I’m Confused
Point: Dismissing the author’s intent is bad, even when doing legal interpretation (take a deep breath; it’s all one sentence!):
Textualists who adhere to a conception of interpretation that “democratizes” a text by intending to hand it over to the public (and that’s what convention is, a public expression of the breadth of prior meanings a given “culture” has come to recognize) — even if only while doing legal interpretation — lend credence to a linguistically incoherent (and yet increasingly institutionalized) view of language that, because it claims to be interpreting without appealing to intent (even if in practice it merely hides its usurpation of that intent), promotes an idea of language wherein the interpretive community not only determines meaning, but it does so while claiming it is interpreting the author’s meaning — having first dismissed his intent as irrelevant.
You can’t beat the 119-word sentence.
Counterpoint: Dismissing the author’s intent is OK:
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, just as if you were dealing with an individual who was signaling his meaning in a way that, without recourse to proximity and some give and take, would not be readily available to a good faith interpretation (that being one that appeals to what it believes are the intentions of the author/utterer).
Point: Dismissing the author’s intent is bad:
— to which I’d say that the worry of “textualists” is unfounded — and in fact is only an issue to those who don’t understand intentionalism; while the intentionalists’ concern is very real, given that the “textualist” methodology, as they describe it, allows them to dismiss the intent of the authors, leaving the requisite intent needed to make language language to be attached somewhere, and by some agency other than the person whose message is supposedly being “interpreted.”
Counterpoint: Dismissing the author’s intent is OK:
“Private intent” would presumably be an unsignaled intent, and so not one we need worry about from the perspective of legal interpretation, for reasons I’ve made clear time and again.
Point: Dismissing the author’s intent is bad:
The intent — whatever it is an[d] however much it is — is what makes the signs signs. Difficulty in pinning down what that intent is in every instance is not a justification for dismissing it.
I’m going to sue for whiplash.
What makes this set of seemingly contradictory passages remarkable, other than the turgid prose, is the fact that they all come from the same person — and from the same post, or comments to that post.
In the field of statutory interpretation, I have argued — hopefully with more clarity than we see on display above — that if the wording of a law is clear, textualist judges don’t really care what the legislators’ intent was. Accordingly, they will dismiss (refuse to concern themselves with) legislative intent, even if that intent completely contradicts the text. A textualist says to a legislator: your text can, will, and should be interpreted according to the fair reading that a reasonable public would give your words.
Which is either a completely outrageous and dangerous notion . . . or a completely obvious and unobjectionable notion. All according to the same person, in the passages above. Depending on which one you pick.
Can anyone explain this to me? Can anyone translate the above passages into English and reconcile them?
It’s never ok to dismiss someone’s meaning when you understand it, when it’s accessible, and substitute your own is what that says.
happyfeet (c8caab) — 5/26/2010 @ 9:34 pmnot tonight Pat, i have a headache.
😀
redc1c4 (fb8750) — 5/26/2010 @ 10:00 pmspeaking of confuzzling intent this is the most America ever except for it is from the Phillipines
happyfeet (c8caab) — 5/26/2010 @ 10:04 pmfeet, you *really* need to take your meds regular like…. and come on by for a drink if you need one.
redc1c4 (fb8750) — 5/26/2010 @ 10:06 pmwe will do that some day, sir for reals
happyfeet (c8caab) — 5/26/2010 @ 10:09 pmOT (in that it concerns not intentionalism but the 119 word sentence). Field & Stream magazine used to have writer (or editor IDRE) by the name of Patrick McManus who wrote the tailpiece humor column for the magazine. He would occasionally write a wickedly funny column about some exploit from his misspent youth and you would be cruising right along until from out of left field the column would close with what would seem to be a total non-sequitor. You would look back and discover that that non-sequitor was the concluding half of the columns first sentence and that the entire three column page was one long run on subordinate clause that had been leading you further and further afield. There was just one damn period on the whole page. And the amazing thing was that – You Had Never Noticed.
Most academic writing does not reach that level of adsorption.
Have Blue (854a6e) — 5/26/2010 @ 10:20 pmi’ve got nothing planned this weekend, except honey do’s…. give me a holler.
redc1c4 (fb8750) — 5/26/2010 @ 10:21 pmI think happy is trying to detextualize the construct of the paradigm that says that the observing culture has to conform to the stated observation of the defining culture. So, if the observing culture misinterprets the defining culture, the context is lost because the observed culture exhibits behaviors that are only constant in the society of the observed. Otherwise, meaning has no construct, unless drugs are involved.
I hope this clears the matter up.
And I sincerely apologize to Pat and Jeff.
Really.
Ag80 (b97c3e) — 5/26/2010 @ 10:34 pm“Frey continues to go out of his way to try to paint intentionalism in the most difficult to understand light.”
Heh. I do not think it is Frey who is doing that Jeff.
daleyrocks (1d0d98) — 5/26/2010 @ 10:37 pm“It’s never ok to dismiss someone’s meaning when you understand it, when it’s accessible, and substitute your own is what that says.”
All my posts about legal interpretation have been about situations where the meaning is not accessible because the text does not reflect the intent. If Goldstein supports a textualist approach in those situations, he could have said so a long time ago and saved a lot of unnecessary back and forth.
Patterico (c218bd) — 5/26/2010 @ 10:42 pm“I’m going to sue for whiplash.”
PATTERICO THREATENS LEGAL ACTION!!!!!!!!!
daleyrocks (1d0d98) — 5/26/2010 @ 10:58 pmWell I think, possibly, there are still interpretations what are quite obviously not the intended one, even in constrained hypotheticals. Let’s agree those ones are wrong.
I’m tired I watched too much oilcam.
happyfeet (c8caab) — 5/26/2010 @ 11:21 pmThe apparent differences appear to turn on whether the author “signaled” his intent.
Molon Labe (640aad) — 5/27/2010 @ 12:25 amThe concept of “textualism” is intellectually dishonest bullshit.
[note: released from moderation . –Stashiu]
JEA (9f9fc9) — 5/27/2010 @ 4:14 amI agree with Molon. Patterico, aren’t you just willfully (intentionally? ha!) ignoring Goldstein’s distinction between 2 types of intent?
1) Silent, remains-in-your-head, “unsignaled” intent. Not legitimate in Goldstein’s world.
2) Public, documented-in-speeches-or-reports, “signaled” intent. Legitimate in Goldstein’s world.
Maybe Goldstein rejected this distinction, but it seemed pretty clear just from the examples you cited. I’m a textualist, but I don’t want to see you gloss over an important argument in the name of “winning”.
itouchayoface (ebad03) — 5/27/2010 @ 5:13 amPlease fix the error in the sentence where, assuming your intent, you mean to note that all the passages are written by the SAME person.
Really, Please (75feb9) — 5/27/2010 @ 5:38 amMolon Labe and itouchayoface claim they understand what is going on in the above crystalline prose. Great. Maybe they can answer a question for me, then.
Let us return to my hypothetical in which a law says a new tax applies to those making over $100,000. Subsequently, in public speeches or reports, we learn the lawmakers’ true intent as to the term $100,000.
Based on those speeches and reports, a study documents the various lawmakers’ intentions regarding the meaning of the term $100,000 in the law. Assume that the lawmakers honestly recorded their intentions in the speeches and reports. However, keep in mind that the TEXT of the law says $100,000 and not $10,000.
Here are five scenarios as to the lawmakers’ intended meaning of the term $100,000:
1) 100% intend it to mean $100,000.
2) 75% intend it to mean $100,000, and 25% intend it to mean $10,000.
3) 50% intend it to mean $100,000, and 50% intend it to mean $10,000.
4) 25% intend it to mean $100,000, and 75% intend it to mean $10,000.
5) 100% intend it to mean $10,000.
You are a judge applying Jeff Goldstein’s intentionalism principles to the legal interpretation of this law. In each case, what is the legal meaning of the term “$100,000” in the law?
Hell, what is the meaning, period? Forget “legal meaning.” How does one interpret the language in question to arrive at the legislators’ intent?
itouchayoface: Since you suggest that I am willfully and perhaps intentionally ignoring a key Goldstein distinction, you have an additional assignment: prove your contention or withdraw it. In giving your answers, I would like citations to the passages in which you allege he has made his points so crystal clear that someone like me must be willfully ignoring his point.
Patterico (c218bd) — 5/27/2010 @ 6:13 amThere are rules of statutory construction. Why are we not discussing those? The primary rule is plain language of the statute, not intention. Looking for intent comes only after plain language fails, and it is problematic for many of the reasons outlined in this debate. How a judge should interpret a statute should be based on the rules the judge is supposed to follow. The rules have incorporated solutions for the problems being debated here.
The debate seems to be of the sort as two people arguing whether, when playing Monopoly, you can collect money for landing on Free Parking and diligently avoiding any reference to the actual rules of the game.
So look up the phrase “rules of statutory construction” on your favorite search engine and you should find some enlightenment.
Jeff M (0204be) — 5/27/2010 @ 6:15 amhow can we know that in your hypothetical where you right “$100,000” you don’t actually mean the $10,000 what the lawmakers intended to begin with?
happyfeet (c8caab) — 5/27/2010 @ 6:33 ammeanwhile the oil gushes not unlike the little president man’s dirty socialist jobs-killing mouf will at 12:40 or so eastern today
happyfeet (c8caab) — 5/27/2010 @ 6:35 amI detect a signal. I’m confused as to what the signal means.
htom (412a17) — 5/27/2010 @ 6:41 amI can do one better and prove it using only your citations above. In the two counterarguments you quoted, the author dismisses “unsignaled intent” and “intent that does not get signaled”. I think these are textual clues as to his meaning. Of the “confusing” arguments, the only two that don’t fit are the only two that refer to this unsignalled intent. Ergo, there’s your distinction.
I want to be clear: I’m on your side as a textualist. I just want to make sure you don’t gloss over a distinction that makes the other side look a little less crazy. I’m not looking to defend Goldstein, but the distinction seemed pretty clear to me from the quotes you chose. Now gimme a sec to respond to your other example…
itouchayoface (ebad03) — 5/27/2010 @ 6:50 amitouchayoface:
Those arguments do not make the distinction between intention unsignaled in the text and intention unsignaled in public speeches, etc. In addition, all of my hypos have dealt with intention unsignaled in the text of the law. You have failed to make your case that I willfully ignored a distinction that is not apparent in the text above.
How would Jeff Goldstein decide the meaning of $100,000 in the five scenarios I posited? His language is so very clear that I am sure you will find this easy to answer.
(I originally wrote that you were (willfully? Intentionally?) ignoring my example — but I just saw that I overlooked your expressed intent to address it. So my accusation was as baseless as yours, for which I apologize. That’s what I get for reading stuff in a hurry before I walk out the door.)
Patterico (c218bd) — 5/27/2010 @ 7:04 amitouchayoface – Do you have to be an intentionalist to determine whether the intent is signalled in legal or statutory documents?
daleyrocks (1d0d98) — 5/27/2010 @ 7:16 amJeff M,
I am perfectly aware of the “rules” to which you refer, which are actually not “rules” but rather guidelines that are the subject of much debate. The point of Scalia’s textualism arguments is to reject the concept of relying on legislative history for guidance because it is like looking out into a crowded room and seeing your friends, as one judge colorfully put it.
Patterico (82fc00) — 5/27/2010 @ 7:22 am“how can we know that in your hypothetical where you right “$100,000″ you don’t actually mean the $10,000 what the lawmakers intended to begin with?”
Which ones? They intended different things.
Patterico (82fc00) — 5/27/2010 @ 7:30 amMy answer: I think $100,000 means $100,000 (hope that proves my textualist creds). There’s no ambiguity; the text is clear. Done.
Now, let me reiterate that I’m not here to take Goldstein’s “side” in your spat. You want his answer, go ask him. I just want to give the non-crazy side of intentionalism it’s due. Here’s two versions of intentionalism that I can see:
Intentionalist #1: The intent only comes into play when the text is ambiguous. $100,000 isn’t. No need to resort to intent — $100,000 means $100,000. If you had an ambiguous example, such as the meaning of “undue hardship” or “with all due speed”, then intent would matter, and you textualists would be up a creek.
Intentionalist #2:The intent is always relevant as a factor in interpretation. Here it happens to go against the text. When 75% or 100% of the lawmakers meant something different then the text, we have a problem. Whatever factor in reality caused this disconnect, we can probably rely on the public understanding as well. Therefore, we interpret the law as meaning $10,000 when >75% of lawmakers meant it. This is a much more efficient interpetation of the law than stubbornly waiting for the legislature to fix a scriviner’s error.
I suspect this won’t satisfy you, since I’m not invoking Goldstein. I’m really not trying to get into the personal aspects of your debate with him. And maybe my responses stray outside the confines of your fight. I just hate to see textualism conquer over a weak formulation of intentionalism.
itouchayoface (ebad03) — 5/27/2010 @ 7:36 amdaleyrocks,
Of course you do. We are all intentionalists, according to Goldstein. Intentionalism just is! Are you trying to deny gravity makes objects fall? OK then.
The fact thst he can’t coherently address what to do on cases of divided intent without contradicting himself is beside the point. Because, gravity.
Goldstein purports to harmonize Scalia’s views with a made-up assumption that Scalia believes lawmakers have agreed to express themselves conventionally. That Scalia describes the reasoning underlying his methodology differently is of no import because, stupid Scalia, he doesn’t really understand what he is doing as well as Jeff Goldstein does.
Patterico (82fc00) — 5/27/2010 @ 7:42 amNo, but you have to be an intentionalist to care whether intent is signaled. I suspect the word “signal” throws some people off, since it sounds so post-modern and metaphysical. Replace “signaled” with “publicly written or spoken”, and I bet some of the arguments look less silly.
Reiteration: I’m a textualist, just trying to make sure we don’t win a hard-fought victory over a caricatured counterargument.
itouchayoface (ebad03) — 5/27/2010 @ 7:43 amitouchayoface:
See how entertaining it is when I allow people to make personal accusations rather than sticking to arguments? We get to spend time talking about whether someone “willfully” ignored something rather than simply making our arguments. Thank you so much for choosing to inject into the conversation the concept that I willfully ignored something.
“You want his answer, go ask him.”
I have tried asking him this question in countless ways and have received as an “answer” a pile of jumbled and contradictory verbiage. You are the one who claimed you could make sense of it (and indeed insulted me by claiming Goldstein was so clear I must be “willfully” ignoring his ever-so-clear distinctions).
So I put it to the test: if you know what he thinks based on the quotes from the post, how would he answer the questions? I am not interested in your answers because I know them; you already said you are a textualist. I want to know what you think his answers would be.
He studiously avoided giving answers to similar questions for weeks. I’m done asking him.
I appreciate your giving different possible intentionalist answers, but if you can’t tell me which one would be his answer, then perhaps he hasn’t been so clear after all.
Leave discussions of spats and fights out of it. I’m going to start deleting comments that can’t stick to the ideas and arguments again. Such comments are damned distracting and a waste of my time.
Patterico (82fc00) — 5/27/2010 @ 8:04 amI said right instead of write
oh that little bus is here gotsta go bye
happyfeet (c8caab) — 5/27/2010 @ 8:06 am“I suspect the word “signal” throws some people off, since it sounds so post-modern and metaphysical. Replace “signaled” with “publicly written or spoken”, and I bet some of the arguments look less silly.”
Publicly written or spoken where? In the text of the law? In a floor speech? In a committee meeting? In an op-ed in the New York Times? Written on the bathroom wall at a Stuckey’s on I-95?
Please tell me where Goldstein makes these distinctions clear.
Patterico (82fc00) — 5/27/2010 @ 8:16 am“You want his answer, go ask him.”
itouchayoface – I needed a laugh this morning. Thanks. No offense intended, but you clearly have not been following the debate.
daleyrocks (1d0d98) — 5/27/2010 @ 8:18 am> Can anyone translate the above passages into English and reconcile them?
Simple: Postmodernist Liberalism is about destroying, part and parcel, every legacy of Greek Culture imbued in our society and social fabric.
It is a culturally suicidal meme designed to eat away at the most basic foundations of everything which has made Western culture so dominant a force in the last 400 years, and such a positive force in human history.
Once you have that down, the idea that the above doesn’t make sense MAKES SENSE — because it’s not supposed to make any rational sense at all, it is counter-rational.
Reason is a legacy of Greek Culture.
Postmodernist Liberalism must die. Or we will. There is no other option. This is a struggle to the death, and all too many of its defenders don’t grasp that — they keep attempting to impute rational sense to their arch-nemesis.
It ain’t there!!!
IgotBupkis (79d71d) — 5/27/2010 @ 8:25 amPatterico – I think the basic problem is that you are not a member of the Guild. You do not know the secret handshake, the oaths, the code words and are therefore not entitled to point out the obfuscations, contradictions, and nakedness of the Guild members. You are an interloper!
daleyrocks (1d0d98) — 5/27/2010 @ 8:29 amP:
I’m realizing that my use of “willfully” in my first post really upset you. I’m sorry. I thought that the parenthetical containing “ha!” would have been a clue that I meant it in a lighthearted manner. Since that didn’t come through in the text, I apologize. In fact, I’ll go ahead and retract the term “willfully”. I have no insight into your state of mind (or your intent. ha!).
I’m not sure why you keep asking me what Goldstein’s answer would be. I have no idea. My intention has been to highlight stronger formulations of intentionalism and try to get people to engage with those. I thought the signaled/unsignaled distinction was pretty clear from the quotes in your post, not from the extended debate between you two. I hear your frustration with not getting an answer from Goldstein. I thought my two answers might help engage people with arguments, rather than turning things into a debate about what Goldstein’s answers would have been.
Anyhow, I’m going to get back into the thick of things. Just wanted to clarify: I have no idea about Goldstein’s personal views, and I don’t mean to attribute any ill will to you.
itouchayoface (ebad03) — 5/27/2010 @ 8:47 amMy cheek still hurts from how hard my tongue was in there 😉
itouchayoface (ebad03) — 5/27/2010 @ 8:48 amAh, here’s where I think the conflict can be clarified. The sane intentionalist believes ALL of those are signals of intent, they’re just not all equally persuasive or weighty. In fact, you’ve nicely rank ordered them according to persuasiveness. The text is often persuasive evidence of intent, especially when it’s clear (e.g. $100,000). In those cases it will clearly outweigh any other signals. Sometimes the text isn’t a clear signal of intent (e.g. “undue hardship” or “reasonable fee”). In those cases, floor speeches, committee reports, and op-eds are useful tools.
I can’t help you with the Goldstein thing. Again, I think it obfuscates things to make this a debate about whether Goldstein is clear, rather than whether signaled intent is a useful distinction. Now that the idea is out there, what do you think of it?
itouchayoface (ebad03) — 5/27/2010 @ 9:03 amReally? Jesus Herbert Christ tap-dancing in a birchbark canoe.
John (7517b5) — 5/27/2010 @ 9:36 am“Again, I think it obfuscates things to make this a debate about whether Goldstein is clear, rather than whether signaled intent is a useful distinction.”
itouchayoface – Right, that’s totally what’s going on. Remember, I’m on your side. Heh.
daleyrocks (1d0d98) — 5/27/2010 @ 9:45 amItouchayoface: Goldstein was very clear.
Patterico: No he wasn’t.
itouchayoface: Why are you making this about Goldstein?
See, it would have been one thing if you had started out saying: hey, I can’t answer for Goldstein, and I am not saying he made this clear, but here is one distinction that an intentionalist might make.
Instead, you started off saying Goldstein made a very clear distinction — at first saying it was so clear I must have willfully ignored it! (An accusation you have now withdrawn, for which I thank you.) So I said: if he was so clear, how would he address these questions. And all of a sudden you seem to be disclaiming the idea that he was clear — which is fine, except now you seem to want to pretend you never claimed he was.
Patterico (82fc00) — 5/27/2010 @ 12:18 pmI have no interest in this debate.
I just noticed that Goldstein’s apparent contradictions are resolved if you give weight to his qualifications about “signaling”.
Molon Labe (640aad) — 5/27/2010 @ 12:37 pmPatterico: The reason I think that the signaled/unsignaled distinction is clear is because those words are in the quotes you used. I’ll repeat what I said in #22: “I think these are textual clues as to his meaning. Of the “confusing” arguments, the only two that don’t fit are the only two that refer to this unsignalled intent. Ergo, there’s your distinction.” Basically, I think those words should have jumped out at you and addressed your confusion. You disagree. No problem. It’s not meant as a personal attack.
Just because I think this one distinction was clear, doesn’t mean I think Goldstein is clear on everything. I’ve noticed his language is……flowery. When you start giving me hypotheticals and assignments and asking me to channel Goldstein, I can’t help you. All I was commenting on was the language in your own quotes. However, I have offered a few intentionalist positions that I’d love you to engage with. Maybe your exhausted after all the back-and-forth. But I’m definitely interested.
itouchayoface (ebad03) — 5/27/2010 @ 1:03 pmUgh…do I hate this philosophy of language junk.
The problem with the entire approach is it fails to recognize the difference between the instrumental and non-instrumental uses of language. In fact it denies the possibility of such a distinction. For them a text is a text is a text is a text.
Such a view is, of course, nonsense. For example, any theory of law generally requires a statute to be promulgated before it can be viewed as legally binding upon individuals. An un-promulgated law would be, in reality, not a law at all, even if it otherwise looks like other functioning laws. Notice, this characteristic (i.e. its promulgated status) has nothing to do with authorial intent. It is the instrumental nature of law that places this additional condition upon a statute.
Now, the question becomes can intentionalism logically accommodate the extra-intentional requirements of law, such as promulgation, intelligibility, and specificity? I believe the answer has to be “no.” Necessarily they must view instrumental requirements as an example of “culture usurping intent!” because they are judged apart from (outside of) the hermeneutic of intent.
The implications of all this are many and disturbing, particularly since it gives “sophisticated” people an avenue to argue something like; “promulgation as an idea, since it must have also originated from the intent of an individual or corporate body in some past time period, must not be allowed to constrict the possible intentions of present individuals or corporate bodies who may wish to dispense with the idea of promulgation all together. Any attempt to ‘privilege’ such ideas must be resisted at all hazards.”
Notice, I’m not saying Jeff is making such an argument, but such an argument is not inconsistent with Jeff’s approach.
Rich Horton (b837cc) — 5/27/2010 @ 2:16 pmWhat does a textualist do if there is a contradiction in the law?
David Prince (ae51bc) — 5/27/2010 @ 2:38 pmIt’s much harder to make sense of this than Sarah Palin’s remarks frequently are.
Dave (2cf4b4) — 5/27/2010 @ 3:05 pm