Here is Antonin Scalia, a self-declared textualist, on how he feels about legislative intent:
If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.
That’s pretty direct, wouldn’t you say? It would take a lot of nerve for someone to read that statement and claim that Scalia cares about legislative intent — don’t you think?
Yet that is precisely what Jeff Goldstein does today, in a remarkable feat of redefining someone’s words to interpret them as meaning the precise opposite of what was intended. Goldstein quotes the above passage and concludes:
What Scalia hasn’t done is dismissed the writers’ intent; he has instead accepted that intent as foundational to his interpretation and then applied the terms of a contract agreed upon by the legislators and the judicial branch, namely, that the legislators will craft their texts in the most conventional way possible; and the judge will interpret that text under the assumption that the legislators have signified conventionally. Without that intent assumed, it makes no sense for Scalia to lay claim to “interpreting” to begin with.
Excuse me. Scalia has indeed dismissed the writers’ intent. How could he possibly have been any more clear? Let’s review again what Scalia said: “If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words.”
What does he have to do . . . shout it from the rooftops? Append a few exclamation points at the end of every sentence? Say: “I really mean what I just said” at the end of every paragraph?
How does Goldstein manage to take Scalia’s stark declaration that he doesn’t care about intent as a declaration that Scalia has “accepted that intent as foundational to his interpretation”? The answer reveals quite a bit about Goldstein’s method of reasoning, which eschews argumentation in favor of aggressive assertions and definitions portrayed as Revealed Truths that need not be justified with argumentation.
This is a blog post, and if you’re not interested in getting down in the weeds, this is a good place to stop. It’s enough for me that you understand that Scalia says he doesn’t care about intent, yet Goldstein casually dismisses Scalia’s crystal clear statement as meaning the precise opposite of what Scalia actually means.
But if you’re interested in how Goldstein reaches such an outlandish conclusion (and it is outlandish), read on — or, if you’re on the main page, click “more” to read further . . .