how you got there.

The ends justify the means.

Hardly the position most conservatives want to take, I should think.
Jeff G (929040) — 5/9/2010 @ 12:09 pm
Okay. We’ve waded through Frey’s countless loaded hypotheticals, and I’ve engaged each one.

The point of this post is to make my point in a way that uses your hypothetical and not mine.

If it makes you happy, forget I ever posed those crazy outlandish unrealistic hypotheticals where a con artist commits fraud. Such scenarios are clearly unrealistic, since fraud never happens in the real world.

Instead of using my crazy unrealistic hypos, we will instead go with yours, in which a bookshelf instruction writer sets forth a series of instructions on how to build a bookshelf, but doesn’t actually mean them the way they would conventionally be read, even though the conventional reading works.

That’s why I wrote the post: to take the focus off of the complaints that my hypos were unrealistic and loaded. So forget mine. Focus on yours.
Patterico (c218bd) — 5/9/2010 @ 12:16 pm
To achieve an ideal, such as freedom of speech, is a legitimate goal for a society, even if the dice have to be loaded to achieve it. Language is not the only societal convention.
nk (db4a41) — 5/9/2010 @ 12:17 pm
Because what you’re advocating is that, so long as you get where you wanted to go, it doesn’t matter how you got there.

Not at all. I am advocating a different method for getting there than you. That does not mean I am saying it doesn’t matter how we get there.

When I say “who cares” I am saying that in precisely the sense that you said: “what the writer intended didn’t much matter in the end because the man got his shelving.”

Those are your words, and the way you have phrased it, you are acknowledging that there is a sense in which it does not matter what the writer said.

That sense is not the linguistic sense. It is not the sense in which we are trying to arrive at a linguistic determination of what the writer’s intent was.

That much we can agree on.

And so when you said “what the writer intended didn’t much matter in the end because the man got his shelving” — in what sense did you mean that what the writer intended didn’t matter?

Didn’t matter to what?

I understand that it matters to what he meant.

In what sense do you think it doesn’t matter?
Patterico (c218bd) — 5/9/2010 @ 12:22 pm
I like you two gringos. You are so serious that you are funny.
nk (db4a41) — 5/9/2010 @ 12:28 pm
Imagine Mel Blanc fake Mexican voice.
nk (db4a41) — 5/9/2010 @ 12:29 pm
So. For you textualists out there who think that “intention is meaningless,” describe how convention is the ground for meaning. Explain how a “text” comes to count as a text. Explain how the “plain meaning of a text” exists apart from intent.

No. When textualists say “intention is meaningless” the issue is: meaningless to what?

I can’t speak for the other textualists here, but for me, I am not saying it is meaningless to interpreting text in a linguistic sense. I am saying it can be irrelevant to enforcement of that text by a judge.

I am explicitly saying in the post that I will concede for the sake of argument that convention is not the ground for meaning; intention is; that there is no “plain meaning” of a text apart from intent; that a text comes to count as a text only because it is animated by the speaker’s intent.

Whether I truly believe all that is another question, but I can concede it all for the purposes of making the argument I am making.

And that argument is that there is a sense in which the meaning of the text does not much matter — and the way it does not much matter is that a judge charged with enforcing that text is entitled, under some circumstances, to be aware of the subjective intent of the speaker and yet react to the text (i.e. enforce it or apply it) as if the text actually meant what a reasonable person would take it to mean — even if that is different from the subjective intent of the speaker.

Straightforward question: do you agree with the statement I just bolded?

If yes, then we have no disagreement.

If no, then what did you mean in the IKEA example when you said “what the writer intended didn’t much matter in the end because the man got his shelving”?
Patterico (c218bd) — 5/9/2010 @ 12:32 pm
I like you two gringos. You are so serious that you are funny.

Heh.

Well, I have other stuff to do, and I think I have made my points as effectively as I can.
Patterico (c218bd) — 5/9/2010 @ 12:33 pm
Glad you not mad at me, Pattericito.
nk (db4a41) — 5/9/2010 @ 12:34 pm
As I mentioned in another thread, the whole intentionalism thing may make sense when the text is a medium for communicating an idea.

But when the text is functional, like a statute, intentionalism is completely meaningless. It works or it doesn’t and the “intent” of the creator is meaningless.

I’m not sure I agree. People keep trying to re-categorize law as a form of speech that isn’t subject to the same rules. But I’m not convinced. Jeff and I agree on this much, I think: law is language, and an interpretative method that claims to apply to language must apply to law as well.

You may be on to something, however, in terms of my argument that the “practical interpretation” of words (deciding how to enforce them) may be different from the “linguistic interpretation” only in limited circumstances — and legal language appears to fall within those limited circumstances.

The interesting question to me is: when is it defensible to enforce language in a manner that accords with a conventional interpretation that is different from the linguistically proper interpretation (one appealing to the intent of the speaker)?

But before we get to that point, I am trying to get the intentionalists to agree that indeed there are situations where it is defensible. (See, for example, comment 16, where I ask if the intentionalists agree with the bolded language at the end.)

Levicitus will recognize this as a rephrasing of a question I have been asking for days.

If it is answered in a straightforward manner, we will have found common ground, and we can move on to the question of when it is appropriate to distinguish enforcement-style interpretation from linguistic-style interpretation.

Whether we get a straightforward answer to my straightforward question remains to be seen.
Patterico (c218bd) — 5/9/2010 @ 12:53 pm
In any event, if nothing else, I am proud of the way we have managed to conduct these discussions here without resorting to personal insults. If I get nothing else out of these threads, I have at least enjoyed that aspect.
Patterico (c218bd) — 5/9/2010 @ 12:54 pm
The opening to my mother’s funeral oration was “My parents spent a lot of money to teach me to talk pretty ….”

I don’t suppose we can avoid fighting with words but we can avoid fighting over them.
nk (db4a41) — 5/9/2010 @ 1:13 pm
I think we all understand that to understand communication generally includes understanding the intent of the “speaker”, but when the form of communication is a written document with detailed wording (”over $100,000 when over $10,000 was intended”) the only workable approach is to take it as written, until it is corrected in writing.

I tried following this closely for quite some time, but I’ve sensed I’m either not getting the point, or this is part of a larger context that I’m not appreciating. At any rate, my head is starting to feel like poor Painted Jaguar after his run-in with Slow-Solid Tortoise and Stickly-Prickly Hedgehog.

http://boop.org/jan/justso/armadil.htm
MD in Philly (ea3785) — 5/9/2010 @ 1:14 pm
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.
Of course.
But it does matter if for political (or other nefarious purposes) you publicly excoriate the writer/speaker words as, well, let’s just say racist without ever entertaining the writer’s claimed context/intent.

In the case of indecipherable manual writer, you didn’t need to know his “intent” to get a bookcase assembled, but sometimes people will take your words, assemble themselves a nice “bookcase” and then hang you with them and deny all references to intent and/or context.
That is what defense attorneys are for… and what judges and plea bargains and juries, and even exonerations are about sometimes… no intent.

The Hutaree case has some interest to me here also, because their lawyer basically says his clients are idiots, spouting stupid crazy nonsense about dangerous things, but they had no intentions to actually do anything about any of it except jawbone.

The idea of “wrong but useful” is getting out on thin ice. If only because conventions change.
The left has forced the media and public toward a new convention of who or what is a racist.
Conservative Tea Party Grandma? Racist
Joe Biden (D)? Misstatement
In this case the racist intent that is imputed by revised convention onto Grandma though wrong; is useful for the practical consideration of branding her and her friends as horrific.

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.
Of course.
The writer may have some skin in the game though and I’d imagine that if his/her intent was at least given a hearing before dismissal it would be just.
There are times when this approach is easy call (the manual), and times when it is wrong… who gets to decide?
Who is going to be given control of the narrative?
Which evolving conventions are eagerly being applied?
Again, this is why we often need to hire people to advocate for us.

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 interpret 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.

Of course
But you just described a judge who determined intent and decided it was poorly signed or whatever was not useful to the practical question before him/her

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.
OK
“the best legal interpretation is often the conventional one”
Maybe.
Just don’t let them change the underlying conventions, and advocate for a hearing on intent.

Clearly the befuddled manual writer can be given a hearing as to his/her intent… a good civil attorney would be very interested in what inspired the insertion of irony… maybe the manuals have been revered by buyers and fans as quirky for decades and the set up is “a” goes into “b” anyway and even a chimp could do it.

As an aside, a good soccer ref can do a clinic on intent (thoughts and actions on a split second scale)
They base their no calls, fouls, yellow cards, and red cards on it. It is why the best seem to conduct the flow away from themselves and towards a beautiful game.
Steve G (7d4c78) — 5/9/2010 @ 1:27 pm
If someone could tell me how to do paragraph breaks here, I would be grateful.
Steve G (7d4c78) — 5/9/2010 @ 1:28 pm
“In any event, if nothing else, I am proud of the way we have managed to conduct these discussions here without resorting to personal insults.”

Lounging here in my silk smoking jacket and expensive, but oh so stylish and comfortable slippers, I have managed to control my baser instincts through periodic applications of Miracle Whip and switching threads, but mostly switching threads.
daleyrocks (1d0d98) — 5/9/2010 @ 1:35 pm
Head aches.

(That is a complete, though two-word, sentence.)
Ira (28a423) — 5/9/2010 @ 1:59 pm
I think we all understand that to understand communication generally includes understanding the intent of the “speaker”, but when the form of communication is a written document with detailed wording (”over $100,000 when over $10,000 was intended”) the only workable approach is to take it as written, until it is corrected in writing.

I’m not sure I agree. Let’s say, for example, that someone is writing ironically, and the audience universally understands that.

For example: let’s say that I once said: “Brad Friedman makes the BEST points!” And let’s say that this somehow became a catch phrase around here — and that, every time I said it, every person who read it understood that I was being ironic.

I might include such a phrase in a long, detailed, written document — but as long as every reader understood it as ironic, there would be no problem in interpreting that differently than it reads.

Indeed, taking such a document “as written” would not only ignore the intent, but would fly in the face of the communication that is happening.
Patterico (c218bd) — 5/9/2010 @ 2:02 pm
What happens when the IKEA shelving collapses and maims an infant and the purchaser sues the manufacturer for faulty installation instructions?
daleyrocks (1d0d98) — 5/9/2010 @ 2:21 pm
Ironically, of course.
daleyrocks (1d0d98) — 5/9/2010 @ 2:22 pm
It seems to me that intentionalism describes rather than prescribes. That it is inextricably bound to the conventionality of speech (I hate myself for using that phrase but I think that’s how I need to talk to you people) and as ideas get more and more complex, what Jeff calls signifiers and I call qualifiers become more and more important. But your audience “hears what [it] wants to hear and disregards the rest” and I have no solution for that.
nk (db4a41) — 5/9/2010 @ 2:24 pm
Here is the crux of the matter.

We have this (in ideal, at least) equality before the law.

So each time a judge rules on a case, an ever-mindful goal is to rule consistently. How one rules for one case, one must rule the same in another, to apply the law fairly.

But what constitutes convention? Who (and how) decides what is the ‘reasonable’ interpretation and by what audience?

This is a world of problems. Many judges will disagree to great, absurd extents. You keep using Scalia but how do you suggest Ginsburg decides her cases? Or Stevens?

So if we shall use convention to define words.. can we define convention?

How do we determine convention?
Entropy (685a0b) — 5/9/2010 @ 2:29 pm
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.

Liberal judges seem to have taken that thought and ran with it.

I don’t think the examples Pat is offering do justice(heh) to the complexity of this issue. The assumption seems to be that we have some crystal clear and unamiguous piece of text and that judges are saying that it means something else, citing what they claim was the writers “intent”.

Presumably nobody would defend their doing do in such a case.

Better examples for discussing intentionalism would be most con-law cases. The First Amendment does not provide clear and unambiguous answers to many cases that come before the courts. In those cases, what criteria should judges use in deciding what the law should be? What the heck is an “Establishment of religion”? I think the correct answer is, an establishment of religion is what the writers of the First Amendment would have understood to be one.

In other words, their “intent” and understanding of their own words is vital to the process of understanding their “text”.
Subotai (db0b2a) — 5/9/2010 @ 2:32 pm
This is the foreign law problem.

If you take anything Scalia’s ever written about the use of foreign laws as precedent in legal decisions, substitute “the reasonable man standard of interpretation” for “foreign law”, then this is the problem I’m having with such a suggestion.

Foreign laws are contradictory. A judge shall pick and choose which foreign laws he wants to have precedent (and discard the rest) as a smoke screen for ruling whatever he pleases.
Entropy (685a0b) — 5/9/2010 @ 2:34 pm
a judge charged with enforcing that text is entitled, under some circumstances, to be aware of the subjective intent of the speaker and yet react to the text (i.e. enforce it or apply it) as if the text actually meant what a reasonable person would take it to mean — even if that is different from the subjective intent of the speaker.

Straightforward question: do you agree with the statement I just bolded?

Sure, I agree with it.
Subotai (db0b2a) — 5/9/2010 @ 2:37 pm
Comment by Patterico
28. I think we all understand that to understand communication generally includes understanding the intent of the “speaker”, but when the form of communication is a written document with detailed wording (”over $100,000 when over $10,000 was intended”) the only workable approach is to take it as written, until it is corrected in writing.

I’m not sure I agree. Let’s say, for example, that someone is writing ironically, and the audience universally understands that. …

Sir, irony or ironies, you did not take into account the intent of my post on interpreting intent. You also need to realize the intent of my previous post and the intent of this post are different, and that is intentional.

The intent of my post at #23 had to do with written documents such as legislation, which, though as comical as they may be at times, are widely understood to be of serious intent and direct communication. I would have thought that this intent would have been understood in the context of this discussion, whether one reads my post with a “textualist’s” philosophy or from an “intentionalist’s” point of view. It was not intended for you to understand “written document” as simply any bit of “written material” be it on official letterhead of the POTUS or a napkin (though I wonder if some patent applications have included napkin scribbles).

By “written document” I thought it would be understood that my intention was to refer to any serious bit of work with detailed factual content such as in “legal documents“. Though you may find it surprising, I am not in the habit of referring to “Mad Magazine” as a collection of “documents”. I believe “comical documents” is not a helpful phrase. One does not know if you mean something intended to be comical, or something intended to be serious but is seen as comical by others, such as the text of a press release from Mr. Gibbs. (I am assuming your policy against personal attacks is intended for those engaged in this discussion only, and not those in elected office who are worthy of such treament.)

Pardon my repeated references, but I must close with a bit of written material that I would not call a document, as it is intended to be humerous.

‘Well, suppose you say that I said that he said something quite different, I don’t see that it makes any difference; because if he said what you said I said he said, it’s just the same as if I said what he said he said. On the other hand, if you think he said that you were to uncoil me with a scoop, instead of pawing me into drops with a shell, I can’t help that, can I?’

Slow-and-Solid Tortoise (liberty taken with gender of persoanl pronouns)
MD in Philly (ea3785) — 5/9/2010 @ 2:38 pm
as it is intended to be humerous.

Heh!
nk (db4a41) — 5/9/2010 @ 2:47 pm
Da legbone be connected to da backbone

It’s your site, Patterico, but how about a post about girls and baseball?
nk (db4a41) — 5/9/2010 @ 2:49 pm
Comments by nk

yeah, yeah. i didn’t proofread and I am not the bestest of typists. and even if I had used a spell checker it wouldn’t have caught it, as they can’t judge the intent of the writer
MD in Philly (ea3785) — 5/9/2010 @ 3:00 pm
These are, if anyone cares to address them, serious concerns I have. Open to all textualists. Perhaps I am lacking understanding of this system of interpretation.

How does the reasonable convention standard (what it makes sense to to most people perhaps?) differ from the ‘evolving standards of society’ standard?

The court may rule, in cases of ‘cruel and unusual punishment’, according to whether or not ‘society at large’ sees a given act as cruel or unusual. If 40 out of 50 states abolish the death penalty, is it correct to rule that the death penalty is unconstitutional because it is a cruel and unusual punishment for the remaining 10 states to inflict?

What constitutes a reasonable textual reading of the constitution on the death penalty?

Is the court’s ruling Kelo vs. New London correct? To wit: what do the words “public use” in the 5th ammendment mean?

Is the source of their meaning to be found in the intent of those who wrote it, intent of those who passed it, intent of those who ratified it, or somewhere else, say, reasonable interpretation by modern conventional standards?

If the answer is “sometimes”, it sometimes makes sense to take the intended meaning and sometimes not, who determines the legal convention/standards (and what are the standards) for when which is which? If there are none, why shall (or how shall we prevent) a judge from using either tactic as it pleases him in an ends-based method of ruling his own personal bias?

Lastly, I do not know anyone who actually voted for Richard Nixon.

If reasonable is not a concensus, how do we assure the judge is the reasonable one? If we appeal to consensus, who shall determine where concensus lies? And by what method? Pew Poll? Rasmussen?
Entropy (685a0b) — 5/9/2010 @ 3:04 pm
“How do we determine convention?”

it’s not easy. You just try. There is no interpretive magic bullet.

Nor is there one for intentionalism. The speaker has the power to decide his intent, but he does not have exclusive authority over which interpretation is correct.
Patterico (2beca1) — 5/9/2010 @ 3:18 pm
My rule is that you must say it in two lines. Because by the timed you got to the third line you forgot what the first line said and, as a consequence, you cannot remember any line.
nk (db4a41) — 5/9/2010 @ 3:28 pm
I see Entropy says he has never seen me restate intentionalism in a way that an intentionalist might agree with it.

Too bad Entropy missed the chat the other night where I did just that.

I’ll do it again: intentionalism just is. It says the meaning of an utterance is fixed by the speaker at the time of the utterance. A correct interpretation of the utterance must appeal to the speaker’s intent. Otherwise the audience privileges its own intent over the speaker’s, and this is not interpreting but creative writing.

I didn’t look that up or copy it. That’s from memory.

Now let an intentionalist rephrase my position to my satisfaction. Betcha can’t.
Patterico (2beca1) — 5/9/2010 @ 3:31 pm
You had a post about this. I does not matter how clearly you speak. If somebody wants to misunderstand you, he will. It’s not the mouth, it’s the ears, Patterico.
nk (db4a41) — 5/9/2010 @ 3:37 pm
I don’t think the examples Pat is offering do justice(heh) to the complexity of this issue. The assumption seems to be that we have some crystal clear and unamiguous piece of text and that judges are saying that it means something else, citing what they claim was the writers “intent”.

No. It is the lawmakers saying it means something different than the crystal clear plain text would be conventionally interpreted.

Better examples for discussing intentionalism would be most con-law cases. The First Amendment does not provide clear and unambiguous answers to many cases that come before the courts. In those cases, what criteria should judges use in deciding what the law should be? What the heck is an “Establishment of religion”? I think the correct answer is, an establishment of religion is what the writers of the First Amendment would have understood to be one.

In other words, their “intent” and understanding of their own words is vital to the process of understanding their “text”.

Their intent should not be relevant to the legal interpretation (enforcement) of the text. Instead, the original understanding should govern. This is Scalia’s view, and mine.
Patterico (2beca1) — 5/9/2010 @ 3:50 pm
Patterico,

First, I’ll answer your question. I’ll attempt the same feat – I’ll attempt to summarize textualism in my own words, not drawing on or looking up anything you textualist fellows have said for my terminology. Please correct me if I’m wrong.

The argument seems to be that a word must be taken to mean what a reasonable interpretation would suggest, regardless of whether the author meant something else, so that we can proceed to address the text in a consistent and fairminded way, because while intent is often indeterminate and it’s interpretation is subjective, the text itself is finite, objective and empirical.

Also, you’ve expressed that a person should be held to account for how his expressions are to be interpreted under the conventions he’s aware they most likely will be, since he’s aware they most likely will be.

And because this is simply how people will interpret.

Do you object?

Then –

So you have no magic bullet to the problems with textualism.

But it seems to me, you use the lack of a magic bullet as the drawback to intentionalism.

In your hypothetical examples your arguments seem to revolve around the fact that intentionalism can pose problems, or lead to the nonsense with the Gore ballots in Florida.

Yes.

But no alternative avoids them, either.

So you’ve stated intentionalism in a way even Goldstein (something of a scholar on the subject) would agree with. But – and I only say this honestly, because it is the impression I cannot avoid – you do not argue it as such.

I don’t claim to have seen everything you’ve ever said and written. So don’t take me for ignoring you or mischaracterizing you. But that I’ve seen, I don’t see an argument against intentionalism ‘just being’, I see arguments against focusing on intent (in legal settings) because sometimes it doesn’t work or is problematic or unwieldy.

But like I said… so is everything else.

What do all the hypotheticals – be they 10k or 100k, Bush or Gore, diamond or coal – amount to, if for each one, there is an equal problem with any alternative method?
Entropy (685a0b) — 5/9/2010 @ 4:53 pm
Isn’t it harder to identify and understand the author’s intent the farther back in time a statement is uttered or a writing is made? If so, then the passage of time makes it more likely the author’s intent will be incorrectly understood. To me, that is another practical reason to rely on conventions or the reasonable man standard to divine intent. It should be easier to identify commonly-held conventions/viewpoints at a prior point in time, than it would be to identify a particular author’s intent.
DRJ (d43dcd) — 5/9/2010 @ 4:54 pm
No. It is the lawmakers saying it means something different than the crystal clear plain text would be conventionally interpreted.

Heh. No.

Well… See… This is the thing Patterico.

That’s not what they say…

Lots of people (I dunno, 52% of the country?) will tell you they’re interpreting it according to convention (albeit modern, evolved convention), and that’s it’s crystal clear as such.

These lawmakers do not say “I’m pretending words mean different things so I can rape this text like nobodies business, which will serve the cause of social justice and make me popular at the next cocktail party”.

Their method is your method.

Now you can say ‘they’re doing it wrong’. That they’re not really, not faithfully, persuing textualist methodology but distorting it to their ends.

You can say that no more or no less than an intentionalist can say the same about those bozo’s with the Gore ballots or the dude selling diamond rings playing games with fake-seeking of intent.

Which is to say, you can say that to a great extent because it’s perfectly valid and quite true.

But it strikes me that it can’t be both ways.

Ginsburg et. al. are persuing YOUR method of crystal-clear textualism based on standard, popular conventional meaning as surely as the bozos in Florida were legitmately trying to determine the intent of Gore voters with their chad-apalooza.

Which is to say not at all in either case.
Entropy (685a0b) — 5/9/2010 @ 5:03 pm
Intent is an is/was thing and at one level just “is”.. although people lie about what they intended all the time.
Revisionist history and all that.

Understanding can be a bunch of consensus mush and can have nothing to do with the original intent.

Original understanding of the original intent by consensus of the originators brings everyone together. The intent of the originators became text… the texts of the originators illustrated their intent.
Not to say anyone would ever disingenuously interpret any of this
Steve G (7d4c78) — 5/9/2010 @ 5:12 pm
No. It is the lawmakers saying it means something different than the crystal clear plain text would be conventionally interpreted.

Can you give me some specific real world examples of this? (I have not followed all your posts on this topic, so bear with me if you’ve addressed this before) In any case, I assume such lawmakers say such a thing in the context of wanting judges to decide differently.

Their intent should not be relevant to the legal interpretation (enforcement) of the text. Instead, the original understanding should govern.

I’m not seeing a lot of daylight between their “intent” on the one hand and their “understanding” on the other. Again, if you can give some examples, maybe I’ll see it your way.
Subotai (db0b2a) — 5/9/2010 @ 5:15 pm
Their intent should not be relevant to the legal interpretation (enforcement) of the text. Instead, the original understanding should govern. This is Scalia’s view, and mine.

I’ve defended Scalia’s view as being in accordance with an intentionalist interpretation.

I cannot remotely guess how Jeff Goldstein feels about that.

I can guess (and it’s just a guess) that it’s probably not enough for him in Scalia’s case because if he doesn’t know how he got there, he’s still laboring under the wrong idea and process, even if he accidentally stepped on the right answer.

Why it matters? Well.. Jeff will say it matters and I’m inclined to agree with him. Epsitemology, foundational views, matter. The manner in which we think of things – our conceptual understanding of the theory underlying our practice – have an effect on the shaping of opinions we’ve yet to form.

My interest in linguistics originated in the likes of Orwell. Language is powerful and has consequence.

I think Scalia actually has more of a mind toward intent then Jeff gives him credit for, whether or not he frames his jurisprudence in the context of a debate on intentionalism.

On Con-Law, we’re probably (oddly enough) coming from the same place. I’m totally cool with Originalism (or whatever you’d call it).

But my reasoning to get there is epistemically intentionalist.
Entropy (685a0b) — 5/9/2010 @ 5:15 pm
a judge charged with enforcing that text is entitled, under some circumstances, to be aware of the subjective intent of the speaker and yet react to the text (i.e. enforce it or apply it) as if the text actually meant what a reasonable person would take it to mean — even if that is different from the subjective intent of the speaker.

While I agree with this, the implication is that there also exist some other circumstances under which said judge is not so entitled. It would be moe difficult but more interesting to try to define those circumstances.

This is all a very abstract discussion though. In practice judges are “entitled” to do anything they can get away with without beng impeached.
Subotai (db0b2a) — 5/9/2010 @ 5:25 pm
Isn’t it harder to identify and understand the author’s intent the farther back in time a statement is uttered or a writing is made? If so, then the passage of time makes it more likely the author’s intent will be incorrectly understood.

No. Or, at least not in a meaningful way to your argument. There is the whole of history to draw upon to determine the conventions of his day (if conventions should aid you in divining his intentions, and I think they shall).

Any originalist has this same problem, in any event. Anyone who claims that the meaning is frozen in some time has to deal with how to interpret past historical changes in the evolution of the language.

And language does evolve. If you do not deal with this, if you take a non-originalist textualist view, the meaning will indeed change as time marches on.

Conventions absolutely change. What the ‘reasonable’ interpretation is, will change. Oh my, yes. In another thread I posted an example lifted from A Canticle For Liebowitz. Very, very, very, very much so.

Go read some Olde Anglish. Conventions have changed so much you’ll suspect it’s total jibberish, or else German.

Do you think it odd to rape someone in the hair? Read the Rape of the Lock.

I myself wonder what “regulate” meant to Thomas Jefferson. I’ve heard good argument that it meant nothing of the sort it means today. By saying congress must ‘regulate’ commerce, they perhaps meant make it frequent, common and dependable. Like you’d poop if you’re “regular”. Not control it.

The important distinction is that intentionalism, like originalism, locks the meaning in place, frozen in time.

Non-originalist textualism makes the meaning fluid, in a constant state of change, never to be fully defined or nailed down.

If you take the tact that bygone context makes ancient meanings too much of a bother to deal with, and oppose intentionalism on those grounds, then you are with Ginsburg and Stevens. And bet that, textually, the meaning of the text WILL change over time.
Entropy (685a0b) — 5/9/2010 @ 5:28 pm
#52

The change [allowed to] the meaning [previous undefended intent] of the text over time will
double the change in convention
Steve G (7d4c78) — 5/9/2010 @ 5:35 pm
to be aware of the subjective intent of the speaker and yet react to the text

The intent is not subjective.

Our perception and interpretation of it is subjective, perhaps. One can make a compelling argument that all perception is subjective.

But the thing is the thing. It is objective. It is not a relativistic thing. Any more than you can have ‘a subjective apple’.

He meant what he meant, even if we never know for sure what it was.

If we have a fruit in a box, and the box is closed, and then the box explodes… we will never know what fruit was in it. The view that it was an apple is a subjective view.

But the fruit was quite an empirical object before it got ‘sploded.
Entropy (685a0b) — 5/9/2010 @ 5:40 pm
The change [allowed to] the meaning [previous undefended intent] of the text over time will
double the change in convention

Huh?

I do not know what that means.
Entropy (685a0b) — 5/9/2010 @ 5:42 pm
Entropy:

If you take the tact that bygone context makes ancient meanings too much of a bother to deal with, and oppose intentionalism on those grounds, then you are with Ginsburg and Stevens.

I don’t agree with that statement. Liberals focus on evolving meaning, which is why they can hold it was not cruel and unusual to execute 17-year-olds in the past but it is now. I’m talking about the difference between divining a specific person’s intent from writings dated 100 years ago vs divining how society or a subset of society would have viewed those words at the time.
DRJ (d43dcd) — 5/9/2010 @ 5:56 pm
It means (or I intended to communicate) that if intent is left undefended, conventions change… often at least twofold. Due to evolving meaning.
With DRJ’s example, now we don’t execute 17 yr olds…. and due to conventions left undefended over time, soon we won’t execute anyone
Steve G (7d4c78) — 5/9/2010 @ 6:09 pm
“This is all a very abstract discussion though. In practice judges are “entitled” to do anything they can get away with without beng impeached.”

That is not what I mean. I mean to be asking a normative question: what *should* the judge be allowed to do, in your opinion?
Patterico (2beca1) — 5/9/2010 @ 6:11 pm
I’m talking about the difference between divining a specific person’s intent from writings dated 100 years ago vs divining how society or a subset of society would have viewed those words at the time.

But what is your point?

How does 1 become more hard than the other because of time passed?

The only extra difficulty time places on trying to figgure out the meaning of the author of a work from 100 years ago is that you must understand the conventions of 100 years ago, and how words were used then.

And… the extra difficulty time places on trying to determine what ‘society’ understood a text to mean 100 years ago is that you must understand the conventions of 100 years ago, and how words were used then.

Besides that, the entire thing plays out the same as it does today with all the pitfalls with either approach toward interpreting.
Entropy (685a0b) — 5/9/2010 @ 6:11 pm
To say that “the passage of time makes it harder to interpret” is true. But to offer that as a downside to some methods rather than others… that is an argument for ‘living texts’ or it is nothing.

Because only a living text negates that negative.
Entropy (685a0b) — 5/9/2010 @ 6:14 pm
But to offer that as a downside to some methods rather than others… that is an argument for ‘living texts’ or it is nothing.

I don’t see that as the choice. In general, I think it would be easier to correctly understand what Congress thought “regulate” meant in 1800 than to understand what a specific person thought it meant in 1800.
DRJ (d43dcd) — 5/9/2010 @ 6:20 pm
How do you figgure?
Entropy (685a0b) — 5/9/2010 @ 6:25 pm
Has Jeff G even put together IKEA furniture? The only “language” I have seen in the many pieces of IKEA furniture that I have constructed was the language of imagery. The manual is written in Pictograms. See: http://www.ikea.com/ms/en_US/customer_service/assembly/B/B20094088.pdf for an example.

Apparently Jeff meant the conventions of imagery and illustration when he wrote, “using the conventions of language and context.”

One should have familiarity with the examples they use if one doesn’t want to look a fool.

Though I have to admit, the man in the “Billy” instructions does look like he is constructing the bookcase ironically.
Christian (f10530) — 5/9/2010 @ 6:51 pm
“But to offer that as a downside to some methods rather than others”

Was this proposal advanced by someone? Isn’t divining the intent of speech 100 years ago harder for all (I’m not sure what methods are under consideration in the above statement) methods?
daleyrocks (1d0d98) — 5/9/2010 @ 6:53 pm
Entropy,

To me, the easiest example to resolve would be where the author discussed a topic like “regulate” and clearly stated “this is what I mean when I say regulate …”. But how often does that happen? And what if the intent you are trying to divine is susceptible to several meanings — even though the author may have known exactly what he meant?

Thus, even if we think we understand the author’s meaning, I’d still want to know how his contemporaries defined “regulate.” And because you’ve expanded your search to a larger group of people, there should be better odds of finding writings that clearly discuss “regulate” in the context or depth we need.
DRJ (d43dcd) — 5/9/2010 @ 7:10 pm
Was this proposal advanced by someone? Isn’t divining the intent of speech 100 years ago harder for all … methods?

Yes it was, and yes it is daleyrocks. So… exactly.

Well, save if you have a method that has decided that the meaning of the text changes with the times and is always contemporary. That method (alone) doesn’t have any increased difficulty.
Entropy (685a0b) — 5/9/2010 @ 8:15 pm
And because you’ve expanded your search to a larger group of people, there should be better odds of finding writings that clearly discuss “regulate” in the context or depth we need.

And absolutely no garauntee those writings represented any concensus about understanding in those times.

Furthermore, you must now interpret all them as well, across time no less, to find out what they mean about the other text’s meaning.

So shall you read yet more? Search for contemporary interpretations that demonstrate the contemporary understanding of the contemporary interpretations of the piece you’re trying to interpret?

Beyond that…

Imagine living 100 years from now and reading MSM about what contemporary views were. Think of the coastal/fly-over gap.

Imagine getting a sense of the times from reports that 90% or more, stricly adhere to a political narrative. Political correctness. Imagine getting a sense that there were for more instances of xenophobic crimes against muslims then there was terrorism to begin with – a polar opposite of reality, and a proportional break-down of media coverage, which you’d expect to be proportional to instances of these acts.

People see the news suddenly spike coverage in crime (say, kidnapping) and have a sense that crimes have increased. They have not. Coverage has increased.

Was their less crime in the 50’s? Or less coverage? There is an open debate about that going on today. And that was only 60 years ago – some people are still alive!

Imagine reading that there was a complete consensus among scientists and they had settled the issue of anthropogenic global warming. 1000 times over, enough to create the appperance of a consensus about their being a consensus.

Remember Ron Paul tactics in 2008? Do you remember the stacked straw polls, the rigged online polls, the posters and billboards, the online trolling? All to generate ‘momemtum’ and make support seem bigger than it actually was?

This is not a new tactic. It’s ancient. So long as people have been susceptible to Argumentum ad Numerum people have tried to paint the false appearance of consensus, the debate is over, the issue settled, everyone agrees with me.

Look at how congress passed Campaign Finance Reform. There was no movement, no consenus, no clamor… but congress thought there was because lobbyists in DC created the false appearance of an overwhelming grass-roots public demand for campaign reform that never existed.

Or imagine reading something like Newsweek and learning everyone loved Barrack Obama.

Imagine reading Barrack Obama… talking about his interpretation of the policies of the Bush administration.

Especially all that without the context of the times. Perhaps without realizing the adversial political positions of people. Imagine listening to Barrack Obama talk about Ronald Reagan (Barry is very favorable toward him) and interpret the common understanding of Reagan’s speeches with that.

For that matter! Read a 5 year old newspaper. Look at political hot-issues now, and 5 or 10 years ago. Tell me, when you went back to look at ‘contemporaries’ did you allow that times and perspectives changed as quickly then as they do now? Or did you regard 1646 as being pretty much the same thing as 1651, since it was only 1% off, and what’s 5 years to 300?

And which group? We are full of faction. There’s a culture war afoot. 100 years from now you may not even be aware of a schism, but which societies consensus shall you take as the concensus of all society, in a fractured multicultural society?

What you claim as a benefit is a danger. It certainly makes things easier… if you don’t mind a large degree of uncertainty about you being more easily wrong.

Let us be more easy still and just ask the magic 8 ball.

In the mean time, those other texts of other people’s (contemporary) interpretation can (may, perhaps) lend you insight into the author’s intent just as it can (may, perhaps) lend you insight into the contemporary consensus views. Or not.

What it requires, any way you slice it, is knowledge of the conventions of the time to do properly.

And once you have those (to the extent you can be sure they’re accurate about a time you’ve never experienced first hand and only have lingering remnants) you may as well be a contemporary (for as close as you’ll ever come to one) and proceed just as you would with a modern text from there on out.

But absolutely not – no, I do not regard trying to determine the context and views of an entire bygone civilization as easier than just trying to figgure out 1 lonely little dude.
Entropy (685a0b) — 5/9/2010 @ 8:46 pm
I mean to be asking a normative question: what *should* the judge be allowed to do, in your opinion?

If the text is clear, the judge should follow the text. If the text does not clearly answer the question at hand, the judge has to resort to trying to understand the “intent” of the legislation in question. If the letter of the law is not clear, perhaps the spirit of it is.

I think a good example of this would be the recent string of 2nd Amdt cases, including Heller. Did the SCOTUS base it’s opinion simply on the text? No, the history of the 2nd Amdt was considered along with the intent/understanding of the men who wrote it and voted for it.

If neither sense not sensibility can be discerned it would be desirable for judges to announce, “The existing law says nothing whatsoever here. Back to you, legislators. Write another law dealing with this topic if you like.”

That’s the way I’d like to see judges address the law.
Subotai (db0b2a) — 5/9/2010 @ 8:59 pm
“But absolutely not – no, I do not regard trying to determine the context and views of an entire bygone civilization as easier than just trying to figgure out 1 lonely little dude.”

Life’s a bitch.
daleyrocks (1d0d98) — 5/9/2010 @ 9:08 pm
Entropy,

I agree knowledge of conventions is important, but I would look for consistency in how a topic is treated in many writings of that era.

When historians look back on today, I doubt they will find consistent opinions about our Presidents or their policies, but they could reasonably decide certain issues were discussed more than others — things like race, immigration and bipartisanship. Knowing about those issues would assist in understanding the views of the writings/intent of our authors.
DRJ (d43dcd) — 5/9/2010 @ 9:11 pm
Knowing about those issues would assist in understanding the views of the writings/intent of our authors.

Absolutely.
Entropy (685a0b) — 5/9/2010 @ 10:05 pm
I think a good example of this would be the recent string of 2nd Amdt cases, including Heller. Did the SCOTUS base it’s opinion simply on the text? No, the history of the 2nd Amdt was considered along with the intent/understanding of the men who wrote it and voted for it.

I don’t think so. I think the originalism in Heller was explicitly an “original public meaning” analysis and NOT an “original intent” analysis, or even an “original intent/understanding analysis.”

The difference between original “public meaning” or original “understanding,” on one hand, and original “intent,” on the other, is at the crux of what Goldstein and I have been debating. So I can’t let you get away with suggesting that Heller focused on original “intent” in any way, when I believe (subject to correction if I’m wrong!) that it employed an original “public meaning” analysis. That is the sort of analysis I have been supporting, and it seems to have worked quite well in Heller.
Patterico (c218bd) — 5/9/2010 @ 11:08 pm
It means (or I intended to communicate) that if intent is left undefended, conventions change… often at least twofold. Due to evolving meaning.

Not at all. The defense against changing convention is originalism. But it need not be original “intent” originalism. I have discussed this more fully in recent posts, Steve G; you might want to review them for a fuller explication as to the distinction.
Patterico (c218bd) — 5/9/2010 @ 11:09 pm
Mr. Goldstein, in your post you are, essentially, telling me that sloppiness in communications must be rewarded as I read it as an engineer.

The goal of a contract or a written law is to communicate to others what the writers intend. If the writers are sloppy and do not say precisely what they intend, should we reward them with a “Do What I Meant” interpretation? Gee, I wish I could get DWIMs for my software!

The two people making the diamond ring contract were not telling each other what was going on. They were telling you, me, and any other person who might read the contract what is intended to happen with their exchange. They have expressed an intent with the general public or its representative, a judge, as the intended audience. If either or both of them communicated it improperly asking the court to be a mind reader is ridiculous. They have purported to tell us their explicit intent in plain language. If it is wrong THEY failed, not us. And THEY should suffer the consequences.

When our legislators make the “opposite of what they intended” error, aside from taking them out to be shot for negiligence {^_-}, how are we expected to be mind readers. They have either told us their intent or failed miserably. If it is the latter case it is up to them to rectify their mistake. The court must believe what was communicated by the language of the written legislation. How can society work any other way?

How can a well meaning person abide by the law if it is not what was plainly written? When it’s not the public gets more and more frustrated and disrespectful of the law. This breeds undesirable events such as revolutions.

(This is why our legislatures should be very careful about not voting on any legislation and indeed blocking votes on any legislation they have not personally read in full and understood. Not doing so is dereliction of duty on their part, isn’t it?)

{o.o}
JD (9ac83d) — 5/10/2010 @ 7:17 am
Comment by JD — 5/10/2010 @ 7:17 am

The other JD (not to be confused with the third JD)… it’s causing confusion. It would be appreciated if you would modify or change your name from JD to something else so people no longer confuse you with the original JD. Thanks. 😉
Stashiu3 (44da70) — 5/10/2010 @ 7:42 am
#73

The defense against changing convention is originalism. But it need not be original “intent” originalism.

I understand, but I think that it’d be easy to get around that by declaring the original a “flawed document”
Steve G (7d4c78) — 5/10/2010 @ 1:56 pm
{o.o} JD — 5/10/2010 @ 7:17 am:

Would you be willing to change your name from “JD” to “JD2”? Repeat commenters are great but it gets confusing when we use initials.
DRJ (d43dcd) — 5/10/2010 @ 2:31 pm

5/9/2010

Jeff Goldstein Makes My Point About Intentionalism and Legal Interpretation

77 Responses to “Jeff Goldstein Makes My Point About Intentionalism and Legal Interpretation”

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