In his latest post on intentionalism and legal interpretation, Jeff Goldstein attacks textualism with arguments that (I think) talk past the arguments I have made in recent weeks.
I have explained my position on this: “sometimes the speaker’s intent is irrelevant to the practical problem of what to do with his words.” I argue that, without pretending to say that the speaker meant something different than he meant, a judge is sometimes entitled to enforce a speaker’s words in a manner consistent with the original understanding of the words (what Goldstein calls “convention”), rather than the speaker’s intent. Thus:
I have also argued that this need not be restricted to legalisms. Using Goldstein’s own example of a bookshelf assembler armed with assembly instructions that work when conventionally interpreted, but that are actually intended ironically, I argued:
- The bookshelf assembler should follow the instructions as written, if he knows that they will work if interpreted conventionally — even if he knows that they are not intended to be followed conventionally.
In these examples, the receiver of the communication acknowledges that he understands the speaker’s intent — and then proceeds to ignore it, not in his “interpretation” of the language but in its implementation.
In his latest post, Goldstein says:
When a textualist asks “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.
Yes, but in all the above examples, I am talking about a third scenario. Namely, the intent can be reconstructed — but a receiver simply chooses to enforce or implement the language in a manner inconsistent with that intent. Which does not mean he is pretending that the intent is different than it was. It means he understands the intent, and has decided to ignore it when it comes to the practical question of how the speaker’s language should be enforced or implemented.
Whether such a course of action is justifiable is a question I have posed in several posts. For the life of me, I can’t tell whether Goldstein agrees with me that such an approach is justifiable.
If anyone can point me to somewhere he has addressed this issue in a clear, understandable fashion, I’d be much obliged. And I invite him to answer the question in comments.
If he does agree, the upshot is this: even if a speaker means one thing, an audience may be entitled to understand his intent, and yet act on his words as if he meant something different. I’m not sure that this is something the intentionalists want to acknowledge — but if they don’t, how do they get around the aforementioned examples??
P.S. As with any post about intentionalism, I’m going to apply my strict no-personal-attacks rule in this thread. Argue issues and not personalities, period. Given my restrictive rules, I will accept comments from banned commenters, as long as they follow the rules I have set forth.