Tuesday, February 16, 2016

Scalia on textualism

1. Scalia is a conservative icon. He's rightly admired for his defense of popular sovereignty. He championed consent of the governed. He championed the Bill of Rights. He emphasized separation of powers as a necessary safeguard to protect the Bill of Rights. And unlike his liberal colleagues, he resisted the temptation to abuse his power. 

2. That said, I'm inclined to disagree with the hermeneutical underpinnings of his position. The issue is interesting because it overlaps with Biblical hermeneutics. 

Now, I only have a  superficial knowledge of his voluminous output, so it's possible that I have a simplistic grasp of his position. But if I understand what he's saying, I disagree.

Many internet sources routinely attribute to him a commitment to "original intent", but from what I've read, that's a mischaracterization of his actual position. If so, it's slipshod for so many sources to describe his position in those terms. Here's how he characterizes his own hermeneutic:

The theory of originalism treats a constitution like a statute, giving the constitution the meaning that its words were understood to bear at the time they were promulgated. 
You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the Framers of the U.S. 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. 
I do the same with statutes, by the way, which is why I don't use legislative history. The words are the law. I think that's what is meant by a government of laws, not of men. We are bound not by the intent of our legislators, but by the laws which they enacted, laws which are set forth in words, of course. 
"Judicial Adherence to the Text of Our Basic Law: A Theory of Constitutional Interpretation". Speech at Catholic University of America (October 18, 1996).
http://www.proconservative.net/PCVol5Is225ScaliaTheoryConstlInterpretation.shtml

"You will see recited in opinions all the way back that the object of interpretation is to determine the intent of the drafter.  I don't believe that.  We're not governed by the drafter's intent. We're governed by laws," he told NBC News in an interview at the court. 
"Judges should not be using such extrinsic factors as, ‘What is the general purpose of the statute?’ Or ‘What did the Senate committee say when the statute was enacted?’" he said. 
http://dailynightly.nbcnews.com/_news/2012/08/22/13416169-scalia-judges-should-interpret-words-not-intent?lite

Here he explicitly pits his own view in antithetical contrast to original intent. 

3. In fairness to Scalia, I believe his position is partly in reaction to lawmakers who are overly reliant on judges. That makes lawmakers sloppy, because they count on judges to "fix" poorly written laws. And I think he takes the position that it's incumbent on legislators to clearly express their aim through clearly written laws. It is not incumbent on judges to infer what lawmakers had in mind, when they fail to communicate their intentions. To that degree I agree with Scalia.

4. That said, he posits a false dichotomy. This goes back to the so-called "intentional fallacy". William Wimsatt and Monroe Beardsley came up with that tendentious designation back in 1946. It's a masterstroke of propaganda. After all, a quick and easy way to dispose of a theory you dislike is classify that theory as a "fallacy". That's an effective, prejudicial way, to discredit the theory. If it's a "fallacy," then it deserves no further consideration. But, of course, whether that frame of reference is fallacious begs the question.

5. Scalia caricatures the search for original intent as divining the "secret meaning in the mind" of the Framers or lawmakers. But that's deeply misleading.

To begin with, humans are social creatures and goal-oriented agents. Social life would be impossible if we were unable to reliably infer human intentions from human actions. If I see somebody enter a barbershop and emerge half an hour later, I conclude that he went there to get a haircut, not to read magazines and discuss sports or politics with the barber. If I see someone with an umbrella, I conclude that there's rain in the forecast, that he expects to spend some time out of doors, and that he brought an umbrella to keep himself dry in case it rains. In theory, he could use it as a cane or a weapon against muggers, but that's not the most plausible interpretation of his actions, and in any case, those would be secondary applications.

6. Apropos (5), Scalia erects a false dichotomy between meaning and intent. It's true that strictly speaking, intent is a private mental state. But you don't need to be a mindreader to infer intent. For instance, you can ask what problem the Founding Fathers (or lawmakers) were trying to solve. That's an obvious way to get a bead on their intentions. It's perfectly reasonable to consider the purpose of a statute, or consider legislative history. That's not mindreading. That's not subjective. That's construing a legal text in light of objectively identifiable, publicly available clues. Even though intent is directly inaccessible, intent is indirectly accessible via "extrinsic factors". And that's something we rely on everyday in our social interactions. 

7. You can't separate meaning from intent, for a communicator selects the words he does to assert or convey certain ideas or emotions, or elicit a particular response in the listener. 

Likewise, meaning is context-dependent, and there's more to context than words and sentences. There's the situation that occasioned the utterance. What were the words mean to achieve? Dictionaries don't give you the context. 

Take a word like "freeze". Makes a big difference whether that's used as a noun or a command. If I say "Freeze!" because my walking companion is about to step on a rattlesnake, the sense of my statement can't be determined by a dictionary. In that case, the correct interpretation depends on exigent circumstances. 


Except in fiction, an interpreter can't compartmentalized words from the world in which they arise, and to which they refer. And even in fiction, that's not always possible. To understand the Divine Comedy, you need to understand Dante's thought world, which requires you to become informed about the actual world in which he lived. His time, place, enemies, social circle, intellectual influences. 

9 comments:

  1. That's what I vaguely recall from a college class that I took about American government: that textualism and originalism are different from each other. I recall my professor saying that Robert Bork went further than the textualists by saying that we should go with what the original authors of the Constitution meant.

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  2. I also heard this distinction before (same material you have brought forth), and was surprised, because generally and popularly it was understood (wrongly I am guessing) that Scalia was an originalist - meaning interpreting according to the original meaning at the time, which would include the intention of the words and sentences and grammar, etc. ie, the text.

    The quotes you give imply that Scalia ignored context of when the document was written, historical background. - really ?

    it is hard to understand what his view is, now that you have distinguished it from "original intent".

    His judgements were usually right, IMO. Seems like he was a sort of originalist. He definitely objected to the philosophy of seeing the Constitution as "a living, breathing document" that can change/ evolve with the times.

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  3. Yes, Scalia's wrong about textualism. (Or was; perhaps he's gotten this theoretical matter cleared up in heaven!) However, he and a staunch intentionalist originalist would have (and I'm sure he always knew this) a lot more in common, both being originalists, than the living constitution theorists.

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  4. In legal hermeneutics, however, an intentionalist like myself does have to make a few extra provisos that don't apply to other kinds of texts: If the author or authors were willfully deceptive (and this does come up in some federal laws, I'm sorry to say), then the text should be interpreted as if they were not willfully deceptive. To some extent, given multiple authorship of laws and issues such as deliberate deception and its possible effect on law, the intentionalist has to supplement his account with a "legal fiction" of a non-deceptive author with a coherent meaning in mind. (Sometimes multiple authorship gives rise to incoherence in the resulting law, which is a bit of a nightmare for the conscientious judge.)

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  5. The other important thing an intentionalist has to do is to distinguish what the law intended to _accomplish_ from what the law was intended to _mean_.

    For example: IRS regulations state as one condition of (one way of) having someone be a dependent that the person has to have been a full-time student for parts of five calendar months. It's right there in black and white: "Parts of five calendar months." Now, one can argue that the law was written at a time when that would mean that a student who was a full-time student for one semester in a calendar year (for example, a graduating senior) would have met the requirement, since most colleges' single semesters included parts of five calendar months. Hence, one could argue, the "intent" of the law was that a student who was full-time for one semester would qualify.

    But that is a different meaning of "intent" from what the intentionalist should use. The "intent" in question should be the intent the authors wanted the words to have. And by that construal, of course, a one-semester full-time student may or may not qualify, depending on how long the semesters are. Some colleges have now shortened the semester up so it includes only four calendar months. That the authors of the regulation may have _surmised_ that one semester at any college would qualify doesn't change the fact that what they _intended to say_ was "parts of five calendar months." If they happen to notice what the schools have done, they can change the regulation to "one regular college semester" or something like that.

    Similarly, to say that non-discrimination laws were intended to help non-whites doesn't change the fact that their wording appears race-neutral, and presumably at least some of the authors intended that race neutral meaning of the words, even if they intended the _social effect_ of the law to be most helpful for non-whites.

    So the textualist like Scalia does have things to teach the intentionalist about refining his use of "intent." I think in the end the textualist and the intentionalist should have very near agreement on legal outcomes if they are both following their own principles and are both being originalist generally, even though they will be getting to the outcomes by somewhat different routes.

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  6. "Social life would be impossible if we were unable to reliably infer human intentions from human actions."

    Sure, but that's going in the opposite direction. You are going from the words written back to the intention. If you need to interpret a text based on the author's intent, you need to know that intent before you know what the text means. If you can know what it means before you know what the intent was, then the intent does not play a role in interpretation.

    "You can't separate meaning from intent, for a communicator selects the words he does to assert or convey certain ideas or emotions, or elicit a particular response in the listener."

    Whether the words he selects do that does not depend on his intention that they do that. His intention can control the selection of words, it cannot control their meaning or the meaning of the whole text.

    "Take a word like 'freeze'. Makes a big difference whether that's used as a noun or a command. If I say 'Freeze!' because my walking companion is about to step on a rattlesnake, the sense of my statement can't be determined by a dictionary."

    Your intention to prevent me from stepping on a rattlesnake would be unknown to me upon reacting to it anyways. I would be reacting to the word, the tone, etc. Your intention would have controlled the utterance, but not its meaning.

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    1. "Sure, but that's going in the opposite direction. You are going from the words written back to the intention."

      

You're ignoring the fact that I specifically gave examples that don't involve words. Rather, I cited actions, from which we infer the intent of the agent. Try again.



      "If you need to interpret a text based on the author's intent, you need to know that intent before you know what the text means. If you can know what it means before you know what the intent was, then the intent does not play a role in interpretation."



      i) To begin with, my point is that discerning intent is not confined to words. It can correlate with the problem which he was trying to solve.



      ii) Knowing intent can narrow the interpretive options. It rules out certain possibilities without necessarily pinpointing what's left. It doesn't automatically tell you how he will express his intentions, but it's useful to know what he's endeavoring to express.

      If I see somebody go onto a car lot and start scoping out the merchandise, I infer that he's looking for a new car. That, by itself, doesn't tell me what make and model he will chose. But it tells me he isn't there to pick out a pet dog or cat. 



      iii) You are dichotomizing word and intent, but they are mutually interpretive. Identifying intent helps to specify the range meaning, while the words help to specify the range of intent.

      

"Whether the words he selects do that does not depend on his intention that they do that. His intention can control the selection of words, it cannot control their meaning or the meaning of the whole text."

      

i) He combines certain words with other words to express intent. And what he hopes to accomplish by his words can sometimes be ascertained by extrinsic factors. That, in turn, affects the interpretive process.

      ii) If you think all we have to go by are words, how would you ever detect sarcasm, hyperbolic, or idioms?

      

"I would be reacting to the word, the tone, etc."

      

i) And tone doesn't figure in the meaning of words. That's a question of how the word is spoken (rather than what word is spoken), and how humans react to these nonverbal cues and clues.

      ii) In addition, if we're hiking, he knows from the setting that "freeze" doesn't mean freeze food. Rather, I'm telling him to stop dead in his tracks.

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  7. http://eppc.org/publications/richard-a-posnera%C2%80%C2%99s-badly-confused-attack-on-scaliagarner/#PosnerPart1

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    1. Scalia regularly used historical context as evidence of original intent, and rejected the claim that he relied too heavily on dictionary definitions in his Reading Law: The Interpretation of Legal Texts.

      A good test case is to read, e.g., his Heller decision:

      https://www.law.cornell.edu/supct/html/07-290.ZO.html

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