NOW that the speculation about who will replace Justice Sandra Day O'Connor on the Supreme Court is in full frenzy, we can look forward to debates in which words and phrases like "originalist," "strict constructionist," "textualist," "judicial activist" and "intentionalist" will figure prominently, because these labels are thought by many to stand for different styles of interpreting the Constitution. Those who think so are wrong.Fish tries to debunk the conventional terminology, and reaches a conclusion that I think most legal academics would agree with: it's not the interpretative methodology you say you're following that matters, but where that methodology really takes you in particular cases. We shall know you by your outcomes.
But Fish's discussion of Justice Scalia's "original understanding" approach to interpretation is quite inadequate (albeit long):
If interpreting the Constitution - as opposed to rewriting it - is what you want to do, you are necessarily an "intentionalist," someone who is trying to figure out what the framers had in mind. Intentionalism is not a style of interpretation, it is another name for interpretation itself.The comparison to the rock formation is ridiculous, because no one ratified the rock formation. If a group of persons discovered a rock formation, believed it said something, and agreed that what it said was their law, then there would be an object to discover: what the people who made the agreement to be bound thought the rock formation said. Even if we knew that some people before them had arranged the rocks deliberately meaning to say something entirely different, the object of our inquiry would still be what the people who agreed to be bound thought it meant. That's Scalia's theory of interpretation: it doesn't matter what the particular individuals who wrote the words hoped to say or secretly meant to sneak in there, it's what the people who agreed to the text understood it to mean when they voted to ratify.
Think about it: if interpreting a document is to be a rational act, if its exercise is to have a goal and a way of assessing progress toward that goal, then it must have an object to aim at, and the only candidate for that object is the author's intention. What other candidate could there be?
One answer to this question has been given by Justice Antonin Scalia and others under the rubric of "textualism." Textualists insist that what an interpreter seeks to establish is the meaning of the text as it exists apart from anyone's intention. According to Justice Scalia, it is what is "said," not what is "meant," that is "the object of our inquiry."
The problem is that there is no such object. Suppose you're looking at a rock formation and see in it what seems to be the word "help." You look more closely and decide that, no, what you are seeing is an effect of erosion, random marks that just happen to resemble an English word. The moment you decide that nature caused the effect, you will have lost all interest in interpreting the formation, because you no longer believe that it has been produced intentionally, and therefore you no longer believe that it's a word, a bearer of meaning.
It may look like a word - it may even seem to be more regularly formed as such than the scratchings of someone who is lost - but in the absence of the assumption that what you're looking at is a vehicle of an intention, you will not regard it as language. It is not until you change your mind and become convinced that the formation was, in fact, designed, that the marks will become language and it will be appropriate to interpret them.
Even then you are not home free; just because you're now sure that the marks spell the word "help," you still don't know what it means. It could be a message from a person in distress. It could be a direction like those on a computer screen ("Need help? Look here."). It could be a petition to God. It could be a reference to a Beatles song. Scrutinizing the word won't tell you which of these things it means.
This is why Justice Scalia has it backwards: if you're not looking for what is meant, the notion of something being said or written is incoherent. Intention is not something added to language; it is what must already be assumed if what are otherwise mere physical phenomena (rocks or scratch marks) are to be experienced as language. Intention comes first; language, and with it the possibility of meaning, second. And this means that there can be no "textualist" method, because there is no object - no text without writerly intention - to which would-be textualists could be faithful.
And if there is no object - no plain and lucid text to which interpreters could be faithful - neither is there an object to which interpreters could be unfaithful. Consequently, "judicial activism," usually defined as substituting one's preferred meaning in place of the meaning the text clearly encodes, becomes the name of a crime no one could possibly commit. After all, you can't override a meaning that isn't there.
UPDATE: Thanks to Ramesh Ponnuru for linking to this. Here's his discussion of the Fish piece.