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View Diary: On Constitutional Interpretation: Originalism v. A Living Constitution? (286 comments)

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  •  Interpretation Requires Meaning (none)
    Stanley Fish, in an op-ed from the NY Times last Tuesday, wrote:

    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."

    ...

    ...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 ... 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.

    Indeed, because texts do not declare their own meanings, activism, at least of a certain kind, is inevitable. You must actively try to figure out what the author or authors had in mind when setting these marks down on paper. And while the text as written can be a piece of evidence, it cannot ... be self-sufficient and conclusive evidence.

    It follows that any conclusion you reach about the intention behind a text can always be challenged by someone else who marshals different evidence for an alternative intention. Thus interpretations of the Constitution, no matter how well established or long settled, are inherently susceptible to correction and can always (but not inevitably) be upset by new arguments persuasively made in the right venues by skilled advocates. box

    •  Yeah (none)
      So you read the law, understand what it means, see how it's been applied, then listen to the lawyers ARGUMENTS for and gainst seing a differenet or expanded meaning in it, and pass judgement on those arguments and possibly see the meaning of the law change.

      So really, all this talk of judicial philosophies is a Red Herring - everyone is interpreting the law, right and left, it's just that for a long time the rights arguments haven't convinced the judges to see their meaning in the law.  So rather than admit the arguments were bad and their interpretations were wrong, they blame the judges for being prejudiced, and find a way to stack the courts with judges who already agree with their arguments.

      When all else fails...panic

      by David in Burbank on Sat Jul 23, 2005 at 02:55:17 PM PDT

      [ Parent ]

      •  Just because judges aren't convinced (none)
        doesn't mean the arguments are bad.

        Isn't it possible that sometimes, just sometimes, the judges are so convinced of their reading of the law before they come into court that there is no convincing them otherwise?

        "Let all the dreamers wake the nation." -- Carly Simon

        by Cream City on Sat Jul 23, 2005 at 09:22:33 PM PDT

        [ Parent ]

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