What did Justice Scalia mean?
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Jennifer Senior, "In Conversation: Antonin Scalia", New York, 10/6/2013:
Q: Had you already arrived at originalism as a philosophy?
A: I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?
It's natural to be puzzled by this:
"Words have meaning. And their meaning doesn't change."
The second phrase is transparently false, which leaves us with the usual problem of interpretive abduction:
Maybe Justice Scalia was misquoted. You'd think that an interview of this kind would be recorded and and transcribed carefully, but journalists are sometimes amazingly careless about this type of thing.
Maybe he really thinks that word meanings don't change. This is unlikely, but conceivable.
Maybe he meant to express the tautology that what words meant in (say) 1789 is (and forever will be) what words meant in 1789. This seems to be the most likely theory, but if it's correct, he chose an unfortunate way to express himself, since what he actually said implies the obvious falsehood that what words meant in Shakespeare's time is exactly the same as what those words mean today.
To make sense of what he said, we're forced to reason in terms of the circumstances of the interaction and his likely communication intentions — and as I understand it, these are both factors that he himself prefers to banish from the interpretive process.
[There are obviously additional questions about how "word meaning", assuming it to be determinate and bounded as of a certain moment in time, should be applied in circumstances that are entirely outside of the experience and understanding of anyone living at that moment. But the point at issue here is intentionalism, not originalism.]
Ginger Yellow said,
October 7, 2013 @ 7:10 am
It may seem "unlikely", but at the risk of getting too political, I think the difficulty is built into his brand of originalism, which asks us to believe that it's easier to infer what words meant (to an unknown audience, not even the authors!) 200 years ago than it is to infer and base jurisprudence upon what those words mean to us now. Ignoring the possibility of semantic change may be a way for him to accommodate that belief.
rgove said,
October 7, 2013 @ 7:20 am
Easier, no. Legally correct, yes.
Ellen K. said,
October 7, 2013 @ 7:22 am
My thought was that by "words" he meant words in a specific instance of usage. As in the sentence I just wrote, has a meaning, and that meaning doesn't go and later change. That fits with what he says later in the answer, as well as the idea of originalism. It doesn't fit with not thinking one should try to discover the intent of the author, but that doesn't me he didn't mean it that way. Could be his views have changed, or, more likely I think, he doesn't see that looking to the meaning of the words when they were written as used in that piece of writing, means looking at the meaning the author intended.
James said,
October 7, 2013 @ 7:39 am
My interpretation is similar to Ellen K's.
What he's saying is that the law doesn't change just by our usage patterns changing. Originalism is a theory about what the law is, not really a theory about what (in general) words mean.
[(myl) Indeed. But now you're reasoning about his probable intentions, given what else you know about his ideas. And as I understand it, this form of interpretation is precisely "intentionalism", which Justice Scalia considers illegitimate and even incoherent. That's my only point here.]
David Golumbia said,
October 7, 2013 @ 7:47 am
At first, Scalia's originalism was said to refer to the speaker's intended meaning of any given word as an objective fact. When confronted with the obvious historical fact that even different Founders disagreed about the meanings of specific words in the Constitution (think "freedom," "citizen," "creator," etc.), Scalia switched to a new version, evident but not clearly stated in your quotation: the accepted meaning of words that was in the air and generally agreed upon by all. Thus:
(from http://www.cfif.org/htdocs/freedomline/current/guest_commentary/scalia-constitutional-speech.htm).
Since there is, as every linguist and philosopher knows, no fact of the matter about "the meaning that it bore when it was adopted by the people"–check out the Constitutional Conventions if you want to read some heady disagreement about what those words in particular mean!–especially core political and conceptual terms, you could not develop a more effective means to do exactly what Scalia accuses his opponents of doing: making up whatever he wants as a justification for his particular (and noxious) beliefs. For a relatively thorough excoriation of Scalia's continuing (and, I think, obvious even to him) shell game around these issues, including his deliberate reinterpretation of historical figures to get them to say things they clearly were not saying, from a mildly unexpected source, see Richard Posner's "Incoherence of Antonin Scalia."
[(myl) Thanks, especially for the Posner review, which I had not read. There's some (less legally well-informed) discussion of related issues here, here, and here.]
J.W. Brewer said,
October 7, 2013 @ 7:49 am
Indeed, since Scalia is usually said to subscribe to the "original public meaning" version of "originalism," the notion that the meaning of words can in some sense change over time is built into the theory or otherwise there would be no need to specify the "original" meaning as opposed to some other meaning that would be plausible in a different temporal context. But the prior commenters are correct that theories of meaning in this context are inextricably intertwined with theories of political legitimacy and judicial authority. E.g., maybe theories that a constitutional provision has One True Meaning that is stable over time and in principle capable of objective determination by interpretative tools available to the sort of people who become federal judges are hopelessly naive. But if a linguistically sophisticated understanding of the issues leads to that conclusion, then we may need as a political/legal culture to go back to square one and reexamine a lot of centuries-old conventional wisdom about the nature and scope of the role of the courts.
Ari said,
October 7, 2013 @ 7:51 am
For the record I didn't think it was all that confusing a manner of expressing a point that was quite obvious in context.
J.W. Brewer said,
October 7, 2013 @ 7:52 am
Note also that in terms of what myl points out as a seeming contradiction, that Scalia's hostility to "legislative history" over text means that he ought not to, e.g., premise any theory of the original public meaning of the Third Amendment on loose language found in a possibly-selectively-edited Q&A some glossy magazine conducted with James Madison.
Tom Saylor said,
October 7, 2013 @ 7:54 am
I don't find the statement at all paradoxical. If you charitably assume that by 'words' Scalia means words as they are used in a particular utterance, then the claim that the meaning of words doesn't change is arguably true. Suppose that 200 years after speaker M says "Temperance is a virtue" people no longer use 'temperance' or 'virtue' in the same sense that M used them. Does that alter the meaning of M's statement, i.e., what M meant to express when he uttered it? I would say not. Of course, those same words might mean something else if uttered by somebody else at a different time or in different circumstances, but the meaning of those words *as they are used in M's utterance* does not change.
[(myl) The statement is not paradoxical. But to interpret it correctly, that is, as not transparently false, it's necessary to engage in a form of interpretive reasoning that Justice Scalia disdains in principle.]
Ginger Yellow said,
October 7, 2013 @ 8:23 am
. Does that alter the meaning of M's statement, i.e., what M meant to express when he uttered it?
The problem being that Scalia explicitly rejects the idea that the meaning of M's statement is "what M meant to express when he uttered it", in favour of "what M's audience understood it to mean when he uttered it".
David Golumbia said,
October 7, 2013 @ 8:34 am
it took me this restatement to get this point you are making beyond the general outrageousness of Scalia's thought on semantics. it is a subtle and very well-made point.
it's almost the inverse of a point Scalia tries to slide around repeatedly: if originalism is itself the original intent of the framers of the Constitution, why is there so little record of it as an interpretive strategy until Scalia & his pals come along? If his interpretive method was what it claims to be, that would have to be clearly indicated all over the historical record–and it isn't.
Bob Lieblich said,
October 7, 2013 @ 8:45 am
So the "arms" the Second Amendment allows us to bear are muskets and flintlocks and not semi-automatics, right? After all, that's what "arms" meant in 1791.
[(myl) I guess you could argue that the Founders were aware of technological progress in armaments, and were capable of understanding "arms" to include whatever such progress turned out to produce. But there's also the question of whether the common understanding of "bear arms" in the late 18th century was limited to military (and militia) contexts. See here for a discussion.]
Alan Gunn said,
October 7, 2013 @ 9:06 am
Justice Scalia's apparent aversion to trying to discern a speaker's intended meaning doesn't appeal to me when the speaker is a person. When the words in question come from a body of people, however, as with legislation and constitutions, it becomes borderline silly to talk of that body's intentions. Language that emerges from voting does not reflect the intention of any one speaker, and it makes little sense to attribute intentions to groups of people who may vote for or against particular words for many reasons. This is especially true, I think, of legislation today, when few if any of the people who vote on bills have even read them.
J. W. Brewer said,
October 7, 2013 @ 9:27 am
In addition to interpreting texts such as constitutions and statutes, judges (not necessarily the Supreme Court so much, but regular lower-level judges) need to interpret less formally-produced sorts of texts such as letters, emails, marketing brochures, transcripts of telephone conversations, transcripts of in-person conversations (perhaps where someone was wearing a wire . . .) etc etc etc. These have the advantage of often having an actual non-metaphorical "author" or speaker, often one who is available to testify (credibly or otherwise) about what the intended meaning was. It's not clear to me that Scalia advocates a radically textualist/non-intentionalist approach to how to make sense of those rather different sorts of text. (For particular sorts of legally-operative documents like contracts, wills, prospectuses, etc. there are also genre-specific accumulated traditions of textual interpretation, which have complicated feedback effects on how such documents are typically drafted.)
Ted said,
October 7, 2013 @ 9:42 am
Off-topic, but I was struck by the following clause, from the second sentence of the article:
Jen is a classmate and friend, so I prefer to imagine that this is the work of an overzealous copy editor with a phobia of sentence-ending prepositions.
Alan Gunn said,
October 7, 2013 @ 9:46 am
@ J.W. Brewer. Yes. There's a wonderful NY decision (don't remember which court) interpreting a provision in a will leaving property to a group of people "as joint tenants and as tenants in common." That phrase makes no sense because co-owners have to be either joint tenants or tenants in common (or tenants by the entireties, not relevant here). The court ruled, quite sensibly, that the lawyer who drafted the will must have meant to say "as joint tenants and not as tenants in common," which is what all lawyers say when they want to create a joint tenancy, so the will was interpreted as creating a joint tenancy. The absence of the "not" was an obvious error by the person who typed the document. It would be interesting to know whether Justice Scalia would agree. I'd bet (just a small amount, though) that he would.
Giacomo Ponzetto said,
October 7, 2013 @ 10:07 am
I much prefer Posner to Scalia, but it seems unfair to the latter to say that his version of originalism banishes consideration of the author's intent. In fact, that would seem to be the approach he called "a degraded form of textualism that brings the whole philosophy into disrepute" (Scalia 1998).
The problem may be that the distinction between original meaning and original intent tends to disappear for a contemporary document whose original audience we are.
I would argue that a majority of the readers of the interview had no problem interpreting Scalia's reported statement. It didn't even occur to me it could be read in the manner Prof. Liberman suggests. If I made this argument as a point of law, it would be an original-meaning argument, because I'm trying to understand what his original readers took Scalia to mean. What's unusual is that I am myself one of Scalia's original readers.
As far as I can tell, Scalia agrees it's appropriate to consider what his original readers understood he wanted to say. According to his brand of originalism, however, it is not appropriate to consider what posterity will think he wanted to say based on information that the average original reader didn't have access to.
Even contemporaneously, suppose Prof. Liberman knew that Scalia is an amateur linguist whose pet theory is that semantic evolution in English stopped in the late 18th century so that word meanings have been forever fixed since then. He could cite unpublished correspondence in which Scalia exposes this theory, and claim that the original intent of the sentence under consideration was to provide a concise public statement of the theory. Original-meaning scholars would reject this interpretation, on the grounds that the average original reader had no idea of Scalia's linguistic hobby-horse and took him to mean something else.
Ginger Yellow said,
October 7, 2013 @ 10:12 am
it's almost the inverse of a point Scalia tries to slide around repeatedly: if originalism is itself the original intent of the framers of the Constitution, why is there so little record of it as an interpretive strategy until Scalia & his pals come along?
Is that actually his position? I honestly hadn't thought about that particular aspect. It's not logically necessary for him to believe that his brand of constitutional interpretation is that of the framers for him to believe that it is the right one.
Alan Gunn: That's a matter of contractual construction, though. While there is obviously a degree of overlap, it's not the same thing as statutory or constitutional interpretation. It's readily acknowledged by the courts that drafters of contracts make mistakes, although they are (in most common law jurisdictions) somewhat reluctant to actually rewrite them unless the error is obvious and nonsensical. Whereas (and I'm not a lawyer so I could be completely off base) I'm not aware of the US courts ever saying that the framers of the Constitution got it wrong and inserting new wording.
J. W. Brewer said,
October 7, 2013 @ 10:42 am
I'm not sure a lot of people in the 1780's and immediately following decades gave much thought to how the possibility of subsequent evolution of the English language should be taken into account by not-yet-born people who might be treating 18th century documents as sources of authority and legitimacy. http://www.constitution.org/js/js_305.htm gives Joseph Story's views as of 1833 on how to interpret the Constitution (after the nation had had the benefit of a few decades of disputes about interpretation in concrete contexts). I wouldn't say Story's methodological views were necessarily those of everyone of his time, but his treatise was massively influential for a long while thereafter. You can draw your own conclusions as to whether he supports Scalia, contradicts Scalia, or is just focused on a different set of issues.
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Eric P Smith said,
October 7, 2013 @ 11:05 am
New kinds of arms have been invented since 1791. That does not mean that the meaning of the word 'arms' has changed. (It probably has, but not necessarily in that particular.)
J. W. Brewer said,
October 7, 2013 @ 12:38 pm
One other thing from the brief Scalia snippet that is worth considering is his passing reference to "when the people voted for it." One could take a certain pedantic position and argue that that's not really right, but in a deeper sense it illustrates why a certain sort of crude intentionalism is especially problematic here. In the case of a statute you have X members of one house of the legislature and Y members of the other who voted in favor of the final form of words (plus arguably the president/governor who signed or at least opted not to veto the form of words the two houses agreed on) and it is unlikely that every member of that set (currently several hundred at the federal level – significantly smaller in certain states) had precisely the same subjective understanding of the meaning of the words. In the case of the U.S. constitution, however, the legitimacy and authority of the document comes not merely from the fact that a majority of delegates to the Constitutional Convention ultimately agreed on a particular form of words but that the resultant form of words was ratified state-by-state by conventions whose delegates were specially selected (mostly if not exclusively by popular election) for that purpose (and thus had variously run on a pro-, anti-, or somehow nuanced/moderate/uncertain platform regarding the proposed form of words). So you might need to add to the subjective understandings of the guys in Philadelphia (<100) the understandings of all the state convention delegates who voted in favor (possibly <1000, but certainly several hundred) and then arguably the understandings of the voters (tens if not hundreds of thousands) who voted for those delegates. An intentionalist theory of meaning for a text whose authority derives from the direct or indirect approval of that many individuals may be, shall we say, unwieldy.
David Golumbia said,
October 7, 2013 @ 1:01 pm
On several of the most robust (but still controversial) accounts of meaning, a change in reference necessarily entails a change in meaning. It's arguably found in Mill; arguably entailed by Frege's account of sense and reference; arguably entailed by Wittgenstein's account of meaning as use; and explicitly articulated and defended by Saul Kripke and Hilary Putnam, especially in his essay "The Meaning of 'Meaning.'" There are certainly countervailing viewpoints, although the view that reference can change without meaning changing is not one that has many adherents.
J. W. Brewer said,
October 7, 2013 @ 1:37 pm
Wait, so does the meaning of "insect" change every time a previously unknown species of insect is first reported in the scholarly literature? Does the meaning of "word" change every time a new word (in any language?) is coined? If that's really what Kripke and Putnam would say, then my not-necessarily-all-that-informed decision at age 19 to major in linguistics rather than philosophy (exposure to inter alia Hegel having given me the impression that the latter field did not have a very good signal-to-noise ratio) is looking pretty good in hindsight.
David Golumbia said,
October 7, 2013 @ 1:46 pm
The most extreme versions of the Putnam-Kripke hypothesis might say that, but more moderate ones would suggest the change in meaning comes about only when the new reference becomes known in the community of speakers.
It's an easy position to attack, but even the history of linguistics (generative semantics, Jackendoff, & even more recent efforts) shows that offering a positive account of word meaning, *especially* one divorced from reference, is much more difficult than our intuitions may suggest.
Acilius said,
October 7, 2013 @ 2:01 pm
"An intentionalist theory of meaning for a text whose authority derives from the direct or indirect approval of that many individuals may be, shall we say, unwieldy."
Such a theory may be fantastic, but I wouldn't call it unwieldy. After all, the law is supposed to be so generally intelligible that everyone to whom it is spoken is capable of understanding it. Not only that, judgments are handed down as if the parties in fact did understand the relevant law, even when the law in question is rendered by a high court that has resolved many disagreements among lower courts. That's why they say that ignorance of the law is no excuse.
Granted, in a situation where the lower courts are divided and the law will become clear only after Mr Justice Kennedy chooses which four of his colleagues he will join, ignorance of the law is universal. But not much would be left for courts to do if we started exempting people from responsibility for following laws of which they lacked a clear understanding. So the fiction that legal utterances are generally intelligible and indeed generally understood is tacitly presupposed throughout the entire system.
J. W. Brewer said,
October 7, 2013 @ 2:28 pm
I think Acilius and I may be talking past each other, because he seems to be advocating what I would call a non-intentionalist position: i.e. the constitutional-or-statutory text means what it would be taken to mean by some average or prototypical member of some relevant audience (what Scalia and his allies call "original public meaning" is a version of this) rather than what it may have actually secretly/subjectively been intended to mean by some fictitious (because plural) "author."
Rick said,
October 7, 2013 @ 2:57 pm
As counter-intuitive are it at first blush appears, an argument can certainly be made that the answer is "yes". Of course, the question here is "how big a change?"
When the new insect (or whatever) fits comfortably inside of the meaning of the word, then the change will be minor, but when the new discovered (or invented) object is "at the edges" of the term, then the change in meaning can be more significant. The discovery of the platypus probably did change the meaning of the word "mammal"; the invention of the solid body electric guitar changed the meaning of the word "guitar". The invention and adoption of the cell phone changed the meaning of the term "phone" ("what, back in your day you couldn't take pictures with your phone?")
sherifffruitfly said,
October 7, 2013 @ 3:15 pm
let nobody unfamiliar with (at a minimum) wittgenstein, kripke, and dummett bother having this conversation.
Ken Brown said,
October 7, 2013 @ 5:34 pm
Most of the millions of species that are now called "insects" but were unknown 250 years ago probably would have been had they been discovered and described back then. But a few probably wouldn't have been. And quite a lot of things that were sometimes called insects back then now aren't. So the meaning of "insect" has changed, slowly and gradually shifting its range bug by bug.
Eric P Smith said,
October 7, 2013 @ 5:47 pm
@sherifffruitfly: I'm familiar with Kripke and Dummett, and I can't make head nor tail of Wittgenstein: will that do?
I think certain things can safely be said on the basis of common sense. I accept that the meaning of ‘mammal’ changed following the discovery of the platypus. But what changed the meaning was not the discovery: it was the response of the scientific community to the discovery. By contrast the meaning of 'prime number' (for example) does not change when a new prime number is discovered. Not one whit. A prime number is defined as a number divisible by only itself and 1, and I would defend strongly the view that the meaning of 'prime number' is wholly contained in that definition.
J. W. Brewer said,
October 7, 2013 @ 6:02 pm
We do not at present have a legal culture that ensures that only (or even predominantly, or even more than very rarely) people with a good working knowledge of wittgenstein/kripke/dummett become lawyers and judges, even at the Supreme Court level. I'd be happy if you could get people capable of understanding how e.g. the Pullum/Huddleston descriptive account of English grammar differs from what they dimly recall having learned from Miss Thistlebottom in 8th grade (and why it might be a more useful tool in certain contexts), but achieving even that seems like a bit of a pipe dream. What would be useful is an interpretive methodology (and/or a meta-methodology for conducting coherent debates over the pros and cons of rival interpretive methodologies) that can be plausibly learned and competently executed by the sorts of people with the sort of background and skill sets that we do have currently sitting on the bench and arguing in front of it.
David Golumbia said,
October 7, 2013 @ 6:33 pm
@ericpsmith,
Math is always a bad example to use in these cases, because it has characteristics very different from most of the rest of language.
I'll put the question back to you: what is your general, common-sense account of word meaning?
David Golumbia said,
October 7, 2013 @ 6:35 pm
I am asking, given word X, what formula or recipe would you say reliably constitutes the meaning of X?
David Golumbia said,
October 7, 2013 @ 6:40 pm
I will add that, at least for me, this is a trick question, because "the meaning of a word" is something about which there is no fact of the matter, in Quine's terms. The meaning of terms is always context-dependent in ways that Scalian absolutism about terms cannot allow. There is a fact about what a word means or doesn't mean to me, now, but that isn't a fact that can be objectively captured very well (although there are some limited exceptions), and it can't be extended to "the meaning."
So you may not find what is to me a trick question a trick question to you, and on your account it should have an answer. I don't think it does, but I'm not precluding your thinking it does or even offering an answer.
bks said,
October 7, 2013 @ 6:54 pm
At the time of the writing of the Constitiution spiders were part of the Linnaean order Insecta. Circa 1812 Cuvier created a new order called Arachnida into which they and their cousins were placed. This is a significant change in meaning.
–bks
J. W. Brewer said,
October 7, 2013 @ 7:08 pm
It may be worth keeping in mind that the sorts of language that is the typical subject of legal dispute tends not to be about prime numbers or even monotremes. One of the cases argued in the Supreme Court this morning hinged on the meaning-in-context of the phrase "in connection with the purchase or sale of one of the covered securities." http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-79_8nj9.pdf. Feel free to skim the transcript and point out places where a greater appreciation of Quine and/or Kripke by the justices and/or counsel might have led to more illuminating dialogue. Is there a fact-of-the-matter about what that phrase means-in-context? If so, is there a reliable-in-practice methodology for correctly ascertaining that fact-of-the-matter? If not (to either of the following two problems), what the heck should we expect judges to do? (The language in question is not from the 18th century, but from a statute enacted by Congress in 1998, although perhaps drawing on a pre-existing term of art that already had about six decades of interpretive gloss on it.)
Pflaumbaum said,
October 7, 2013 @ 7:45 pm
If I understand MYL correctly, the only obvious way of getting from Scalia's words, as reported, to a sensible and plausible meaning, is by interpreting them through a mode of analysis which that meaning implicitly disavows.
If so, this is a rare case where Jacques Derrida's view of what's going on when we read a text appears to be right.
Jonathan said,
October 7, 2013 @ 8:29 pm
I'm with Acillus. Laws have meanings at the time they are passed. The phrase "arms" may well be reinterpreted from time to time to follow technological change or an updated notion of defense, but it always means a weapon and never means the things hanging from your shoulders. None of the distinguished originalist legal academics (eg Randy Barnett) think that originalism settles anything all by itself. It simply provides a net and lines on the tennis court of interpretation, without which we are indeed in a Wittgensteinian world in which no law has any necessary meaning at all, or worse still, a deconstructionist world in world in which every law has a hidden aporia of not-law.
Carl said,
October 7, 2013 @ 8:33 pm
What he said seems tautologically true to me if you take it that by 'meaning' he's referring to something language independent. The theories goes that "words" in a "context" "refer" to "meanings." The same words can point to different meanings in different contexts, but meanings are the unchanging things that are pointed at.
For example, "two" "2" "II" "dos" and "二" are all words that refer to the same one meaning (modulo their different contexts of use/interpretation). "Twoness" will be around forever, even if we refer to it by different names at different times.
It's very Platonic, and somewhat unfashionable, but hardly incomprehensible or indefensible.
As I understand, he's proposing that we try to figure out what the underlying meaning a certain law originally referred to is, and then use that original meaning for making our decisions. I don't necessarily agree with that strategy (too dead hand-y for me), but I don't see the point with quibbling about how he explained it off the cuff in an interview and pretending like he's asserting the obviously absurd proposition that words never refer to different meanings in different contexts.
Eric P Smith said,
October 7, 2013 @ 8:57 pm
@David Golumbia: You ask what is my general, common-sense account of word meaning. It's 2:55am here and so I should have more sense but I'll have a go. I'll restrict myself to general terms, such as 'mammal', as it is general terms that I was talking about. This may be idiosyncratic, but when I talk about the "meaning" of the term 'mammal' I think much more about the sense, or intension, or connotation of the term 'mammal' than about the (for me) accidental matter of what mammals there happen to be. For me, the discovery of a new mammal doesn't change the "meaning" of the word 'mammal' at all. It is only when something exceptional like a platypus is discovered that the scientific community is led to reconsider the "meaning" (the sense) of the term 'mammal'.
For me this contrasts with singular terms, where "meaning" does include both sense and reference.
That is rough and ready, I know, but it's what common sense tells me and it is my starting point.
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[…] what do we learn from the text? (Besides the fact that Scalia holds hilariously insupportable notions about the properties of language—that "Words have meaning. And their meaning doesn't […]
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October 8, 2013 @ 5:14 am
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Haamu said,
October 8, 2013 @ 11:00 am
It's fun to imagine a vigorous certaintist like Scalia left stymied and sputtering after he's been confronted with a contradiction in his thinking like this. I doubt it would happen, though.
One avenue he might take:
The Founders' concern for establishing the legitimacy of the Constitution likely (and, for some of them, explicitly) proceeded under a Lockean theory of consent of the governed. I think we take it as obvious that where consent is concerned, what is salient is not what the offerer intends but what the consenter thinks he/she is consenting to. So the Constitution may belong to a class of utterances where Scalia's sole concern for the audience's understanding, rather than the author's intention, is justified.
Scalia could attempt to situate his interview comments, on the other hand, in a different class of utterances calling for a different interpretive standard. (Prof. Liberman's post does seem to rest on the assumption that there should be only one standard of interpretation for all utterances. This might indeed be a fair interpretation of Scalia's view; I haven't parsed him closely enough to say.)
Of course, Scalia doesn't need my help here, and would surely reject it, particularly if we had a chance to talk.
Had I been present at the adoption of the Constitution, I might have grounded my consent not in the clarity of any meaning I found there, but in a certain lack of clarity. "Yes, yes, that language is suitably ambiguous and adaptable by future generations that it stands a decent chance of still being a living document 200+ years hence," I might have thought.
As it turns out, I was born 6 or 8 generations later, on U.S. soil, of U.S. parents. For my entire lifetime, my consent to the legitimacy of that document has been entirely assumed; I've never been asked. The questions about what I'm really bound by go far beyond the merely linguistic. I've never gotten any sense that Antonin gets that.
ShadowFox said,
October 8, 2013 @ 2:20 pm
Am I the only one wondering if the second part of the quote recursively hinges on the first? "Words have meaning." What does that mean? Aside from the fact that each of the three words here has multiple interpretations, I can't get past the fact that this seems to be a stub. The reason we are arguing about the second part is because all context is missing from the first. And therein lies the problem because what Scalia appears to say is that context is no more important than a general temporal variable.
My guess is that Scalia is not bothered by such trifles as accusations of being a closet interpretivist. A man who believes in the devil is not likely to be bothered by internal inconsistencies of his own worldview.
Acilius said,
October 8, 2013 @ 5:26 pm
Haamu: "As it turns out, I was born 6 or 8 generations later, on U.S. soil, of U.S. parents. For my entire lifetime, my consent to the legitimacy of that document has been entirely assumed; I've never been asked." That's quite an interesting point. The Constitution was written, at one level of intentionality, as an advertisement for itself, an attempt to persuade the states to adopt it. How do we incorporate that aspect of the document into our reading of it?
To be sure Mr Justice Scalia characteristically bristles at any opinion that includes discussion of the legislative history of a statute, consigning such history to the esoteric realm of non-public meaning. In itself that's pretty weird, considering that legislative history usually gets a good deal more publicity than the final wording of a statute. I suspect that what Mr Justice S means by "public" is a mystery not to be resolved this side of the Resurrection. But considering that the proposed Constitution was printed up and distributed to voters before they elected the ratifying conventions, I don't see how even Mr. Justice S. could justify ignoring that level of intentionality with regard to the Constitution.
J. W. Brewer said,
October 8, 2013 @ 7:44 pm
These interpretative questions (as was noted way upthread) keep shading over into separate issues specific to the judicial function and its political legitimacy. If the meaning of a Constitutional text is ambiguous-to-indeterminate, that can either a) de facto give the federal judiciary more power because they can then pick (on presumably at least partially extralinguistic grounds) any option from the perhaps quite broad range of linguistically plausible meanings and impose it unilaterally on the country; or b) give the federal judiciary less power if, for example, the practice becomes that otherwise irreconcilable conflicts between one plausible reading of an ambiguous Constitutional text under which the thing Congress did is constitutional and another under which the same thing is unconstitutional are resolved in favor of Congress getting away with it (a position classically associated with James Bradley Thayer and revived in scholarly discussion from time to time — and in fact a position that empirically accounts for the Supreme Court's behavior in some but not most certainly not all areas of decisionmaking).
It often seems quite easy to show that natural language in general and/or a particular text is under close examination more potentially ambiguous than a naive folk linguistics might have supposed, but how one decides what course of practical action to pursue when the text that is supposed to tell you what to do may be ambiguous (in a context where it is not practicable to ask for clarification because among other things anyone you could plausibly ask is too likely to give an answer skewed by self-interest and hindsight bias) is not a question that the tools of linguistics are necessarily very helpful for answering. Although it would be interesting to see someone do a paper analogizing some of the canons of statutory construction to Gricean maxims.
Nathan Myers said,
October 8, 2013 @ 8:27 pm
A full chapter of Moby Dick quibbles over whether a whale is or is not a fish. I took it as a rant conducted tongue-in-cheek, with each statement meaning its literal self, its sarcastic opposite, and that statement's ironic opposite, and so on, in a sort of infinite summation converging to vapor. Still, it's not hard, given whale products' economic importance at the time, to believe weighty legal consequences turned on the choice, and that whales' fish-nature ended up fluctuating fractally by jurisdiction.
I'm can't guess how Justice Scalia would explain his application of such statutes, but I am certain that he would find a way to interpret them consistently with his principles and benefiting whichever party he favored at the outset.
Jay Jeffers said,
October 9, 2013 @ 12:13 am
"To make sense of what he said, we're forced to reason in terms of the circumstances of the interaction and his likely communication intentions — and as I understand it, these are both factors that he himself prefers to banish from the interpretive process."
Mark,
First, I think your posts are fascinating and this one is no exception. Second, and more to the point, maybe Scalia is inconsistent, I don't know. That is to say, perhaps Scalia doesn't have a well-worked out theory that would justify us giving him the (everyday, rather than lenient) charity to interpret him as saying something not ludicrous. But third, and most importantly, he's not a linguist or a philosopher – he's a judge.
So what's important is that we interpret him however we can to make sense of his method of legal interpretation. In other words, though your post is (as usual) very interesting, what we should care most about is Scalia's philosophy of *legal* interpretation, because there are quite plausibly special restrictions on that kind of thinking, for reasons we probably don't have to go into here. And the idea that words within a legal document have the same binding authority they had when adopted, and more importantly based only on the meaning they had when they were adopted, is not necessarily under-girded by intentionalism as Scalia usually means it.
Scalia is mostly bothered by going beyond the text to try to find private meaning like author intention, rather than relying on the plain meaning of the text. We could argue that meaning in the constitution is never plain, or that meaning is too objective (or as another commenter notes, "Plantonic") to be left to what the common person thought it meant (the Congress that adopted the Civil War amendments turned around and segregated the DC schools; presumably the average person's interpretation wasn't that these actions resulted in linguistic/logical invalidity). This would be attacking conservative "originalism" rather than the related but distinct idea (seemingly descended from legal positivism) that legal validity is derived from the objective meaning of the words at the time of legal adoption.
Now we could argue over whether even that is a workable or desirable method of constitutional interpretation, but understanding what Scalia said in the interview in terms of words retaining their meaning seems feasible enough (not withstanding his marveling at the modern scourge of cursing women and over why the devil was more active in the gospels than today, and worst of all his assertion that people don't believe in the devil because of the devil).
Jay Jeffers said,
October 9, 2013 @ 12:59 am
Sorry, can't resist adding:
Even if once we delve into Scalia's judicial philosophy we decided that his views are unpersuasive, that's a different stage of the analysis than evaluating relatively informal comments like those in an interview for a magazine. So, if we found reason to reject Scalia's preferred method of judicial interpretation we wouldn't necessarily be retroactively warranted in saying that his comments in the interview – on the stable meaning of words – were incoherent because of what we found. His comments in the interview were informal gestures at his preferred method of legal interpretation. Whether we agree or disagree with that method has no necessary bearing on whether his statements on meaning in the interview make any sense.
We should judge what Scalia meant in terms of (paraphrased) "reasoning about his probable intentions, given what else we know about his ideas," whether Scalia extends the general courtesy or not, because that's the most sensible way to do it. And our judgment on his legal philosophy should probably have no bearing on the sense that can be given to Scalia's words in the interview, because that's formal apples to informal oranges. Basically, Scalia is well-guarded here (but again the rest of the interview is as bad as everyone is saying).
Nick Lamb said,
October 9, 2013 @ 9:38 am
David Golumbia points at Richard Posner's review of Scalia's book, for the most part the review is an effective indictment of Scalia's approach as much as of the book itself. However at one point Posner claims that a state legislature:
“later repealed the statute, implying that cockfighting was again permissible”
But in fact it certainly implies no such thing! It is the common practice of the legislature with which I'm most familiar (the Westminster parliament) to repeal statutes which are obsolete purely in order to reduce the bureaucratic burden from time to time. If the Westminster parliament were to repeal some archaic law prohibiting cockfighting in some particular place or at some particular time it would certainly *not* intend by this to create an exception to the more modern legislation prohibiting all such barbaric practices outright at all times and in all places.
J. W. Brewer said,
October 9, 2013 @ 4:26 pm
Cockfighting is these days no longer officially thought civilized in most Anglophone cultures (although it was still legal in a handful of the mainland United States within my own adult lifetime) but remains both legal and somewhat popular in various non-Anglophone cultures (e.g. Puerto Rico, and, at least according to wikipedia, some parts of rural Northern France not too hard for British afficionados to travel to). Once upon a time "barbaric" (ok, probably "barbarikos") meant "stuff people who can't speak Greek do"; now it apparently means "stuff non-Anglophones do."
Posner's review references Judge Easterbrook, whose views perhaps differ both from Scalia's and Posner's and would probably be worth further investigation by those interested. (I remember Easterbrook writing a number of thoughtful and incisive things about statutory interpretation in particular way back in the '80's when I still had time to read legal theorizing not immediately relevant to whatever project I was working on at the time.) As quoted, Easterbrook seems to sign on with the possible position I suggested above that if the "originalist" project becomes too difficult in practice (because who really knows with any confidence what the heck long-dead people understood the text to mean 200+ years ago under different conditions?) it should mean that judges lose power rather than gain power. Posner, speaking for himself, makes the very interesting political argument that "textualism" is inherently right-wing under modern American conditions because consistently requiring competence and precision on the part of the drafters of legislation (rather than offering vague aspirational high-level direction in the expectation that judges will figure out the details as necessary) would supposedly make modern Leviathan-style government impossible in practice. That's an . . . interesting observation and it's rather hard to say which political faction ought to feel more insulted by it.
Acilius said,
October 10, 2013 @ 8:24 am
I've said it before and I'll say it again. J. W. Brewer's comments on this site add up to one of the most interesting blogs on the web. They really should be cross-posted somewhere else so as to be easier to find and to recommend to others. And of course there are other regular commenters here of whom the same might be said.
Joseph P. said,
October 11, 2013 @ 10:02 pm
Nick Lamb:
Repeals of repeals not reviving the original law has a statutory basis in UK law (Interpretation Act 1978 section 15). It might not be as clear in other common law jurisdictions.
Yosemite Semite said,
October 12, 2013 @ 12:32 am
Justice Scalia is obviously espousing the view of meanings of words expressed by Humpty Dumpty in Through the Looking Glass, and in the same tone: '"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."'
Brian said,
October 12, 2013 @ 7:19 am
Scalia has been known to cite dictionaries more or less contemporaneous with the drafting/passing of a given law. His idea is that the meaning of words understood at the time the law was put together is something that's not going to change.
Brian said,
October 12, 2013 @ 7:27 am
As at least one other person here has mentioned, Scalia's textualism (which I'm not necessarily defending, just explaining) is pretty much confined to legislative language, which is unique in that it's drafted by a large group of people (whose myriad intentions are near impossible to grasp), it's language is careful and precise, and it's required to be interpreted (hopefully fairly uniformly) by thousands of judges across the country over the course of many years.
So to say that Scalia's view is "paradoxical" because a poorly-formed remark of his has to be interpreted seems pretty disingenuous.
Joyce Melton said,
October 14, 2013 @ 12:33 am
Many of the people here and elsewhere seem to be to me to make an essential mistake. They seem to believe that Scalia is claiming a legitimate position about original meaning or even original intent. The evidence of his rulings indicates that he is simply verbalizing an excuse for rationalizing any interpretation he favors, and he is doing it in an ambiguous, essentially meaningless way so as to avoid being called upon to adhere to what he claims he is doing.
The man is not stupid, this is deliberate use, or misuse, of language to obfuscate one's true intentions. Scalia can use his "originalism" to twist any sort of reading he prefers out of the Constitution and he knows this.