Stanley Fish has a well-written and interesting op-ed in the NY Times. (I don’t know whether the op-ed is available to non-subscribers.) Although mainly on the coming debate over the judicial philosophy of prospective nominees, Fish has a lot to say about constitutional interpretation:
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.
. . . 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.
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 — just as that rock formation 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.
This does not mean, however, that interpreting the Constitution is a free-form activity in which anything goes. The activism that cannot be eliminated from interpretation is not an activism without constraint. It is constrained by the knowledge of what its object is — the specifying of authorial intention. An activism that abandons that constraint and just works the text over until it yields a meaning chosen in advance is not a form of interpretation at all, but a form of rewriting.
Rewriting is what is being done by those who talk about the “living Constitution” and ask, “Why should we be constrained by the dead hand of the past?” This makes no more sense than asking, “Why should we be constrained by wills and contracts?”
The answer is that without that constraint handed down by the past, law and predictability disappear and are replaced by irresponsibility and the exercise of power. If you can just make it up when interpreting the Constitution, you can also make it up when deciding whether or not to honor your contractual obligations, and so can everyone around you. In fact, if your question is “What do I want it to mean” rather than “What did they mean by it?” you can dispense with “it” and “them” entirely and just go right to the fashioning of the meaning you prefer.And that is why the only coherent answer to the question “What does the Constitution mean?” is that the Constitution means what its authors intended it to mean. The alternative answers just don’t work: the Constitution can’t mean what the text alone says because there is no text alone; and it can’t mean what present-day society needs and wants it to mean because any meaning arrived at under that imperative will not be the Constitution’s.
Only if the specification of the authors’ intention is its goal does interpretation have a real object of inquiry; and only the goal of specifying authorial intention allows us to distinguish between what we might like the Constitution to mean and what we can show — by reasons and evidence publicly offered — that it does mean. . . .
If the nominee identifies himself or herself as a textualist or a strict constructionist and pledges to be a faithful interpreter of the Constitution (as opposed to an unfaithful one?), you will know that he or she is blowing smoke and laying claim to virtues no one could practice. If the nominee promises to test the Constitution against the needs of our present situation, you will know that he or she will not be an interpreter but a rewriter, and no one on either the left or right wants that. And if the nominee says, “I am an intentionalist,” the declaration will be uninformative, because every interpreter is necessarily an intentionalist — not by choice but by definition.
There is much to be commended in Fish’s account. And I hadn’t realized until now that Fish was an originalist. Further, he is presenting highly sophisticated argumentation in the form of an op-ed, which means that he can’t be faulted for simplifying or for not dealing with counter-arguments.
Yet it strikes me that Fish’s extraordinary literary background makes him misstate (or misunderstand) the central problem that “original intent originalism” purports to solve. Fish writes: “if interpreting a document is to be a rational act, . . . then it must have an object to aim at, and the only candidate for that object is the author’s intention.” But what gives a law or a Constitution its force as law is that its language was enacted as law or ratified by the states. Why would the author’s intention as to the meaning of the words trump the meaning of the words to those who enacted or ratified the language? It is their act that made the language law; it is their act of agreeing to enact the language that transforms what is otherwise only a proposal.
While Fish says there is no alternative to looking to the intent of the author, there is an alternative, indeed, what might seem to be a better alternative: looking to the intent of the enactors, signers, and ratifiers. OK, so Fish might be willing to accept that move, perhaps by revising the idea of the “author” to mean not the author of the language but rather the enactors of the statute or Constitutional provision.
Yet that simple move changes the analysis considerably. Once you have hundreds or thousands of enactors or ratifiers, then you are usually talking about the public meaning of words at the time, not the idiosyncratic private meanings of the man or woman who drafted the language. Now you are in the realm of “original meaning originalism,” not “original intent originalism” which Fish posits as the only form of interpretation.
Nonetheless, some original meaning originalists will allow idiosyncratic meanings to trump the usual public meaning at the time if that idiosyncratic meaning was publicly discussed and probably agreed upon (or presumably if legal terms of art are used that differ from ordinary public meaning, e.g., “under color of official right”). Where such idiosyncratic meanings were not discussed publicly or where searching for them might lead to more error than not searching for them, for some people (not me) “textualism” might be a crude shorthand label for looking to the meaning intended by the enactors and ratifiers. Given the cooperative enterprise of enactment or ratification, their intention is very likely to be the public meaning of the words at the time.
So, although Fish is right that intentionality matters and provisions are more than simply arrangements of markings on the face of a rock, he does not follow up that insight by asking (as Rick Kay did in his classic 1980s Northwestern Law Review article) what makes these words important. It is not, as Fish supposes, the intention of the author, but rather the political act of enactment that makes them deserving of respect as law. Thus, I think Fish is wrong that there is no alternative to the intentionality of the author of a provision. The alternative is the intention of the enactors and ratifiers, which will almost always be the public meaning of the words at the time. I leave for others whether Fish or the “textualists” and “strict constructionists” are closer to this form of sophisticated original meaning originalism, which I find a coherent and defensible position (though I don’t endorse it). The Constitution is more than a literary text and sometimes modes of interpretation designed for literary texts will be appropriate — and sometimes not.
(Perhaps my other conspirators or Larry Solum over at Legal Theory blog can provide some more informed analysis. In particular, I hope that Randy Barnett, who was the primary expositor and popularizer of the distinction between “original intent originalism” and “original meaning originalism,” will weigh in with a closer and more informed analysis of Stanley Fish’s argument for original intent originalism than I can give.)
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