July 19, 2005

Stanley Fish's bad analogy about Scalia's constitutional interpretation.

Stanley Fish has a NYT op-ed that's supposed to wise us up to the rhetoric of constitutional interpretation that's about to flow all around us:
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.

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.
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.

UPDATE: Thanks to Ramesh Ponnuru for linking to this. Here's his discussion of the Fish piece.

34 comments:

Charlie (Colorado) said...

"But Fish's discussion ... is quite inadequate (albeit long):"

Boy, that could just about be Stan's epitaph.

Lawpolprof said...

I think you and Fish both miss the point.

You claim "it's what the people who agreed to the text" understood the term/s to mean. The problem, of course, with this enterprise is it's not clear who "the people" are. A majority of the actual drafters of specific language? A majority of the state legislatures that ratified? Essentially this defense of originalism/textualism is just defoid of a recognition of how politics works - i.e., horsetrading, specialization, efficiency, etc.

Fish too is wrong in that the real justification of textualism/originalism is NOT that it is correct, but that its use has the least amount of danger present for meddling by unaccountable policy-makers (or Justices in this case). Scalia's alleged adherence (he doesn't btw) to textualism/originalism, at least in theory, is the best protector of democratic values; that is, we can vote the bums out if we do not like what occurs. Since that can not occur with Article III judges the best restraint upon these folks is to bind them to declare that "x" is commerce, "y" has attained the age of 35, etc. Of course there is still room for the Justices to put forth their own policy preferences in this schema, but I think that Scalia and other defenders of its practice would argue that "it's the worst form of [interpretation], except for all the rest."

ziemer said...

the ultimate problem is what psychologists call "projecting."

those who believe in a "living constitution" treat interpretation of it the way one interprets a novel.

you start with a thesis, and then you mine the text for whatever bits and pieces support that thesis.

that's how griswold was written, and it explains its appeal to those who were raised in the liberal arts and who agree with the thesis (end result).

the problem is that people who like treating the constitution as a novel that can support almost any thesis, with thorough mining of the text, "project" their own view of the constitution on those who just don't view it that way, and don't read it that way.

ziemer said...

i think i get you, lawpolprof.

its not that the best government is the one which does the least, necessarily.

the best form of government is the one which best minimizes the opportunity for rent seeking.

Ann Althouse said...

Lawpolprof: "The point"? My point in this post is to demonstrate a gap in Fish's presentation. I'm not trying to explain everything about constitutional interpretation. You can go on to find problems with Scalia's theory. My post doesn't deal with that. I suppose I'm "missing the point" to the extent that I'm not writing a post on a different subject!

Scalia does have a well-argued answer to the subject you're raising, of course. It's that you look at the text and try to understand the words as someone at that time would have understood them. You don't have to figure out what any specific people thought, so he would have no problem with the question you raise about exactly who are we looking at. Actual political wheeling and dealing is irrrelevant in his theory. The theory is quite deliberately structured to be "devoid" of these things.

Ann Althouse said...

Lawpolprof: "The point"? My point in this post is to demonstrate a gap in Fish's presentation. I'm not trying to explain everything about constitutional interpretation. You can go on to find problems with Scalia's theory. My post doesn't deal with that. I suppose I'm "missing the point" to the extent that I'm not writing a post on a different subject!

Scalia does have a well-argued answer to the subject you're raising, of course. It's that you look at the text and try to understand the words as someone at that time would have understood them. You don't have to figure out what any specific people thought, so he would have no problem with the question you raise about exactly who are we looking at. Actual political wheeling and dealing is irrrelevant in his theory. The theory is quite deliberately structured to be "devoid" of these things.

Ann Althouse said...

Ziemer: It's crucial to recognize that judges can mine the original intent materials and get them to mean what they want too.

DirtCrashr said...

Maybe by rock formation, he's thinking of some old stone tablets that may coincidentally happen to have some the scratchings of someone who is lost (for forty years) - but it couldn't possibly be anything other than an effect of erosion, random marks - so it should not be regarded as language, or a bearer of meaning, least of all law...

Ann Althouse said...

And just one more thing to Lawpolprof: My post ends, "it's what the people who agreed to the text understood it to mean when they voted to ratify." Read that carefully. It already contains a point I made in that previous comment. It doesn't matter what the ratifiers hoped to achieved through their vote, in Scalia's approach. What matters is how the language they voted on would have been understood.

Ann Althouse said...

Dirtcrashr: Read the whole Fish piece, because he does go on to consider that. Here's an excerpt:

Even [if you "become convinced that the formation was, in fact, designed,"] 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.

Smilin' Jack said...

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.

How can we possibly know that? And why should we care? Whoever did the ratifying, and whatever they thought they were doing, they're long dead. We the living "ratify" the Constitution by not changing it, but that "ratification" is based on what we think it means today. And we can't even agree on that...how could we expect to agree on "how the language they voted on would have been understood" centuries ago?

The reason all this is so difficult--the reason we need a Supreme Court to do it--is that much of the Consitution is incoherent gibberish. What does e.g. the Second Amendment mean? When people can argue about it for centuries without agreement, the answer is clear: it doesn't mean anything. So the Justices (the hubris of that title!) are free to enact what they please. The intense emotion of the coming nomination battles derives from the results people expect the nominees to reach, not from their judicial philosophy--that's just empty rationalization.

Lawpolprof said...

No, I still think you do miss the point. The "point" of Fish's discussion is that different modes of constitutional interpretation all suffer from similar maladies. He's right to that extent. But then there's the so what question?

Your point, as at least interpreted - not perhaps how you intended - is that there is a gap in Fish's writing to the extent that the words were ratified, so there's a difference between finding scrawlings and those words agreed upon by the ratifiers.

BUT...the problem is that you have created this agreement. Why do you assume that such an agreement existed as to the meaning of the terms at time? For example, when we are searching for the meaning of "equal protection" at the time of the 14th, to whom are you looking regarding ratification? There are different possibilities, right? Imagine three different possibilities of the meaning of the terms: (1) no legislation using race, (2) no legislation classifying on race, gender, national origin, etc., or (3) no legislation with a discriminatory purpose based on race (unless there is really good reason, and the legislation is tightly drawn to that end). Does it not seem reasonable that there may not in fact have been an agreement to what "equal protection" meant at the time?

Now 19 states ratified the 14th Amendment within a month; and then the next eight states by the end of 1865. But then, of course, nine more states have ratified after the amendment - including Mississippi in 1995! So who counts? Is it (a) a majority of the states that ratified, up to and including state 27 (Georgia), or (b) a majority of all ratifying states? Most folks choose A, although that answer is not compelled. Either way, the problem is that there may not even be a majority viewpoint as to the meaning (let alone a condorcet winner) when one speaks of ratification. Absent an agreement to the terms, that part of Fish's argument actually seems logically sound. His argument fails in that it does not distinguish between relative harms - some are worse than others.

Thus what I am saying is that there is a gap in what Fish is saying. I don't think you spotted it. I think you created a gap that does not exist.

leeontheroad said...

Jack,when you say this:

When people can argue about it for centuries without agreement, the answer is clear: it doesn't mean anything

do you mean to be agreeing with Derrida and the rest of the deconstructionists? (or only the nihilist branch)?

Richard Dolan said...

To the extent Fish has a point, it is a small one. Obviously language is used to express the intentions of the parties to an agreement (be it a contract or a constitution). But language is not a private affair, and communication would be impossible if words did not have generally accepted meanings allowing one person to convey accurately his intentions to another by using the right words to express that intention.

Nor is there anything particularly new about Scalia's approach to reading agreements (accepting that the constitution is such an instrument). The point is much clearer, and becomes far less controversial, if the issue is framed in the more mundane context of commercial disputes. Take a closer look at two old chesnuts.

Judge Learned Hand penned the classic statement of the rule in 1911: "A contract has, strictly speaking, nothing to do with the personal, or individual, intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intention. If, however, it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes upon them, he would still be held ...." Hotchkiss v. Nat'l City Bank, 200 F. 287, 293 (SDNY 1911), aff'd 201 F.2d 664 (2d Cir. 1912), aff'd 231 US 50 (1913).

Judge Kozinski had occasion to discuss the impact of the opposite rule -- one where the words chosen by the parties, no matter how clearly and unambiguously those words may be, are deemed insufficient as a matter of law to determine the meaning of the parties' agreement. See Trident Center v. Conn. Gen. Life, 847 F.2d 564 (9th Cir. 1988). Trident was a simple mortgage foreclosure case. The mortgagee was an insurance company, and the mortgagor was a partnership consisting of another insurer plus "two or Los Angeles' largest and most prestigious law firms." The mortgagors defaulted and then brought a declaratory judgment action claiming that the "lengthy and detailed" mortgage documents on a $56 million deal that "squarely address the precise issue" and "appear to resolve the issue fully and conclusively" somehow did not accurately express the parties' actual intentions.

The focus of that appeal was the odd rule, adopted by the California Supreme Court, that no contract can ever be so clear as to be free from attack based on extrinsic evidence because words can never have "absolute and constant referents." According to the California Supreme Court, the notion that words can have objectively determinable meanings was "a remnant of a primitive faith in the inherent potency and inherent meaning of words." Indeed, in an echo of Fish, the California Supreme Court "compared the belief in the immutable meaning of words with '[t]he elaborate system of taboo and verbal prohibitions in primitive groups ... [such as] the Swedish peasant custom of curing sick cattle smitten by witchcraft, by making them swallow a page torn our of the psalter and put in dough.'" 847 F.2d at 569 n. 5 (quoting Cal. Sup Ct.).

The California Supreme Court's notions about the limitations of language to express the intentions of parties to an agreement was mercilessly skewered by Kozinski. As Kozinski points out, one of the many obvious problems with that approach is that it "undermines the basic principle that language provides a meaningful constraint on public and private conduct. ... Are all attempts to develop the law in a reasoned and principled fashion doomed to failure as 'remnants of a primitive faith in the inherent potency and inherent meaning of words?"

Trident was a diversity case, and thus despite his conviction that the Cal. Supreme Court's view was foolish, Kozinski faithfully followed it. In closing he observed that, while the Court was quite "impatien[t] with this litigation," "[a]t fault, it seems to us, are not the parties and their lawyers but the legal system that encourages this kind of lawsuit. By holding that language has no objective meaning, and that contracts mean only what courts ultimately say they do, [the Cal. Sup. Ct.] invites precisely this type of lawsuit. With the benefit of 20 years of hindsight, the California Supreme Court may wish to revist the issue. It it does, we commend to it the facts of this case as a paradigmatic example of why the traditional rule, based on centuries of experience, reflects the far wiser course."

Scalia's approach to constitutional interpretation is in line with Judge Learned Hand's comments from 1911, as it is with the ideas expressed by Kozinski. Yes, there are cases -- both contractual and constitutional ones -- where the relevant text will not answer the controlling question. But those cases are rare, and in all events, the object of the interpretive exercise is to determine objectively, based on the usual meaning of the words used by the parties, what the text means. It bears remembering that what we are talking about is ordinary English words and usage, not some private code or secret language.

It doesn't matter what subjective or private meanings the various players may have intended by the use of a word, phrase or sentence. What matters is what the word, phrase or sentence chosen by the drafters (of the contract, constitution or any other text) would have meant at the time and place of the text's writing. Thus, it is hardly surprising that Scalia often cites dictionaries, legal texts and similar sources from the relevant period to flesh out what the words chosed by the drafters would have meant to a reasonably informed reader of the day. If the drafters in fact meant something else, well, too bad. As Judge Hand wrote long ago, it would make no difference if such a subjective intent were proven by "twenty bishops" since what the drafters adopted, and what was ultimately ratified, was a text that was meant to be open and understandable by all to whom it was presented for ratification.

Goesh said...

Antonin can tell you all about Throid cancer and how long patients usually live that have it. His clerks are already calling him Chief Tony, of course only in lighter moments in Chambers when the day's work is done and the boss allows a spot of brandy for all staff on hand. Who will George parade out tuesday night? Will he/she model the SC black robe for commoners to gawk at and pundits howl at??

Christopher Reilly said...

Props to the crowd here for discussing what I think is really at stake this summer: essential American political philsophy.

I think even if the conservatives get someone characterized as a strict constructionist etc (all those terms tend to melt down in my mind to one idea: "I, as Justice, will try my best to avoid legislating and focus on adjucating"), I think that the nation is significantly poorer if their motivations are only short term reversals.

Here's my comments on the type of debate I think we will be seeing circling the media for the next two months: Right + Left arguments that mainly serve to confuse any clear idea of how the government should work in the interest of moral agendas.

http://www.confirmthem.com/?p=752#comment-8668

Jack said...

@leeontheroad: It is gorgeously ironic that you are asking a disbeliever in meaning what he means. A lot of this nonsense could be dissolved if we persistently asked "what do you mean by that" after every attempt at explaining the gospel of deconstruction. Of course, if you keep this up for too long, eventually you might get popped in the mouth, demonstrating the principle of the Maoists (who, at least, are more honest than Derrida) that meaning flows from the barrel of a gun.

@Richard Dolan: On the same note, one of the points that Kozinski might have made was that the California Court clearly expected its own pronouncements, not only to be understood, but obeyed. Sorta gives the game away, don't it?

leeontheroad said...

glad you caught that, Jack :-) As for getting popped in the mouth, I duck quickly, but, yes, could happen. . .

Smilin' Jack said...

I'd like to point out that the previous "jack" isn't me. I'm neither a deconstructionist nor a disbeliever in meaning. I simply think some texts have meaning and some don't, and that much of the Constitution falls in the latter category. And if I were wrong about that this debate wouldn't be occurring in the first place.

Gerry said...

"no one ratified the rock formation"

Bravo, Ann. Absolutely outstanding. A one sentence demolition.

DirtCrashr said...

I guess I just have difficulty with the notion that a deconstructivist is even able to use language since it seems for them paralytic and inchoate, lost in the interstices where the absence of the assumption...is a vehicle of an intention. Or whatever.
Despite all those deconstructivist obstacles, and given that once we notice the petroglyphs we did assume they had meaning, there has been some remarkable work figuring out ancient Mayan texts and language without knowing what exactly was meant to begin with, even though much of it began as complete visual and audible incoherence.

Keith Burgess-Jackson said...

I comment on Stanley Fish's column here.

Steve said...

Take the Ninth Amendment, for example. What rights does it protect?

Is it whatever rights the ratifiers thought should be protected? Or did the ratifiers mean that whatever rights might be deemed important in the future, those rights should be protected?

It seems there are a million different places you can go with this theory, none of them obviously incorrect. Or you could take the position that the Ninth Amendment is a dead letter, since any enforcement of it would require nine justices to "make up" rights that don't explicitly appear in the Constitution.

Wince and Nod said...

SmilinJack,

All of the Constitution has meaning, the meaning is relatively easy to understand, but sometimes difficult to apply. The Second Amendment is quite easy to understand, it's just that so many people don't like what it says.

For example, cruel and unusual punishment is prohibited. Easy to understand, definitely has meaning, difficult to apply, because what the exact nature of "cruel and unusual punishment" is left as an exercise to the reader. I'm pretty sure we can conclude that a fifty dollar fine is not cruel and unusal punishment, but that being fed feet first through a plastic shredder is. In the middle? Well, that's why we have elections, legislatures, executives and judges, isn't it?

Steve,

Randy Barnett says that the Ninth Amendment requires a "Presumption of Liberty" - a method which would allow judges to use the Ninth to decide cases.

Every clause of the Constitution can be used to protect our rights. I want it all to be so used. Call me an activist.

Yours,
Wince

submandave said...

I think Fish's near exastentialist approach to text and intent ignores that in many situations text most certainly does have meaning apart from intent. When I am reading technical manuals or specifications, and it says part X must be 0.025" thick with a tollerance of 0.002" then I know that a part that is 0.030" thick is unacceptable, regardless of the why of the specification.

Justice Scalia's aproach, to a layman like me, assumes the very carefully chosen words in the Constitution were selected in order to have specific meaning. Just as I would want very specific words in a contract I intend to enter into, it is reasonable to believe that the States, too, wanted to protect their interests with equally specific meanings. Looking to the text, first, for such meaning only makes sense.

M. Simon said...

Ziemer,

Prof Reynolds thinks Griswold was rightly decided based on the forgotten Amendment: IX

Reynolds on Bork and Griswold.

According to our system the powers of Government are limited. The Rights of the People are not.

By ignoring IX Bork is not an originalist. He is in fact explicitly legislating (IX out of existance) from the bench.

I believe Scalia is from the Bork school.

M. Simon said...

Steve,

According to original design the Constitution does not confer rights. They pre-exist.

The purpose of the Constitution is to limit the powers of Government.

For instance - do you have a right to eat? Or Could the Congress declare that only intravenous feeding is legal?

After all there is nothing about eating in the Constitution.

polisciprof said...

As a fan of the 9th Amendment, let me include an obvious point: it was intended to remind the Federal government (not the states)that it was to be limited to the enumerated powers. The fear was that by listing rights, you would be expanding powers (see Hamilton in Federalist 84). The real problem comes in if you assume that the 9th is to be incorporated into the 14th against the states. States, after all, have inherent police powers.

Steve said...

Let's set aside the incorporation doctrine for a moment. Just looking at the 9th amendment by itself, some unenumerated rights belong to the "States," and some rights belong to the "people." Now, if we assume the 9th amendment was merely intended to reaffirm the concept of enumerated powers, and that everything else is left to the States and their police power, what unenumerated rights are left for the people?

It seems like, unless you accept that the 9th amendment itself imposes some limit on State police power, there was no reason to mention the "people" at all.

jordancunningham said...

that rock formation analogy is possibly the worst analogy I have ever heard in my life.
Maybe if a tribe stacked the "rocks" to encode their ordering "laws" for their tribal society...after they have voted on which rocks to stack. Maybe then you would defer to the rocks rather than ask what each tribal representative said at the time of stacking...
Forget it. Unbelievable that Stanley Fish has a major column.

Stefan said...

Ann, You seem to be making two points: 1) that Scalia believes that what matters is the original understanding of the delegates to the state ratifiying conventions that matters, and not the understanding of the delegates to the Constitutional Convention; and 2) that there is some clear distinction between "original understanding" and "original intent."

Your first point would exclude reliance on (for example) Joseph Story's writings and Madison's notes of the debates at the Constitutional Convention. I think that Scalia does rely on these sources in constitutional interpretation. He does not limit himself to accounts of debates at ratifying conventions or statements of individual delegates to the state ratifying conventions. In the case of the Bill of Rights, there are very few records of debates in the State legislatures ratifying those amendments.

Regarding your second point, I think that "original understanding" and "original intent" are basically different names for the same concept. And both are misleading because the reality is that many of the ratifiers (or framers, if you are willing to consider their views) did not even think about many of the constitutional issues that have come before the court in the last two centuries. To that extent, there often was no understanding or intent about how the broad provisions of the Constitution would be applied in particular cases.

Ann Althouse said...

Stefan: Scalia looks for original meaning which is not about what any particular individuals -- framers or ratifiers -- thought. It's about what the text meant to readers at the time. A legal process of ratification of a particular text took place, which made that text legally operative. So you look at the text through the eyes of a reader of the time. And let me be clear: I'm just trying to explain Scalia's theory of interpretation, not convince anyone that he's right.

Melchior Sternfels v. Fuchshaim said...

Smilin' Jack: you give us this pair of propositions:

(1) people can argue about the 2nd Amendment for centuries without agreement;

(2) clearly, the 2nd Amendment doesn't mean anything.

Are you saying that (2) follows from (1)? How so? Can you show how (1) entails or even implies (2)? I hardly think so, and it seems to me the onus is on you to argue that it does.

Stefan said...

Ann, You say that "Scalia looks for original meaning which is not about what any particular individuals -- framers or ratifiers -- thought. It's about what the text meant to readers at the time." But Scalia does rely on the statements of particular individuals in constitutional interpretation: Madison and Hamilton (in the Federalist Papers) and Joseph Story, to name just three. But my larger point is that it is not very meaningful to speak of the the meaning of a legal rule in the abtract. Rather, the meaning of a legal rule lies in its application to particular situations. Does the Free Press Clause in the First Amendment mean that newspapers cannot be taxed? That newspaper writers may not be criminally punished for advocating illegal conduct? That state regulation of advertising content in the paper is improper? How many ordinary readers of the First Amendment had either the aptitude or the desire to consider the myriad of questions of this kind about the meaning of the Free Press Clause? Indeed, how many of the more sophisticated readers of the time (e.g., Hamilton, Madison, Story, George Mason, Jefferson, Jay, Samuel Chase) gave any thought at all to many of the issues that surround the meaning of the Free Press Clause?