Conversation Between a Statute and an Intentionalist, 1
Statute [looking down at the words written on itself]: “Lookee here. I say: ‘This tax applies to people making over $100,000.’ What do I mean when I say that?”
Intentionalist: “What you mean depends upon the intent of the legislators that passed you.”
Statute: “Oh. Well, Sen. Feinstein was one of the people who passed me. She intended that the tax apply to people making over $10,000.”
Intentionalist: “Well, if the legislators meant $10,000, then that is the meaning of $100,000. The speaker is the one who fixes the meaning. The meaning of a text hasn’t changed simply because it doesn’t adhere to convention.”*
Statute: “Oh. Well, Sen. Inhofe was one of the people who passed me. He intended that the tax apply to people making over $100,000.”
Intentionalist:
Statute: “So which do I mean?”
Intentionalist:
Statute: “To be honest with you, the other 98 Senators didn’t even read me at all. They asked their staffers and pollsters which way to vote.”
Intentionalist:
Statute: “So which do I mean?”
Intentionalist: “Listen. To ignore ‘legislative intent’ because, as a specialized endeavor, one recognizes the difficulty in reconstructing it, it having come from a variety of (potentially) compromising forces whose individual intentions may sometimes conflict when taken separately, is to ignore where the originating locus of meaning for the law lies.”*
Statute: “Gotcha.”
Intentionalist: “Good.”
Statute:
Intentionalist:
Statute:
Intentionalist:
Statute: “So which do I mean?”
Intentionalist:
Patterico (c218bd) — 5/16/2010 @ 1:52 pmTaxpayer: Dumbass, until somebody changes the words in you, Statute, you mean $100,000. Can’t you read?
daleyrocks (1d0d98) — 5/16/2010 @ 2:08 pmFunctionalist: Get that egret back, ’cause I’m gonna fry it up for dinner.
SPQR (26be8b) — 5/16/2010 @ 2:16 pmFunctionalist: Get that egret back, ’cause I’m gonna fry it up for dinner.
Comment by SPQR — 5/16/2010 @ 2:16 pm
LOL
[note: fished from spam filter. –Stashiu]
no one you know (14208b) — 5/16/2010 @ 2:22 pmStatute: Whachoo mean I mean $10,000? Everybody knows $10,000 has four zeros. I’ve got five zeros, just look at the marks on the page. When everything is spelled out, how is knowing the intent of the legislators going to get me any pie at the end of the day, Willis?
daleyrocks (1d0d98) — 5/16/2010 @ 2:32 pmStatute: Meet my friend, JesusFace of the scorched tortilla, cause just like him, I wrote myself and I’m whatever the person reading me decides what I mean.
Darleen Click (fe8e8e) — 5/16/2010 @ 2:50 pmif you cant afford another zero…
EricPWJohnson (7ff4d9) — 5/16/2010 @ 2:51 pmStatute: by the way, think of all the money we can save by firing the legislatures. I mean, if I’m creating myself and I’m whatever a judge says I am, then heck what do we need legislatures for?
Darleen Click (fe8e8e) — 5/16/2010 @ 2:53 pmSo, if I understand the argument–we now have a whole bunch of laws that should be interpreted as satire?
BfC (5209ec) — 5/16/2010 @ 3:06 pmLet me translate #6 and #8:
Intentionalist:
Patterico (c218bd) — 5/16/2010 @ 3:26 pmDarleen, who expresses great insult at daleyrocks’ comment that PW is a “hive mind,” tells the hive mind at PW that her comments here are “playing along with that latest idiocy.” So she whines about being insulted here as she insults us there.
Does anyone have a good reason that I should continue to enforce civility here when Goldstein declared us all to be operating in bad faith three days ago, and the one person still commenting here (Darleen) is calling what I am writing “idiocy”?
Meanwhile, nobody at the hive mind at PW has bothered to correct Goldstein’s rank falsehood that Leviticus “didn’t return” to a thread that he returned to seven times.
Patterico (c218bd) — 5/16/2010 @ 3:32 pmDon’t look at me. You can see how far my attempts got.
SPQR (26be8b) — 5/16/2010 @ 3:36 pmI think we can do without following PW into Charles Johnsonoid paranoia.
TTC (4eaf13) — 5/16/2010 @ 3:39 pmPainted Jaguar: If someone wants to accuse me of “operating in bad faith”, they should do it to me directly and after responding to my questions. I can cheerfully disagree with somebody, I can not and will not tolerate the opinion that I am arguing in bad faith, willfull ignorance, or intellectual dishonesty. Friends become no longer friends when they take that view of me.
If it is my personage (or, should I say my “Jaguarage”) they take offense at, then they are depriving me of my main tool to tolerate this ongoing discussion about how many zero’s are in $10,000 or $100,000.
Yes, dear leader, continue to enforce civility. it is harder to follow a dialogue when it turns into venum spewing back and forth, and my mummy said to stick to Anaconda’s for lunch, not Fer-de-lance’s and other things that spew venum.
To the statue, neither my mummy, Stickly-Prickly Hedgehog, Slow-Solid Tortoise, neither the armadillo, nor I ever said we do not need legislatures. What we don’t need are legislatures that do not know the difference or take the effort to clarify whether they meant $10,000 or $100,000 to begin with, don’t you see.
For a legislature should write laws that can be understood by the people, is this not right?
MD in Philly (ea3785) — 5/16/2010 @ 3:59 pmWhat we don’t need are legislatures that do not know the difference or take the effort to clarify whether they meant $10,000 or $100,000 to begin with, don’t you see.
Excellent point. But how will they learn that if they are not held responsible for signally poorly? And certainly a judge that dismisses their intent and rules according to his/her own meaning is not holding the legislatures responsible, s/he is just assuming the role of legislator.
What does a small child learn if everytime they make a mess and wherever they make a mess, Mommy or Daddy will clean it up?
I understand that a lot of judges enjoy writing law, but they are in the wrong job to do that.
Just as it is wrong for someone to put their own meaning on someone else’s text and then point at the person and shout “J’accuse!” for the “offense” it gives.
Darleen Click (fe8e8e) — 5/16/2010 @ 4:09 pmYes, dear leader, continue to enforce civility
All right. daleyrocks, in case anyone wants to continue the debate, we’ll continue to enforce civility, despite the fact that it’s one-sided and that Leviticus has had falsehoods told about him.
I’ll follow MD in Philly’s request because he is one of the few people who has stuck with this discussion, and he wants it. So I’ll honor that.
There’s a comment in the filter that continues the insults (intending to call our argument “idiocy” — but failing to do so, because the argument so labeled attacks a strawman). There it will remain, since I am following the request of MD in Philly. Darleen is invited to make the same point without being insulting.
Patterico (c218bd) — 5/16/2010 @ 4:30 pmDarleen:
In Jeff’s own example of the guy building the bookshelf while using instructions written ironically (but that work when the builder ignores the irony and follows them as written), I assume you agree that the bookshelf builder is justified in building the bookshelf according to the non-ironic construal of the instructions.
In that case, he may be “writing his own text” in the terminology y’all use . . . but he is JUSTIFIED in doing so, because that’s how he gets his bookshelf.
Wouldn’t you agree?
Patterico (c218bd) — 5/16/2010 @ 4:50 pmThis is why I adopt original public understanding to interpret the laws.
Michael Ejercito (249c90) — 5/16/2010 @ 6:15 pmOk, mostly I lurk, but I have been following this conversation closely and I think it’s both fascinating and important.
I’ve been hesitant to drop in because I know there is some animosity and history here and I do not want to inflame that at all. I admit I have not followed many of the conversations between PW and PP.
In this instance, it seems to me that you are not arguing the same things at all. I believe I understand the difference between textualism and internationalism as both sides have made them.
As I am following this, Pat’s POV/argument is that intentionalism makes very valid points but, that it can be utterly useless when confronted with some very some valid situations. Those situations have been clearly defined in many places, so I’m not going to rehash those pieces.
I don’t think Patrick is refuting intentionalism as legitimate or correct. Just that it ought not to be the base philosophy when dealing with humans. My take on the issue only….
I know I read a comment where someone decried the use of Patrick turning intentionalism as into a philosophy. I would like to agree with whoever made that statement. However, it seems that all counter arguments from PW insist on using the language/terms/mindset of intentionalism. How is that not a philosophy?
IMAO, it seems both textualism and intentionalism are necessary and valuable.
slowsunday (ec6d9f) — 5/16/2010 @ 6:49 pmOh, and FWIW…
Patrick, I think your polite policy on some issues is spot on and thanks for that. The discussions are way better when you don’t have to wade thru 30 comments of name calling!
There may not be many people commenting on this particular thread, but if you keep that policy up on serious threads, I bet you’ll draw more lurkers in.
Anyway, thanx.
slowsunday (ec6d9f) — 5/16/2010 @ 6:53 pmslowsunday:
Thank you very much for saying that you have gotten something out of the discussion, that you appreciate the civility policy, and that you understand what I am saying. As far as the blog goes, you made my day.
Patterico (c218bd) — 5/16/2010 @ 7:42 pmI will say, the policy is damned hard to keep up when people like Jeff Goldstein issue falsehoods about a good guy like Leviticus, and refuse to correct the falsehoods.
But why should I be surprised, after the way he treated Scott Jacobs?
Patterico (c218bd) — 5/16/2010 @ 8:31 pmEnjoy this single break from my departure, as it won’t happen again.
Patrick, I would thank you to never mention me again.
You know full well why I left, Patrick. Until such time as you are willing to deal with the issue, I would thank you to leave me and my name off the pages of this blog.
Scott Jacobs (d027b8) — 5/16/2010 @ 8:53 pmStatute: lookie here, I say “No salt shall be used in food preparation in restaurants. Violators are subject to $1,000 civil penalty.” Do I plainly apply to a sidewalk tamale vendor? P.S. I don’t define “restaurant.”
Andrew (816244) — 5/16/2010 @ 8:58 pmScott:
Yes, I know: you left because you wanted to dictate to me whom I could let comment here. And now you’re trying to dictate what I say.
Look: I agree with you that Goldstein was an unspeakable prick to you. And yes, a particular commenter here (whom I haven’t seen much lately at either blog) did not disown Goldstein despite Goldstein’s assholish moves. And no, I didn’t ban said commenter despite your demands that I do so.
I stand by that decision, just as I stand by my repeated statements that we miss you here.
But you have no right to dictate who comments here, or what I say here.
Patterico (c218bd) — 5/16/2010 @ 9:08 pmI like the civility rule very much. Name calling is not helpful because its very nature deprives the target of the information needed to see the other side of an argument. If I call you, the reader, an idiot, what information do you have that would allow you to correct the problem? None, and the statement doesn’t advance the story. Name calling is not helpful. If you’re going to decry the logic of an argument, then show the defect rather than call it idiocy. The side that uses name calling usually loses.
Further, appeals to authority (or unauthority ie invoking the evil “they”) make no sense, either an idea has merit, some merit or no merit, and the person discussing it is irrelevant. While the discussion is interesting, I see a very visible undercurrent of animosity between the debaters. Ideas will stand on their own even if the people debating them don’t like each other. Ideas are bulletproof. V said so. 🙂 Take V out of it, and the idea still stands. (see Ideas are bulletproof on youtube) Its a very cool clip.
Jeff M (0204be) — 5/16/2010 @ 9:11 pmExcellent point. But how will they learn that if they are not held responsible for signally poorly? And certainly a judge that dismisses their intent and rules according to his/her own meaning is not holding the legislatures responsible, s/he is just assuming the role of legislator.
What does a small child learn if everytime they make a mess and wherever they make a mess, Mommy or Daddy will clean it up?
Comment by Darleen Click
It would seem to me that what would “enable” the legislature to remain sloppy is for judges to go by “what they meant” instead of what the law says.
The legislature will learn because they are held accountable because what they “intended” (we’re told) is not what is going to be enforced, because that is not what is written in the law.
You make the claim that “we” are advancing the idea that legislatures are not necessary because the judge makes the laws anyway. When I point out you have overdone it, and all “we” want is a legislature that can make laws that are understood, you counter with the claim that “our” position lets the legislature off the hook for needing to get it right. I do not see how that follows, in fact I think the case is just the opposite, and I’m tempted to think you are trying to counter each point just for the sake of countering the point, not in trying to clarify the matter at hand.
I think we agree that judges should not be making law. The question is if the law is written to say “X” as understood by English speaking educated society, but “the legislature” states they really meant “not-X”, what is the judge to do. One view is that the judge needs to go by what is recorded as the law. “Your” view is that if the judge acts consistent with the law saying “X”, then the judge has actually “changed the text”, and he has no right to do anything other than act as if the law says “not-X”.
That position seems untenable, because even if you defined “text” in a way to make it work somehow, you then have the issue as how do you decipher what the legislature’s “intent” is/was? By the explanation of the sponser/s of the bill, by the press briefings? By polling 51% of the legislature? By polling each individual who voted? under oath? hooked up to a lie detector? Jack Bauer standing by? You can’t trust the average politician to mean what they say when they say it, how the heck are you going to get them to truthfully commit to what they intended “back then”?
Do we want to give the “right” to Speaker Pelosi to say, “We really didn’t want paragraph 5,791 of the Healthcare reform bill to say what it says, we really wanted it to say, “Blah, blah, blah”, and the judge to say, “Duly noted, thank you”
Patterico, thank you for hearing my opinion previously, but it was just one person’s opinion. When civil discourse gets nowhere, one can then become uncivil or just stop it.
When “they” claimed that to say “$100,000 means $100,000” is to “change the text” if “they” meant to say “$10,000” I decided that either they are pushing something to an abstraction that makes no sense, or they are using jargon that is not communicating well. If their intent was to explain their position more clearly, they have not achieved it.
MD in Philly (ea3785) — 5/16/2010 @ 10:04 pmHow DARE you?! The semioticians are the experts here, my friend, and you are just the rabble. It is “rewriting the text” to read “$100,000” as “$100,000” — and if you can’t see that, that’s just because you are too dense to understand the rarefied terminology involved. We are all unserious people who, if the truth be told, are unworthy to kiss the soles of Jeff Goldstein’s Reeboks.
Patterico (c218bd) — 5/16/2010 @ 10:15 pmIt is my intention to soon go to bed, which was also my intention about an hour ago, but this time I intend to keep my intention.
I must admit that I am thankful for this dialogue for one reason, if no other, and that is I think “The Beginning of Armadillos” is a tremendous story and never yet have tired of thinking of it. So it is all right, as you see, even if some of the “text” has been about as clear as the dark, turbid Amazon.
MD in Philly (ea3785) — 5/16/2010 @ 10:22 pmMD in Philly – The locus of the meaning is the locus of the meaning. Focus on the locus.
Become the locus.
daleyrocks (1d0d98) — 5/16/2010 @ 10:39 pmBe the ball.
DRJ (d43dcd) — 5/16/2010 @ 10:44 pmGunga galunga.
daleyrocks (1d0d98) — 5/16/2010 @ 10:48 pmMD in Philly – you are a badass, sir: a scholar and a gentleman, in the tongue of a bygone era. A Hall of Fame application of the Just-So Stories throughout these threads, to be sure – my proverbial hat is off to you.
Leviticus (30ac20) — 5/16/2010 @ 11:14 pmWell, thank you for the kind comments, but you, Leviticus, did the truly heroic. I simply enjoyed making a few points that I thought were self-evident, you tried to wade into their arguments and meet them on their terms. Trying to do that made my spots ache.
One of the lighthearted parts of parenting is discovering children’s literature that you never read yourself.
MD in Philly (ea3785) — 5/17/2010 @ 6:38 amHey thanks a lot for that post! I really like your website, could you tell me where you got your template design? Are you using wordpress? Would be cool if you could contact me!
calories in blueberries (a27fb9) — 6/3/2011 @ 6:21 am