Conversation Between a Statute, an Intentionalist, a Rabbi, a Priest, Justice Scalia, a Bookshelf Builder, and a Con Artist
Statute: “Hey, you finally answered the question.”
Intentionalist: “What question?”
Statute: “If one group voted for me intending me to mean one thing, and another voted for me intending me to mean another, which do I mean?”
Intentionalist: “Oh, right. The corporate intent of a multi-authored / ratified document is the collection of all the individual intentions that are used to signify the text as text. And, just as before, those individual intentions that don’t get signaled can be dismissed . . .”
Statute: “Yeah . . . but the part where you say that an interpreter can ‘dismiss’ any ‘individual intentions that don’t get signaled’ — isn’t that just another way of saying that the judge can and should ignore lawmakers’ private intentions in favor of the plain meaning of the text? And isn’t that, well, textualism? And isn’t that what Frey has been advocating all along?”
Intentionalist:
Statute: “How far does this principle you articulate of dismissing unsignaled intentions go? I have some friends who have some questions too.”
Justice Scalia: “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. Sounds like you agree; if the framers had some ‘individual intentions that [didn’t] get signaled’ then those intentions ‘can be dismissed’ — right? Sounds like I knew what I was doing after all!”
Con artist: “Are you saying that if I don’t signal my intentions because I am trying to defraud someone, a judge can ignore (or “dismiss”) my private intentions and rule according to the plain language of the contract — interpreting my words as they would fairly be understood by a reasonable audience? Isn’t that what it means to sanction ‘dismissing’ any ‘individual intentions that [didn’t] get signaled’?”
Bookshelf builder: “So you agree with Frey that I am justified in taking these ironically written instructions, ignoring any ironic intent, and using them as written to build a bookshelf? After all, the instruction writer didn’t signal his intentions. What’s more — even if he did, aren’t I still justified in building the bookshelf, even if that means ignoring the writer’s intent?”
Statute: “I just don’t get it. If you’re all of a sudden arguing that intentions that don’t get signaled can be ‘dismissed,’ then what the hell have you been arguing about all this time?”
Intentionalist:
Statute: “And are you ever going to apologize to Leviticus for lying about him?”
Intentionalist:
Intentionalist:
Intentionalist:
Intentionalist: [Blocks trackback.]
Rabbi: “Oy. I have no idea what the hell this was about, but I am going into a bar.”
Priest “Me too.”
Egret: Just when I was learning to write English as a second language instead of these freaking scratchings.
daleyrocks (1d0d98) — 5/19/2010 @ 11:31 pmWhere are you going with this?
DRJ (d43dcd) — 5/19/2010 @ 11:36 pmthe wood shed?
redc1c4 (fb8750) — 5/20/2010 @ 1:22 amHave been following this intentionalism discussion with great interest and the whole thing keeps reminding me of the longstanding “proverb” of the U.S. pro-life movement that “the book Horton Hears a Who is objectively a pro-life book, regardless of what Dr. Seuss intended.”
Was always very conflicted about this conviction since I do believe the author’s intent when writing a book should be paramount — it’s his book! (–Jeff Goldstein, horribly oversimplified) Not to mention that Dr. Seuss apparently specifically rejected that interpretation.
But there is no getting around the fact that the plain text of the book supports a pro-life view about abortion (Patterico, horribly oversimplified). And therefore, as “against the intent of the author” as it seems, it IS legitimate to reference it as such.
no one you know (14208b) — 5/20/2010 @ 5:07 amComment by no one you know — 5/20/2010 @ 5:07 am
Well, if there are two places where intentionalism has absolutely no place, it’s poetry and art, and Dr. Zeuss was both.
nk (db4a41) — 5/20/2010 @ 5:13 amAlthough Stalinists (and Seuss was one for a while) can be very puritanical.
nk (db4a41) — 5/20/2010 @ 5:15 am“If you are a textualist, you don’t care about the intent..”
Conservatives suffer from just as much ‘intent’ as liberals do, no matter how much they claim otherwise. Because they, like everyone else, bring their own bias to the table. And it’s still a matter of interpretation, which means you have intent either way.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Yet the Court has prohibited certain practices. Religions can’t do illegal drugs. Religions can’t perform multiple marriages, or marry off underage girls. Under a strict ‘textual’ reading, these are both permissible. There’s nothing in the text about any prohibition against multiple marriages. Or use of drugs to induce a spiritual state.
The Book of Genesis has exactly the same words for any Christian to read, except some interpret it as literal and some don’t. Both think they’re right. So which is right? They both can’t be.
Textualism is a ruse of conservative judges to justify their interpretation of the Constitution and their conservative activism. There’s always intent and there’s always interpretation.
JEA (9f9fc9) — 5/20/2010 @ 5:19 amJEA – Try reading some of the posts leading up to this one. You might avoid beclowning yourself with your obvious misunderstanding of the arguments that way.
daleyrocks (1d0d98) — 5/20/2010 @ 6:35 amAlthough Stalinists (and Seuss was one for a while) can be very puritanical.
Comment by nk — 5/20/2010 @ 5:15 am
Was he a Stalinist? Huh – didn’t know that. I learn something new every day.
no one you know (196ed7) — 5/20/2010 @ 7:14 amBogus argument. The “certain practices” are illegal for everyone, not just for religions. Using your logic, you would argue that the law cannot prohibit a religion from human sacrifices.
Some chump (4d456e) — 5/20/2010 @ 7:17 amIf a law is to be implemented based on the writer’s intent–Then if the law does not accomplish its intent (a jobs bill that does not create jobs)–Should a judge then use the disconnect between intent and results to rule the law null and void?
BfC (5209ec) — 5/20/2010 @ 7:30 amFrom Goldstein’s latest post:
Leftist academics support textualism as a statutory interpretation method?!
That’s news to me! I wonder if he can name even one such “supporter.”
Even if this were true, this is the guilt by association shtick. That’s not an argument. It’s a fallacy. But it’s one he has used many times before.
Patterico (c218bd) — 5/20/2010 @ 7:32 amWas he a Stalinist? Huh – didn’t know that. I learn something new every day.
Comment by no one you know — 5/20/2010 @ 7:14 am
His early work cannot be called anything other than pro-Soviet propaganda. Although I believe that it was more intended to make America declare war against Nazi Germany after the invasion of Russia than bring Communism to America.
nk (db4a41) — 5/20/2010 @ 7:36 amOn the point of intentionalism and art …
the Germans and Japanese thought they could demoralize our troops by dropping essentially pornographic leaflets showing what the 4-Fs were doing to their wives and girlfriends back home while our soldiers were fighting in Europe and the Pacific. It turned out to be a morale booster. Our troops were looking forward to the next comic strip with nekkid ladies (and were disappointed when they didn’t come because the Air Corps had shot down the Japanese or German plane).
nk (db4a41) — 5/20/2010 @ 7:48 amnoyk:
The fact that Seuss denied that interpretation doesn’t mean it’s wrong, even to the Goldsteins of the world. If you think that’s what Seuss meant, then you can espouse that interpretation consistent with the theory of intentionalism.
Patterico (cbd8b7) — 5/20/2010 @ 8:03 am“Leftist academics support textualism as a statutory interpretation method?!”
Patterico – NO, NO, NO. You have it all wrong. According to Jeff G.’s new description of what you are doing, which you must after all accept as correct to proceed after he privileges your intent, you are actually using intentionalism by interpreting the text you are reviewing, even if you are explicitly disclaiming any review of the intent of the authors. How could you fail to understand that simple logic?
daleyrocks (1d0d98) — 5/20/2010 @ 8:06 amComment by Some chump — 5/20/2010 @ 7:17 am
I would say that Congress should not be able to ban human sacrifice where the victim is willing.
Soronel Haetir (f21d6f) — 5/20/2010 @ 8:12 amI think we can summarize intentionalism this way:
Intentionalist: Look, you gotta understand what I meant and not what you heard.
Me: Is that in the Ten Commandments?
Intentionalist:
Honest Intentionalist: Yeah, I’m a jackass.
Me: No need to state the obvious.
nk (db4a41) — 5/20/2010 @ 8:21 amStatute: So is that $100,000 really $100,000? Could I get a simple yes or no?
Intentionalist:
daleyrocks (1d0d98) — 5/20/2010 @ 8:35 amnoyk:
The fact that Seuss denied that interpretation doesn’t mean it’s wrong, even to the Goldsteins of the world. If you think that’s what Seuss meant, then you can espouse that interpretation consistent with the theory of intentionalism.
Comment by Patterico — 5/20/2010 @ 8:03 am
How interesting — how? (no sarc)
A link to a similar argument in another thread is fine; don’t bother making a whole time consuming argument — though I lurked in those other threads, I don’t see how any argument for intentionalism supports a different reading of Seuss.
[Am about to lose Internet here for a few hrs so pardon me while I disappear; will check in later tonight–noyk]
no one you know (196ed7) — 5/20/2010 @ 12:27 pmnoyk:
The key is understanding the difference between intent and interpretation. Under the intentionalists’ theory, speakers fix the intent of their words, but may be unreliable interpreters of that intent. They could be lying or mistaken about their intent. As long as you are appealing to their intent — trying to decide what they meant when they said it — you are perfectly entitled under intentionalist theory to tell the speaker his interpretation of his own words is wrong.
Patterico (cbd8b7) — 5/20/2010 @ 1:05 pmnoyk:
Intent is implicit in any communication process. When one sets out to exchange information the beginning of the process is the intent to exchange and the object is the content thereof. Intent is not a process or technique it is integral to the act.
The question arises when one sets out to determine the inscribed intent. The intentionalist accepts any and all efforts to determine intent, even including questioning the veracity of the speaker, as long as the effort is directed at the intent of the speaker and not used as a ruse to substitute another’s intent.
jls (3b1a14) — 5/20/2010 @ 1:44 pmDRJ: Where are you going with this?
We can’t know, since we can’t necessarily infer intent from the text of his response, or from the [con]textual history of it. He can answer, of course, and we can discuss what the plain meaning of his words is, and that meaning is important; whether he’s going somewhere (and where, if anywhere, he’s going) is a matter of his intent, not of his textual response.
Joel Rosenberg (ab94ff) — 5/20/2010 @ 2:39 pmStatute: “Yeah . . . but the part where you say that an interpreter can ‘dismiss’ any ‘individual intentions that don’t get signaled’ — isn’t that just another way of saying that the judge can and should ignore lawmakers’ private intentions in favor of the plain meaning of the text? And isn’t that, well, textualism? And isn’t that what Frey has been advocating all along?”
Intentionalist: You create a divide where none exists. If the seeker is examining the text for the purpose of discovering the inscribed intent then he is an honest textualist and an intentionalist. If on the other hand the seeker is manipulating the text by stretching the radius of the words or otherwise altering the meaning he is not interpreting, not an honest textualist, nor is he an intentionalist.
jls (3b1a14) — 5/20/2010 @ 3:03 pmStatute: “I just don’t get it. If you’re all of a sudden arguing that intentions that don’t get signaled can be ‘dismissed,’ then what the hell have you been arguing about all this time?”
Intentionalist: The process, the process, the process. ….”Again, everyone is an intentionalist. The trouble is with the description of the textualist methodology and its institutionalization: because such a description errs in noting what it is doing, and that error of description leads to errors of application (compare: the text means whatever its “words” “say” regardless of the intentions of those who wrote it; vs. the text as interpreted appears to signal the intent of its writers/ratifiers thus) that are dangerous and easily exploitable.” J. Goldstein (5/9/2010)
jls (3b1a14) — 5/20/2010 @ 3:23 pm24.Statute: “Yeah . . . but the part where you say that an interpreter can ‘dismiss’ any ‘individual intentions that don’t get signaled’ — isn’t that just another way of saying that the judge can and should ignore lawmakers’ private intentions in favor of the plain meaning of the text? And isn’t that, well, textualism? And isn’t that what Frey has been advocating all along?”
Intentionalist: You create a divide where none exists. If the seeker is examining the text for the purpose of discovering the inscribed intent then he is an honest textualist and an intentionalist. If on the other hand the seeker is manipulating the text by stretching the radius of the words or otherwise altering the meaning he is not interpreting, not an honest textualist, nor is he an intentionalist.
Poor Doofus Being Tried: Your Honor, all I had was the text of the statute and, look here, I done all it told me to.
Intentionalist Judge: That’s your tough titty. You should have gone to the Jedi mind-reading school.
nk (db4a41) — 5/20/2010 @ 3:24 pmnk-
Poor Doofus: “done all it told me to”
Intentionalist Judge: Mr.Doofus, i reccomeend you get your majic decoder ring cleaned, quite listening to talking “statutes” or hire a better lawyer.
jls (3b1a14) — 5/20/2010 @ 3:42 pmnk-
Poor Doofus: “done all it told me to”
Textualist Judge: Mr.Doofus, You should be aware that you are torturing the English language here, Furthermore that torture is conventionally defined as a serious crime resulting in loss of magic decoder ring and banishment to the Jedi mind reading school.
jls (3b1a14) — 5/20/2010 @ 4:04 pmjls – Are you making an argument or just misstating both positions? It’s very hard to tell.
daleyrocks (1d0d98) — 5/20/2010 @ 4:49 pmI got this from Ann Althouse’s site.
She was discussing Rand Paul’s position on property rights… which as I understand is that Paul considers private property rights as similar to rights to the freedom of speech.
A property owner can exclude blacks from his establishment, and no matter how reprehensible this might be, the government has no right to tell him who he has to serve.
I submit that in the above quote she was challenging them to prove their intent- and it got out of hand as those things do when racism is looming over the conversation.
Steve G (7d4c78) — 5/20/2010 @ 4:50 pmAfter all, the text sure looks racist and it is easy to browbeat anyone who defends it.
daleyrocks-
The two posts to nk were light hearted banter. I liked his jedi mind-reading comments so i responded in kind.
My comments as the Intentionalist were a serious response to Patrick’s post.
jls (3b1a14) — 5/20/2010 @ 5:34 pm“My comments as the Intentionalist were a serious response to Patrick’s post.”
jls – I took them as such and had trouble unpacking them or relating them to the recent discussions, but that might just be me.
daleyrocks (1d0d98) — 5/20/2010 @ 5:47 pmComment by Patterico — 5/20/2010 @ 1:05 pm
Thx to both of you for the explanation; appreciate it.
no one you know (14208b) — 5/20/2010 @ 6:07 pmdaleyrocks-
If you have any questions i would be happy to elaborate.
jls (3b1a14) — 5/20/2010 @ 6:19 pmjls,
Evidently you completely missed the central question I am asking: what if the text does not reflect the intent, and the judge learns this? In other words, what if he is faced with a choice between going with the intent or the plain meaning of the text (i.e. how it would read to a reasonable audience).
I had thought intentionalism meant that you would discern the meaning according to the intent, regardless of how it’s signaled. Which raised the issue of how you figure intent when intentions are divided and incompatible.
Goldstein purported to address that by saying you can “dismiss” any unsignaled intent. (!!) Sounds textualist to me!
Patterico (c218bd) — 5/20/2010 @ 6:24 pmI think that if we can separate the question of Judging from the question of Communicating for the moment we may make some progress:
Earlier I said: Intent is implicit in any communication process. When one sets out to exchange information the beginning of the process is the intent to exchange and the object is the content thereof. Intent is not a process or technique it is integral to the act.
The question arises when one sets out to determine the inscribed intent. The intentionalist accepts any and all efforts to determine intent, even including questioning the veracity of the speaker, as long as the effort is directed at the intent of the speaker and not used as a ruse to substitute another’s intent.
Based on your response to the same question I believe you agree with the above. If so, then when Communicating (let’s assume person to person for the moment) we interpret the text plus any additional information to arrive at the speakers intent. If the text is not consistent with the intent as discovered by other means we weigh the information to arrive at a conclusion. In either case our focus is on discovering the intent of the communicator.
This all seems obvious and I assume you agree but it is worth asking.
If this is agreeable then I will address as best I can the Judging question.
jls (3b1a14) — 5/20/2010 @ 7:03 pmjls: have you read my recent posts on the topic? I would like to suggest that you do if you have not. I don’t have a lot of time to restate all the arguments, and it sounds like you’re restating a distinction I already made.
Patterico (c218bd) — 5/20/2010 @ 7:07 pmNah. Jeff’s trying to make a mountain out of a molehill. Ok, you’re not understood, but you’re the actor, and how come it’s the hearer’s responsibility? Just say it again. Or just don’t tell me nothing in the first place.
nk (db4a41) — 5/20/2010 @ 7:09 pmjls – I think the problem is that you are reframing the entire debate and using a different vocabulary than has been used throughout. I don’t understand why you are doing that. It would be much easier to understand you if you attempted to communicate using the hypotheticals and terminology already used to make sure everybody is on the same page.
daleyrocks (1d0d98) — 5/20/2010 @ 7:25 pmjls – It would also at least demonstrate you have read some of the posts.
daleyrocks (1d0d98) — 5/20/2010 @ 7:27 pmI have read your recent posts. What i was never sure of was your understanding of the basic communication process…. Thus the question.
Your earlier response in this thread lead me to believe that you would agree with my formulation.
Apparently not. I will re-read your posts to find the distinction you reference.
jls (3b1a14) — 5/20/2010 @ 7:45 pmjls, statutes are not “communication”.
SPQR (26be8b) — 5/20/2010 @ 7:51 pmdaleyrocks-
Thanks for the helpful hints.
Another time perhaps.
jls (3b1a14) — 5/20/2010 @ 7:57 pmSPQR-
Typically, statutes command or prohibit something, or declare policy… aka “Communicate”
Am i missing something?
jls (3b1a14) — 5/20/2010 @ 8:01 pmjls, yes you are.
Statutes do not communicate ideas. They are not a “medium” of communication. Statutes are functional. They describe a legal framework that is compared to individual situations of a legal nature. The result is a legal conclusion. Either they work or they do not work but there is no communication.
SPQR (26be8b) — 5/20/2010 @ 8:03 pmSPQR-
Interesting.
My working assumption is that any document that is used to “describe a legal framework”. Is being used as a medium of communication. i.e. Transmitting an idea from one person to another.
daleyrocks- Is this what you mean?
jls (3b1a14) — 5/20/2010 @ 8:14 pmjls – I disagree with SPQR on this point. I think legislation, statutes and documents are just and other form of communication as you say. They are meant to embody agreements between parties with respect to contracts, for example, enabling the intent of Congress with respect to legislation, etc. In the private sector, you often see documents close with a phrase along the line of this contract represents the entire agreement. Absent a dispute or ambiguity, why is there any need to look beyond the plain or conventional meaning of the words on the page to understand what they mean?
daleyrocks (1d0d98) — 5/21/2010 @ 6:57 amIf you get down the bare bones, “it just ain’t going to happen”. People will not accept a convention where the speaker’s intent is more meaningful than their personal understanding of words their parents taught them in the cradle. I think Jeff is pursuing a dead end.
nk (db4a41) — 5/21/2010 @ 7:02 amThey are just another form of communication, as they have to communicate something. But I think the debate has highlighted the aspects of these forms of communication that make it impossible to demand that judges ascertain a single “intent” from the mass of conflicting intents and non-intents that the various lawmakers have. Which is why we resort to the text, and pay no attention to any intent not reflected there.
Which, I was shocked to learn, Goldstein apparently agrees with — since he said intent not signalled could be “dismissed.”
Patterico (c218bd) — 5/21/2010 @ 7:22 amWhich leaves me wondering just what the heck he is arguing. Scalia is wrong to say he doesn’t care about intent, just the text; because he does care, as we all do; … but when the intent is not signalled, it can be “dismissed”?
And that’s different from what Scalia is saying?
Patterico (c218bd) — 5/21/2010 @ 7:24 am“Which, I was shocked to learn, Goldstein apparently agrees with — since he said intent not signalled could be “dismissed.””
Patterico – But if he is saying intent is always implicitly signalled in the plain words as jls suggests, why the heck do you have to search it out? Doesn’t that make his argument completely circular? Perhaps jls will report back from Jeff.
daleyrocks (1d0d98) — 5/21/2010 @ 7:48 am“Patterico – But if he is saying intent is always implicitly signalled in the plain words as jls suggests …”
Well, it obviously isn’t always signaled and the point of the discussion is what to do when it isn’t.
Sometimes Goldstein’s rhetoric suggests he agrees with me, like when he says there is a legal convention that legal language be conventional, and if lawmakers do not signal their intent clearly and according to these conventions then a judge will hold them responsible.
But if you rephrase that conclusion as the judge saying that he is going to enforce the law according to a reasonable reading of the plain text, and ask Goldstein if that’s justified, you get a heaping helping of dodging, weaving, and evasion. “Where are you going with this?” in other words.
Patterico (9bbf77) — 5/21/2010 @ 8:26 amdaleyrocks-
Jeff’s focus is on communication and specifically how language works in the communication process. His thesis is very simple and defines communication in terms of the speakers intent. (as Pat pointed out in (“Sure, if he defines it that way…”) thus he privileges the speakers intent when interpreting and asserts that any other assignment of meaning isn’t interpreting at all.
When it comes to judging, Jeff is not dogmatic. He supports whatever works as long as the “speakers intent” is respected in the communication process. He concedes that if the legal convention is to privilege convention when signaling intent then it is proper for a Judge to find meaning in the plain text. By Jeff’s definition at this point a textualist and an intentionalist are the same.
He doesn’t argue against “Textualism” as an interpretive scheme. He takes issue only if your brand of textualism fails to respect the “speakers intent”:
”Again, everyone is an intentionalist. The trouble is with the description of the textualist methodology and its institutionalization: because such a description errs in noting what it is doing, and that error of description leads to errors of application (compare: the text means whatever its “words” “say” regardless of the intentions of those who wrote it; vs. the text as interpreted appears to signal the intent of its writers/ratifiers thus) that are dangerous and easily exploitable.” J. Goldstein (5/19/2010
jls (3b1a14) — 5/21/2010 @ 9:20 amPatterico-
But if you rephrase that conclusion as the judge saying that he is going to enforce the law according to a reasonable reading of the plain text, and ask Goldstein if that’s justified, you get a heaping helping of dodging, weaving, and evasion. “Where are you going with this?” in other words.
If your “reasonable reading of the plain text” is limited by what you believe to be the intent of the writer/ratifiers then Goldstein agrees with you and agrees the reading is justified.
(At least that’s how i see it)
jls (3b1a14) — 5/21/2010 @ 9:33 am“Jeff’s focus is on communication and specifically how language works in the communication process. His thesis is very simple and defines communication in terms of the speakers intent.”
jls – SHUT. UP. REALLY?
“He concedes that if the legal convention is to privilege convention when signaling intent then it is proper for a Judge to find meaning in the plain text.” What does legal convention privileging convention mean?
“By Jeff’s definition at this point a textualist and an intentionalist are the same.”
jls, if you look at the progress of the threads, that is far from where Jeff started out. The contortions he made to arrive at such a point essentially rebutted the arguments with which he began or rendered them nonsensical to any rational observer.
daleyrocks (1d0d98) — 5/21/2010 @ 11:28 amdaleyrocks-
I am definitely not sure of what you meant by “jls – SHUT. UP. REALLY?” Since you ended the statement with a question mark and followed it with a few more questions i assume your intent was meant to be taken as sarcasm. It could also be a cleaver demonstration of your grasp of the difference between a disembodied textualist and an intentionalist. I don’t really know if you are that cleaver but it could be. The meaning i impute to you is “jls- That’s obvious.”
What does legal convention privileging convention mean?
When we hear and interpret a speaker for the purpose of discovering their intent we make a choice of decoding schemes. One choice is to hear thru your personal decoder…. Put nicely by nt earlier as “their personal understanding of words their parents taught them in the cradle”… A second choice is to decode using a decoder that matches what you believe the speaker has used….. i.e. “jls- Shut.Up.Really?” is interpreted to mean “That’s obvious”…. A third choise is to use the local conventions. That would apply if for example there was a common phrase used on this site that carried special meaning like “Where are you going with this?”
That brings me to this: If a community adopts a convention to priviledge (expect to be used) the local convention for decoding and the local convention is “legal” you end up with the odd look phrase above.
daleyrocks- I haven’t followed the whole history of this debate but i do read both sites and enjoy each style. I have engaged Jeff G. on his site and he has been generous with his time and patience. I feel like i understand his perspective. I am trying to understand Patterico’s. So far the difference between the two appears to be more stylistic than substantive. I think i know why. I could be wrong.
jls (3b1a14) — 5/21/2010 @ 5:36 pm“What does legal convention privileging convention mean?”
jls – You are correct that I was being sarcastic, but all I see is a use of terms without explanation of differences, nor an acknowledgement of the evolution of Jeff’s argument over the course of the debate, other to note that you did not follow it. Based on Jeff’s starting point, it is pretty hard to reconcile his ending point and believe they are part and parcel of the same theory unless at least one end was complete bullshit.
daleyrocks (1d0d98) — 5/21/2010 @ 10:23 pmdaleyrocks- Let me try again.
Rephrased- If in the legal community a word or phrase has taken on a fixed or conventionally understood meaning and the rule of use is to always assign that meaning, then it is proper for a judge to assume that meaning when reading the plain text.
As far as history goes. I understand that this debate started over the “I hope he fails” issue. I haven’t followed it diligently but i enjoy the language debate and it is interesting to see how it has morphed.
jls (3b1a14) — 5/22/2010 @ 8:38 amdaleyrocks- A question for you.
This suggests that textualists believe that intentionalists are looking to substitute the “speakers intent” for the plain text reading. While conceding that it occasionally has that appearance (sarcasm for example) I contend that is a misreading.
My understanding is that intentionalists look to the plain text as the primary source but use “intent” cues to resolve ambiguity and fix the meaning in the language. Thus “intentionalism” has the effect of narrowing the interpreters options will keeping the focus on the “speaker” as the source of meaning.
What do you think?
jls (3b1a14) — 5/22/2010 @ 9:10 amAnd that’s why I think Jeff’s theory cannot be unified or general, but only special in some narrow areas of communication, because, without necessarily substituting but even merely merely flavoring, people hear what they understand, as a general rule, and not what was intended them for them to hear.
nk (db4a41) — 5/22/2010 @ 9:42 amYou guys seen “Cool Hand Luke”? Now we could take the entire dialog of that movie and from “Takin’ it off, over here, boss”/”All right, take it off over there, Luke” to “What we have here is a failure to communicate”, it can be a lesson on the effective use and understanding of speech.
nk (db4a41) — 5/22/2010 @ 9:45 amnt- “people hear what they understand”
No argument with that. The question is how they come to “understand” and if there should be a preferred approach. Jeff’s theory is that we should privilege the speakers intent over our own or any other when assigning meaning. He’s not saying it is the only way to actually do it but he is saying that it is the only coherent way.
jls (3b1a14) — 5/22/2010 @ 11:08 amSorry nk, i have been referring to you as nt.
Now, if you were a true textualist you would have read right past and assumed i was referring to someone else but your inner intentionalist privileged my “intent” over the “plain text” and whalla communication happened. It’s just the way it is if the purpose of communication is to understand the speaker.
jls (3b1a14) — 5/22/2010 @ 11:24 amAs daleyrocks has noted, the theory has changed in response to the issues I raised, such that we are told that intentionalism embraces “dismissing” intent in certain contexts when it is not properly signaled. That’s a new one and I predict it will be walked back.
As for your characterization, until Jeff did his soon-to-be-walked-back 180, it was clear that plain text never overrules intent when it comes to meaning. Jeff acknowledges that most people, including intentionalists, start with the plain text. But if they learn with certainty that the intent was different from the plain text, they go with the intent. (Indeed, they simply redefine text as the intent, so to them there is never a conflict.)
This is a proper approach in many scenarios, and allows communication of code, irony, etc.
It does not work for legislation, as I have shown. Private intent cannot trump public meaning, or there is no rule of law — only rule by men.
Patterico (c218bd) — 5/22/2010 @ 12:01 pmPatterico- Thanks for the response.
I understand you agree that Jeff’s ideas about privileging the speakers intent is the proper approach in general communication:
But breaks down when it come to legislation:
The question comes when “public meaning” is not clear or is ambiguous. How do we gain clarity and assign meaning?
jls (3b1a14) — 5/22/2010 @ 12:56 pmThat assumes there is a collective legislative intent for a specific law, but I suspect that’s uncommon.
DRJ (d43dcd) — 5/22/2010 @ 1:00 pmSometimes the people who are charged with enforcement of the “public meaning” get a little out there and one must revert to private intent.
Charging Mark Steyn with hate speech crimes would be an example of an attempt to rephrase the public meaning
Steve G (7d4c78) — 5/22/2010 @ 1:04 pmThis may be a little weird so bear with me:
Imagine three wheels, each imprinted with a word to form a three word sentence. When you turn the wheels the words stay the same but alternative meaning are shown for each word.
You discover that it is possible to set the wheels in such a way as to form different meanings from the fixed three wheels.
How would you determine which meaning to select under the three following scenieros:
A. You found the devise in the woods.
jls (3b1a14) — 5/22/2010 @ 1:46 pmB. Your friend gave you the devise.
C. Your church choir gave you the devise.
I am confused about what you mean by “devise” and “scenieros.”
Patterico (9bbf77) — 5/22/2010 @ 5:10 pmDevise = Device
Scenieros = Scenarios
jls (3b1a14) — 5/22/2010 @ 5:20 pmThe wheel is rigged?
It’s rare when a scenario or a hypothetical or even legislation doesn’t have at least a degree of intent to rig the result.
But I’d go with B.
Steve G (7d4c78) — 5/22/2010 @ 5:20 pmI don’t sing
Steve G-
The three word sentence remains the same, only the meaning changes as the wheels are turned.
“B” is a good answer because it means you have a friend but incorrect.
Your comment about “intent .. rigs the result” shows promise….
Thanks for playing.
jls (3b1a14) — 5/22/2010 @ 5:36 pmAh
So choosing “B” is that looking out over a crowd and picking one with whom you agree.
Choosing “C” would be looking out over a crowd and finding a group with whom you agree
“A” is the textualist answer… although in the end, who knows what the original creator of the wheel intended
Steve G (7d4c78) — 5/22/2010 @ 6:14 pmSteve G-
Close but no cigar.
Hint: The answer is not “A”,”B”, or “C”.
Further Hint: Under scenario “A” where you found the device in the woods you could assign any meaning you want because absent a purpose just about any meaning will do. Further, since you are a reasonable fellow whatever you decide you could describe as a reasonable fellow rule.
Again, Thanks for playing.
jls (3b1a14) — 5/22/2010 @ 8:30 pmFurther Hint 2:
Scenario “B” where the communication comes from a friend you would look for intent cues to resolve the ambiguity. Generally, if the intent was clearly signaled in the text (meaning one and only one possible interpretation) then you go with that. If the local convention is to use the three words in one and only one way (public meaning) then go with that. Other clues might be prior use, context, idioms and knowledge of the speaker.
jls (3b1a14) — 5/23/2010 @ 5:43 amPatterico –
Above i asked:
You stated earlier that you and Jeff were in agreement on the role that intent plays in setting meaning when dealing with general communication but not when it comes to legislation. I posed the three wheel thought experiment and posted my response to Scenarios “A” and “B”. I believe you would generally agree with my characterization of the two scenarios. Further, i do not believe that you would endorse Scenario “A” as a proper judging approach.
Based on my information i infer the following:
1. You believe there is an alternative communication process that does not depend on intent (either the speakers or the listeners) to assign meaning when the text is ambiguous.
or
2. You would endorse Scenario “A” (viewing the text as a detached not “intended” message) as a proper judging approach under certain circumstances.
A third possibility is that you actually agree with Jeff (or he with you as the case may be) at this point but given the history of fireballs you would rather “mess with his head” than give him the satisfaction of a resolution.
Care to elaborate?
jls (3b1a14) — 5/23/2010 @ 10:38 am“at this point but given the history of fireballs you would rather “mess with his head” than give him the satisfaction of a resolution.”
jls – Since you haven’t followed the debate by your own admission, why the fark would you infer something like this?
I can’t speak for Patterico, but given the civil rules of debate he imposed here and the opportunities for resolution offered along the way, I believe his desire for reaching understanding was genuine. Given the rejection his efforts met with, the nonstop insults and mockery from the PW side, as well as moving goal posts in the debate, who knows his current attitude. For a latecomer to form a judgement based on the jaded commentary of one side, however, is ludicrous.
daleyrocks (1d0d98) — 5/23/2010 @ 5:10 pmdaleyrocks-
I inferred points “1” and “2” from the information Patterico provided.
Patterico comes across as truly interested in the topic and open to persuasion. I see him representing the intentionalists point of view in a fair way on this site and looking to understand.
I also see a lot of “history/fireballs” reflected in the comments so i offered the third possibility as an aside.
No judgment or offense intended.
jls (3b1a14) — 5/23/2010 @ 5:39 pm“No judgment or offense intended.”
jls – That’s how I read your intent given the admission you have not followed the debate. Setting up your own hypo and inferring answers based on a limited following of a debate, a least one side of it, is rendering judgment. Some people might call it erecting strawmen.
daleyrocks (1d0d98) — 5/23/2010 @ 5:53 pm“Some people might call it erecting strawmen.”
A straw man argument is an informal fallacy based on misrepresentation of an opponent’s position.
No judgment intended. No misrepresentation of Patterico’s positions. The facts are right in front of us. I have stated what i believe to be his positions and i am asking for confirmation or clarification.
jls (3b1a14) — 5/23/2010 @ 6:12 pmSummary: (Attempted synthesis between Patterico and Goldstein)
Patterico argues that we have a choice of methodologies when it comes to communication: “Intent based” and “Text based”
“Intent based”: you look through the words to see into the mind of a particular speaker.
“Text based”: you look through the words to see into the mind of a generic speaker.
Patterico concedes that in general communication it is appropriate to use “intent based” because there is a particular speaker to interpret ( it allows communication of code, irony, etc.). When it comes to legislation the “speaker” is a group of people and there is no particular mind to see into so we substitute a generic speaker. To do otherwise would be to privilege “private intent” over “public meaning”.
J. Goldstein argues that intent is implicit in all communication. Whether you use “Text based” or “Intent based” when you “look through the words to see into the mind” you are interpreting for the purpose of discovering intent. The only difference is whether you are interpreting a particular speaker or a generic speaker.
He concedes that when it comes to legislation the “corporate intent” is difficult to discover. He also concedes that it is proper to conceptually substitute a generic speaker as long as the “community conventions” allow for a reasonable definition. He is a pragmatist in this area and supports whatever works.
Goldstein asserts that there is no important difference between “Intent based” and “Text based” when properly understood and defined as above. His concern comes when Textualist improperly describe what they are doing and claim they can discover meaning without resort to intent.
Resolved:
When Textualists: “look at the statutory structure and hear the words as they would sound in the mind of a skilled, objectively reasonable user of words.”
They are also saying they: “look at the statutory structure and assign meaning to the words as they would be understood in the mind of a (skilled, objectively reasonable) generic person.”
They are also saying they: “look through the words to see into the mind of a generic speaker”
AND it’s all good.
jls (3b1a14) — 5/24/2010 @ 11:40 amIf I put it that way it was a mistake.
I have no idea what he thinks any more because he has shown that his answers are protean (“Protean Wisdom”!) and will change to win the current argument regardless of how they fit previously expressed views (or don’t). I think he believes if he couches the answers in enough gobbeldygook and opaque prose, the inconsistencies will not be obvious. The mind boggles when he says something like this:
I confess that I find it impossible to reconcile this view — that interpretation of any kind, legal or otherwise, need not take account of unsignaled intent — with his oft-stated view over the years that “interpretation” must always appeal to the intent of the author. The idea that unsignaled intent is something “we need not worry about” in conducting anything called “interpretation” (legal or otherwise) is not something I have seen him address “time and time again” — or indeed ever.
Nor is it particularly easy to take this guy seriously when he says something this off–base about what I believe:
Wrong-o, pal. I guess when you think you can tell Scalia he cares about the legislative intent when he says he doesn’t, you think you can misstate my views this badly and get away with it. But, to quote Goldstein: “you don’t get to define my intent.” I know what I meant and this is not it.
Both Scalia and I have said that we don’t CARE what the legislative intent was if it is not expressed in the text so that a reasonable audience could understand it. Goldstein makes up out of whole cloth an unspoken understanding on the part of Scalia and me that we believe legislatures always agree to express their intent conventionally. But Scalia and I have been very clear: even if we concluded that the legislative had NOT agreed to signal its intent conventionally, we would not care. We would interpret the text of a statute according to the fair reading that the public would give the text at the time of its promulgation.
I have expressed frustration that Scalia’s very clear statements to this effect were casually brushed aside by Goldstein, and now he is brushing aside my equally clear statements just as casually. The clown nose (here the intentionalism nose) is off — and Goldstein presumes to define my intent for me, despite the fact that the speaker is right here telling him that he is wrong.
Again, the situation we are discussing — the one addressed in all my hypos, from different angles — is one where we KNOW the intent and KNOW it was not expressed in the text in a way that a reasonable person could understand it. Can such intent be ignored?
Today’s answer from Goldstein: yes! Yesterday’s answer from Goldstein: NO! and to say yes would be dangerous! Tomorrow’s answer from Goldstein? It’s anybody’s guess.
So don’t try to reconcile my views with Goldstein’s. It’s a losing battle. He presumes to tell me what I think and gets it 100% wrong. He issues new (and no doubt temporary) rules about how we can all of a sudden ignore unexpressed intent in conducting “interpretation” which he has always claimed must appeal to intent.
And he has still never apologized to Leviticus for lying about his not returning to a thread that Leviticus returned to 7 times.
I guess Leviticus should be grateful that Goldstein didn’t threaten him physically or alter his comments on his site.
Patterico (c218bd) — 5/25/2010 @ 7:23 amPatterico- Thanks for the feedback. I read what you say and i read what Jeff says. They sound different but appear to mean the same.
For example:
Jeff’s answer (sans fireballs):
How do i misunderstand this?
jls (3b1a14) — 5/25/2010 @ 8:03 am“Let me be clear: as I have always said, legal interpretation can ignore intent if it is not clearly expressed in the text.”
Patterico (8c0105) — 5/25/2010 @ 8:06 amMeans:
Granted that this phrasing is open to interpretation but having read Jeff i am sure this is what he means. He is dogmatic when it come to the role of intent in assigning meaning.
jls (3b1a14) — 5/25/2010 @ 8:34 amBetter phrasing: (The first appears to beg the question)
Means:
“Let me be clear: as I have always said, legal interpretation can ignore poorly expressed intent.”
Implied:
Unsignaled = Poorly expressed.
jls (3b1a14) — 5/25/2010 @ 8:55 amLet me go to your larger point:
Hers is a live example:
Earlier in an exchange on this thread with Daleyrocks i said:
His response:
I then interpreted his intent and asked if I was correct. He agreed that “SHUT. UP. REALLY?” meant “That’s obvious.”
At this point I had a situation where the plain text reading suggested one thing but further “intent cues” said the opposite which creates the situation you reference:
If the purpose of the exchange is to “communicate” I privilege the intent and proceed with the dialog. If the purpose is other than to “communicate” I can assign whatever meaning I care to argue and proceed to whatever purpose I choose.
Isn’t Jeff’s point obvious?
jls (3b1a14) — 5/25/2010 @ 10:20 amUPDATE:
When i said:
“Isn’t Jeff’s point obvious?”
I meant to say:
“How can it be otherwise?”
Thank you.
jls (3b1a14) — 5/25/2010 @ 11:01 amWhy are you talking about everyday conversation when I am talking about legal interpretation of statutes?
Patterico (8c0105) — 5/25/2010 @ 1:31 pmIf I put it that way it was a mistake.
jls (3b1a14) — 5/25/2010 @ 3:39 pmConversation between a Gazelle, a Bulldog and a Turtle:
Turtle: Would you mind passing the salt?
Gazelle: “Pass the salt” does not mean both “give me the salt” and “walk around and by the salt” in a specific instance intended by a specific intender unless he wishes it to mean both. Your job as an interpreter, should you wish to interpret, is to decide what you think he meant.
Now, you can reasonably conclude he meant both. But that’s not the same as saying that what he said means both.
He meant appeals to a subject. What he said appeals to an object.
Bulldog: Wrong-o, pal. I guess when you think you can tell Scalia he cares about the legislative intent when he says he doesn’t, you think you can misstate my views this badly and get away with it. But, to quote Goldstein: “you don’t get to define my intent.” I know what I meant and this is not it.
Turtle: Houston we have a problem.
jls (3b1a14) — 5/26/2010 @ 12:55 pmPatterico:
FYI here is Jeff’s response to the proposed resolution above.
And my response to Jeff’s comment.
jls (3b1a14) — 5/26/2010 @ 1:09 pmjls:
How about linking your false claim that you have been banned here, and that the thread has been somehow “scrubbed”?
Yeah — so weird that it never happened.
Patterico (c218bd) — 5/28/2010 @ 12:22 pmPatterico:
No false claim but perhaps an incorrect conclusion.
After my posting #92 on 5/26/2010 above, the next time i accessed the thread it was truncated at #51 5/21/2010. I also noticed the “Recent Comment” log was frozen to what appeared to be the 5/21/2010 date. It stayed that way for at least a week.
When i tried to post i got an error message saying something to the effect that i was “not authorized on this server”.
It certainly had the appearance of total banishment if not the fact.
I prefer the explanation of technical difficulty and am glad to hear my conclusion was incorrect.
Thanks for the clarification.
jls (3b1a14) — 6/9/2010 @ 5:50 pmI did just noticed I was banned from LGF for mentioning that I read ace of spades (no really, I barely comment there and this was my offense).
jls, Patterico chided me for not being nice enough to Chris Hooten, a very liberal person. He wants dissent. Accusing someone of acting like Charles Johnson, in banning for mere disagreement, is a very nasty attack. You owe more than “thanks for the clarification”, in my opinion. Maybe “Sorry I was a jerk to you”.
Dustin (b54cdc) — 6/9/2010 @ 5:54 pmDustin:
For future reference. How do you know if you have been banned?
I have never had the: “You are not authorized to have access to this server” response to my posts.
jls (3b1a14) — 6/9/2010 @ 6:11 pmjls,
Many other people who experienced the same issues simply e-mailed me.
And if they had left a false claim about me elsewhere, they would have the class and decency to correct it.
Without being prompted.
Patterico (c218bd) — 6/9/2010 @ 6:13 pmPatterico: I Posted this as an Update to the liked site:
jls (3b1a14) — 6/9/2010 @ 6:27 pm“For future reference. How do you know if you have been banned?”
From here, I guess you could just not threaten to hurt people and generally be less than demonic in trolling. I don’t think you can get banned here without really setting your mind to it. In other words, unless you did something that would get you banned almost anywhere, you didn’t get banned.
Server errors are commonly spitting out errors saying ‘You are not authorized to view this page.’ That’s probably actually in your browser.
I’m not going to go into the PW thing, but I think someone complaining to them about this site’s viewpoint discrimination is freaking amazing, though. I am glad you agree with me that this kind of conduct, which I experienced there, is bad. You might even be happier commenting here instead of there if you pay attention for a while and notice what I’m talking about.
Dustin (b54cdc) — 6/9/2010 @ 6:28 pm