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Vegas
- Thread starter Ian Fitzsimmons
- Start date
Ken Schramm
Ken Schramm
originally posted by Cole Kendall:
A bit of an aside but seeing "ad nauseum" nauseates me.
Ad nauseam. I hope you feel better. I don't. The people are still dead.
Ian Fitzsimmons
Ian Fitzsimmons
Keith Levenberg
Keith Levenberg
You're out of your element on this one.originally posted by Jonathan Loesberg:
Actually, the recent decision from "Scalia's day" overturned a tradition going back to the 1930s of ruling that the Second Amendment did not prohibit reasonable firearm regulation. My point is that even originalist interpretation does not automatically, or even by usual readings of English, produce the interpretation of the Second Amendment that originalists claim it does.
Jeff Grossman
Jeff Grossman
So-called "originalists" are interpreters, just like everybody else. Their readings are not provably more or less authentic. Scalia's snotty righteousness about it was always his second-worst failing.
Jonathan Loesberg
Jonathan Loesberg
originally posted by Keith Levenberg:
You're out of your element on this one.originally posted by Jonathan Loesberg:
Actually, the recent decision from "Scalia's day" overturned a tradition going back to the 1930s of ruling that the Second Amendment did not prohibit reasonable firearm regulation. My point is that even originalist interpretation does not automatically, or even by usual readings of English, produce the interpretation of the Second Amendment that originalists claim it does.
No doubt, but you haven't shown that. Part of my element, by the way, is hermeneutics. Scalia's have always seemed to me more a matter of convenience than he would cop to.
Keith Levenberg
Keith Levenberg
Scalia titled his book "A Matter of Interpretation." So if you think you're making a claim at odds with his philosophy here, you're not.originally posted by Jeff Grossman:
So-called "originalists" are interpreters, just like everybody else.
Keith Levenberg
Keith Levenberg
Example?originally posted by Jonathan Loesberg:
Scalia's have always seemed to me more a matter of convenience than he would cop to.
Jonathan Loesberg
Jonathan Loesberg
originally posted by Keith Levenberg:
Example?originally posted by Jonathan Loesberg:
Scalia's have always seemed to me more a matter of convenience than he would cop to.
The most obvious one is his contempt for looking at legislative history, even with regard to constitutional interpretation. The only basis for determining an original meaning would be to determine an originally intended meaning. If the text of the law isn't self-evidently clear--and it is evident that in these matters even "Jesus wept" could be made an ambiguous phrase--then what evidence is one to point to if one does not allow oneself legislative history. Scalia's originalism is really what in lit. crit. is called "textualism," and the history of criticism shows amply enough that texts don't interpret themselves. He won't manage to make the constitution either dead or enduring (depending on whether you prefer his joke or his ideal) that way.
One could go further into the fact that he has no criteria limiting his resources for interpreting language when it comes to what to ignore and what to focus on that really gives him every bit as much freedom as those evil, living document types.
And now I turn it back on you. The Toobin article on the history of 2nd amendment interpretation has already been cited. It only says what really even we uninstructed lit. crit. types knew. What does he get wrong? What makes all of us uninstructed types out of our dept.
Keith Levenberg
Keith Levenberg
I think the problem you're running into is that you are taking theories of interpretation that would apply to any written work and trying to apply them to legislative text without acknowledging any of the factors that make a piece of legislation a unique type of text. Those factors include the fact that there is no single author and thus no single intended meaning other than the one manifested in the text of the bill that got a majority vote and a presidential signature. Legislative history is not submitted to a vote. Further, legislators are fully aware that (bad) judges use legislative history to "interpret" a law and thus are notorious for trying to game the system by including statements in the legislative history that would not and could not receive majority approval.
One of the classic demonstrations of the folly of using legislative history to interpret a law is the prohibition on sex discrimination in the Civil Rights Act of 1964. The history indicates that the prohibition on sex discrimination was inserted in the bill by opponents of civil-rights laws who believed that banning sex discrimination would prevent the bill from passing. The law nevertheless passed. If you interpret the law according to its plain text, then sex discrimination is illegal. If you use legislative history in an attempt to discern the intent of Congress, then there really is no way to determine whether the Congress that passed the law intended to ban sex discrimination or not.
Lots more could be said on the merits or demerits of using legislative history to interpret a law. But the argument you made wasn't really for or against it. The argument you made was that Scalia's opposition to it was a matter of "convenience" rather than principle. I still don't see any evidence you have supplied in favor of that claim. You may disagree with the principle, but I can assure you it was a principle the man genuinely held. Indeed, your claim that eschewing legislative history makes the job of interpretation more difficult would appear to suggest that his principle is most INconvenient. (The answer, BTW, to your question "what evidence is one to point to if one does not allow oneself legislative history" is "plenty of things." Scalia's first answer would likely have been "a dictionary (but not Webster's Third!") (https://www.merriam-webster.com/words-at-play/antonin-scalia-v-merriam-webster, http://www.greenbag.org/v16n4/v16n4_articles_scalia_and_garner.pdf)
The fact is that Scalia perhaps more than anyone who ever served on the Court had a track record of following originalist principles to end results that he personally opposed.
Scalia would not have disagreed with you that his aim was to determine the "originally intended meaning." That's why he called himself an originalist while others of similar inclination might be more apt to call themselves textualists -- there is indeed a difference. A textualist may say that he is interested in determining the originally intended meaning (to a point), but his primary concern is not what was intended but what was written. Thus, a textualist may support enforcing what looks by all outwards indications to be a clerical error on the theory that that is the law passed by Congress and if Congress wishes to fix a clerical error, then Congress must be the one to do it. The fact that Congress did not intend the clerical error in the first place is immaterial.
I don't have time to read the Toobin article, but the only point that seems relevant to note here based on your description of it is that overturning an erroneous interpretation of an 18th century document that persisted since the 1930s does not present any problem to either an originalist or a textualist.
One of the classic demonstrations of the folly of using legislative history to interpret a law is the prohibition on sex discrimination in the Civil Rights Act of 1964. The history indicates that the prohibition on sex discrimination was inserted in the bill by opponents of civil-rights laws who believed that banning sex discrimination would prevent the bill from passing. The law nevertheless passed. If you interpret the law according to its plain text, then sex discrimination is illegal. If you use legislative history in an attempt to discern the intent of Congress, then there really is no way to determine whether the Congress that passed the law intended to ban sex discrimination or not.
Lots more could be said on the merits or demerits of using legislative history to interpret a law. But the argument you made wasn't really for or against it. The argument you made was that Scalia's opposition to it was a matter of "convenience" rather than principle. I still don't see any evidence you have supplied in favor of that claim. You may disagree with the principle, but I can assure you it was a principle the man genuinely held. Indeed, your claim that eschewing legislative history makes the job of interpretation more difficult would appear to suggest that his principle is most INconvenient. (The answer, BTW, to your question "what evidence is one to point to if one does not allow oneself legislative history" is "plenty of things." Scalia's first answer would likely have been "a dictionary (but not Webster's Third!") (https://www.merriam-webster.com/words-at-play/antonin-scalia-v-merriam-webster, http://www.greenbag.org/v16n4/v16n4_articles_scalia_and_garner.pdf)
The fact is that Scalia perhaps more than anyone who ever served on the Court had a track record of following originalist principles to end results that he personally opposed.
Scalia would not have disagreed with you that his aim was to determine the "originally intended meaning." That's why he called himself an originalist while others of similar inclination might be more apt to call themselves textualists -- there is indeed a difference. A textualist may say that he is interested in determining the originally intended meaning (to a point), but his primary concern is not what was intended but what was written. Thus, a textualist may support enforcing what looks by all outwards indications to be a clerical error on the theory that that is the law passed by Congress and if Congress wishes to fix a clerical error, then Congress must be the one to do it. The fact that Congress did not intend the clerical error in the first place is immaterial.
I don't have time to read the Toobin article, but the only point that seems relevant to note here based on your description of it is that overturning an erroneous interpretation of an 18th century document that persisted since the 1930s does not present any problem to either an originalist or a textualist.
Jonathan Loesberg
Jonathan Loesberg
I'm sorry, Keith, but the kind of difficulties you point to are all over every other kind of text. And you are making a fairly basic confusion in your discussion of the civil rights text between the ulterior intentions one may have behind writing something and the meaning-intention of what was written. The fact that those who wrote the sex discrimination language opposed the law does not change the fact that they meant the language they wrote to oppose sex discrimination. They just errantly thought that that would make the bill unpassable. The legislative history, in this sense, thus affirms the normally read meaning of the language, because it informs us that they intended it to mean that sex discrimination would be illegal. They just didn't intend it to pass, which is not the same thing. You may think this distinction is some liberal invention, but it is really hermeneutics 101.
Now it is also true that Scalia was an open exponent of textualism with regard to legislation since the constitution. It was his principle that he could read the language of a contemporary law any way the dictionary allowed and it was the job of the legislators to write clearly. By itself, this distinction between constitutional interpretation and the interpretation of all other laws seems to me to have no grounding if you think that the job of judges is to interpret the laws given to them and not the ones the texts allow them to write. Maybe in legal circles, the distinction between textualism and intentionalism is unclear, but we benighted lit. crit.types have long known the difference.
Even if there could be a justification for treating modern laws as a textualist and constitutional laws as an originalist, it remains true that Scalia is openly contemptuous of using anything but textualist principles for interpreting constitutional doctrine and, regardless of whether he has ever come to legal conclusions opposing his political beliefs (and I haven't seen much of that in the notorious cases), his principles of interpretation allow him an interpretive latitude that his ostensible originalism ought not.
With regard to the second amendment, you don't need to read Toobin to know that the 21st century rulings are based on ignoring the dependent clause in the sentence, whereas prior rulings believed in taking the sentence as a whole to determine its intent. I guess in thinking that that shift is not self-evidently right, I may be out of my depth, but you still haven't shown me how.
Now it is also true that Scalia was an open exponent of textualism with regard to legislation since the constitution. It was his principle that he could read the language of a contemporary law any way the dictionary allowed and it was the job of the legislators to write clearly. By itself, this distinction between constitutional interpretation and the interpretation of all other laws seems to me to have no grounding if you think that the job of judges is to interpret the laws given to them and not the ones the texts allow them to write. Maybe in legal circles, the distinction between textualism and intentionalism is unclear, but we benighted lit. crit.types have long known the difference.
Even if there could be a justification for treating modern laws as a textualist and constitutional laws as an originalist, it remains true that Scalia is openly contemptuous of using anything but textualist principles for interpreting constitutional doctrine and, regardless of whether he has ever come to legal conclusions opposing his political beliefs (and I haven't seen much of that in the notorious cases), his principles of interpretation allow him an interpretive latitude that his ostensible originalism ought not.
With regard to the second amendment, you don't need to read Toobin to know that the 21st century rulings are based on ignoring the dependent clause in the sentence, whereas prior rulings believed in taking the sentence as a whole to determine its intent. I guess in thinking that that shift is not self-evidently right, I may be out of my depth, but you still haven't shown me how.
...even "Jesus wept" could be made an ambiguous phrase..
Huh? How is "wept" ambiguous? It's rather binary: I cry/I don't cry.
originally posted by Keith Levenberg:
...the fact that there is no single author and thus no single intended meaning other than the one manifested in the text of the bill that got a majority vote and a presidential signature.
Law certainly *is* a blunt, non-organic instrument.
Keith Levenberg
Keith Levenberg
There is a lot to chew on there and I don't have the attention span to address each point in the detail that would be necessary to cover the whole field, but here goes.
1. First, you raise an excellent point about the distinction between intent and meaning. However, I'm afraid this puts you in Scalia's camp, rather than the side you seem to think you're on. The intellectual divide when it comes to statutory interpretation can roughly be described as textualists and originalists on one side vs. purposivists/intentionalists on the other. The former oppose the use of legislative history not least because it is far more probative of what you call "ulterior intentions" than meaning, and those intentions are irrelevant for exactly the reasons you describe. It is possible for a body of 435 legislators and one president to express the same meaning. It is wildly improbable for them all to have the same intent. Originalists and textualists regard the statutory text as the source of that meaning, and the legislative history as probative of their (completely irrelevant) intent.
A good litmus test for intellectual consistency on this issue is, what do you think of Presidential signing statements? You could call those things "executive legislative history." With Congressional legislative history, Congress passes a law that says X but the statements of Congressmen saying that they intend Y are used as a justification for saying the law means Y. Presidential signing statements can do the same thing. The law says X but the President signing the law makes a statement indicating that he construes it to mean Y. Do you give the same credence to the Presidential signing statement that you give to the Congressional legislative history? There is no principled reason not to do so. Yet I have never met anyone who supports consulting legislative history who also supports giving the same credence to Presidential signing statements.
2. "It was his [Scalia's] principle that he could read the language of a contemporary law any way the dictionary allowed" -- This is not remotely true.
3. "this distinction between constitutional interpretation and the interpretation of all other laws seems to me to have no grounding" -- I agree, and I'm not aware of anyone who disagrees. Every school of interpretation I have ever encountered applies the same method to statutory and constitutional text.
4. "regardless of whether he has ever come to legal conclusions opposing his political beliefs (and I haven't seen much of that in the notorious cases)" -- Texas v. Johnson, 491 U.S. 397 (1989), is a famous example. You can also read up on his track record for protecting the rights of criminal defendants. http://www.slate.com/articles/news_...as_often_a_friend_of_criminal_defendants.html
5. "his principles of interpretation allow him an interpretive latitude that his ostensible originalism ought not" -- This claim is virtually incomprehensible to me. Nobody will deny there is some interpretive latitude in some cases (depending on the law at issue), though in 99.9% of cases the interpretation is clear enough that even far-left judges and far-right judges don't find much to disagree on. I can not even *begin* to wrap my head around the idea, however, that originalism offers *wider* interpretive latitude than a doctrine of interpretation whose guiding principle is along the lines of "do justice according to society's evolving standards of justice."
6. "the 21st century rulings are based on ignoring the dependent clause in the sentence, whereas prior rulings believed in taking the sentence as a whole to determine its intent" -- This is incorrect both as to Heller and as to the prior rulings. Heller addressed the "well regulated Militia" clause in depth. Regardless, we can probably all agree that the Second Amendment is not a model of smart legislative drafting. The "Militia" language is plainly a statement of the *reasons* for enacting the language that follows, yet it is the only amendment in the Bill of Rights that includes such a prefatory statement of reasons and it is far from clear how such a statement should alter (if at all) the meaning of the language that follows. A law that provides "All citizens must wear blue on Fridays" imposes the same legal obligations as a law that provides "All citizens must wear blue on Fridays, blue being a pretty color and all." If you have a different view based on how dependent clauses ought to be interpreted, that's great, but once again you're following Scalia's method.
1. First, you raise an excellent point about the distinction between intent and meaning. However, I'm afraid this puts you in Scalia's camp, rather than the side you seem to think you're on. The intellectual divide when it comes to statutory interpretation can roughly be described as textualists and originalists on one side vs. purposivists/intentionalists on the other. The former oppose the use of legislative history not least because it is far more probative of what you call "ulterior intentions" than meaning, and those intentions are irrelevant for exactly the reasons you describe. It is possible for a body of 435 legislators and one president to express the same meaning. It is wildly improbable for them all to have the same intent. Originalists and textualists regard the statutory text as the source of that meaning, and the legislative history as probative of their (completely irrelevant) intent.
A good litmus test for intellectual consistency on this issue is, what do you think of Presidential signing statements? You could call those things "executive legislative history." With Congressional legislative history, Congress passes a law that says X but the statements of Congressmen saying that they intend Y are used as a justification for saying the law means Y. Presidential signing statements can do the same thing. The law says X but the President signing the law makes a statement indicating that he construes it to mean Y. Do you give the same credence to the Presidential signing statement that you give to the Congressional legislative history? There is no principled reason not to do so. Yet I have never met anyone who supports consulting legislative history who also supports giving the same credence to Presidential signing statements.
2. "It was his [Scalia's] principle that he could read the language of a contemporary law any way the dictionary allowed" -- This is not remotely true.
3. "this distinction between constitutional interpretation and the interpretation of all other laws seems to me to have no grounding" -- I agree, and I'm not aware of anyone who disagrees. Every school of interpretation I have ever encountered applies the same method to statutory and constitutional text.
4. "regardless of whether he has ever come to legal conclusions opposing his political beliefs (and I haven't seen much of that in the notorious cases)" -- Texas v. Johnson, 491 U.S. 397 (1989), is a famous example. You can also read up on his track record for protecting the rights of criminal defendants. http://www.slate.com/articles/news_...as_often_a_friend_of_criminal_defendants.html
5. "his principles of interpretation allow him an interpretive latitude that his ostensible originalism ought not" -- This claim is virtually incomprehensible to me. Nobody will deny there is some interpretive latitude in some cases (depending on the law at issue), though in 99.9% of cases the interpretation is clear enough that even far-left judges and far-right judges don't find much to disagree on. I can not even *begin* to wrap my head around the idea, however, that originalism offers *wider* interpretive latitude than a doctrine of interpretation whose guiding principle is along the lines of "do justice according to society's evolving standards of justice."
6. "the 21st century rulings are based on ignoring the dependent clause in the sentence, whereas prior rulings believed in taking the sentence as a whole to determine its intent" -- This is incorrect both as to Heller and as to the prior rulings. Heller addressed the "well regulated Militia" clause in depth. Regardless, we can probably all agree that the Second Amendment is not a model of smart legislative drafting. The "Militia" language is plainly a statement of the *reasons* for enacting the language that follows, yet it is the only amendment in the Bill of Rights that includes such a prefatory statement of reasons and it is far from clear how such a statement should alter (if at all) the meaning of the language that follows. A law that provides "All citizens must wear blue on Fridays" imposes the same legal obligations as a law that provides "All citizens must wear blue on Fridays, blue being a pretty color and all." If you have a different view based on how dependent clauses ought to be interpreted, that's great, but once again you're following Scalia's method.
Jonathan Loesberg
Jonathan Loesberg
The issue is not "originalism" vs. something else but "textualism" vs. what lit. crits. call intentionalism. And I should say that as a literary critic, I am far more a textualist than an intentionalist. But while it is true that looking for historical evidence of intention frequently turns up irrevelant kinds of intentions, it isn't doomed to do so. Lots of times, authors make statements that directly declare their intentions (in literature, usually after the fact in ways that make them suspect, but in other forms of textual history as part of their writing). It is, of course, true that distinguishing between good and bad evidence is chancy and leads to mistakes, but this a reason to do it carefully, not a reason not to do it at all.
"Textualism," in literary criticism began with the concept of the intentional fallacy, which was precisely the declaration that the kinds of evidence Scalia has contempt for would lead you astray. It was based on the presumption that the language of the text was sufficient to provide a best interpretation. The problem with this claim is that it is obviously empirically false. If texts always provided the best interpretation of themselves, we wouldn't need canons of interpretation and, even with all known difficulties in construing, we would ultimately arrive at agreed upon interpretations even in institutions that don't have Supreme Courts. In interpreting literary or philosophical or historical texts, where political issues aren't always at stake, one might think it would be easier and more certain. The fact is, though, that their are disagreements in all of these fields, some of them so ongoing, that the arguments just get abandoned. Ambiguity is one of those faults that language is heir to. The question is how to deal with ambiguity when it befalls us and the answer can't be just to deny that it will befall us or rule out forms of evidence in advance based on the fact that SOMETIMES that evidence isn't very good. I would agree with a statement something like "the best evidence of intention to any given reader is what the text says and when the text seems to have a clear meaning to that reader, no amount of external, biographical or historical evidence, will overcome textual evidence." But that sentence doesn't work as a system of interpretation, but rather a psychological comment on how readers understand things. For better or worse, textualism condemns you to giving up original intent as your criterion if it is the only evidence you use. And it condemns you, whether you believe it or not, to reading the laws according to your own readerly propensities. As E.D. Hirsch constantly said, if you aren't interpreting what the author intended, you are only interpreting what you are construing, and if you limit yourself to the text, that is what you are doing.
You say that I am wrong in thinking that the 21st century re-interpretation of the Second Amendment ignores the dependent clause. But your response-
The "Militia" language is plainly a statement of the *reasons* for enacting the language that follows, yet it is the only amendment in the Bill of Rights that includes such a prefatory statement of reasons and it is far from clear how such a statement should alter (if at all) the meaning of the language that follows. A law that provides "All citizens must wear blue on Fridays" imposes the same legal obligations as a law that provides "All citizens must wear blue on Fridays, blue being a pretty color and all." If you have a different view based on how dependent clauses ought to be interpreted, that's great, but once again you're following Scalia's method
is precisely an argument for ignoring it. I didn't say they didn't give a reason for ignoring it. It's just not a very good reason. By the way, to the extent that Scalia's "first step," is textualism, you are right that I do follow him. But his method means that if the text doesn't read itself, you throw up your hands about it. In this case, you don't ask what the amendment means to achieve, but merely which part of it you can construe. In my business, that's incomplete criticism, and the danger that you might get wrong judging what they are trying to achieve is nothing as compared to the certainty that by ignoring that issue, you will certainly get the law wrong.
"Textualism," in literary criticism began with the concept of the intentional fallacy, which was precisely the declaration that the kinds of evidence Scalia has contempt for would lead you astray. It was based on the presumption that the language of the text was sufficient to provide a best interpretation. The problem with this claim is that it is obviously empirically false. If texts always provided the best interpretation of themselves, we wouldn't need canons of interpretation and, even with all known difficulties in construing, we would ultimately arrive at agreed upon interpretations even in institutions that don't have Supreme Courts. In interpreting literary or philosophical or historical texts, where political issues aren't always at stake, one might think it would be easier and more certain. The fact is, though, that their are disagreements in all of these fields, some of them so ongoing, that the arguments just get abandoned. Ambiguity is one of those faults that language is heir to. The question is how to deal with ambiguity when it befalls us and the answer can't be just to deny that it will befall us or rule out forms of evidence in advance based on the fact that SOMETIMES that evidence isn't very good. I would agree with a statement something like "the best evidence of intention to any given reader is what the text says and when the text seems to have a clear meaning to that reader, no amount of external, biographical or historical evidence, will overcome textual evidence." But that sentence doesn't work as a system of interpretation, but rather a psychological comment on how readers understand things. For better or worse, textualism condemns you to giving up original intent as your criterion if it is the only evidence you use. And it condemns you, whether you believe it or not, to reading the laws according to your own readerly propensities. As E.D. Hirsch constantly said, if you aren't interpreting what the author intended, you are only interpreting what you are construing, and if you limit yourself to the text, that is what you are doing.
You say that I am wrong in thinking that the 21st century re-interpretation of the Second Amendment ignores the dependent clause. But your response-
The "Militia" language is plainly a statement of the *reasons* for enacting the language that follows, yet it is the only amendment in the Bill of Rights that includes such a prefatory statement of reasons and it is far from clear how such a statement should alter (if at all) the meaning of the language that follows. A law that provides "All citizens must wear blue on Fridays" imposes the same legal obligations as a law that provides "All citizens must wear blue on Fridays, blue being a pretty color and all." If you have a different view based on how dependent clauses ought to be interpreted, that's great, but once again you're following Scalia's method
is precisely an argument for ignoring it. I didn't say they didn't give a reason for ignoring it. It's just not a very good reason. By the way, to the extent that Scalia's "first step," is textualism, you are right that I do follow him. But his method means that if the text doesn't read itself, you throw up your hands about it. In this case, you don't ask what the amendment means to achieve, but merely which part of it you can construe. In my business, that's incomplete criticism, and the danger that you might get wrong judging what they are trying to achieve is nothing as compared to the certainty that by ignoring that issue, you will certainly get the law wrong.
Keith Levenberg
Keith Levenberg
The argument I made about the militia clause is my own, not Scalia's. If you want Scalia's view, read Heller - I guarantee you he did not "ignore" the clause. "his method means that if the text doesn't read itself, you throw up your hands about it" -- It doesn't mean that, and he certainly never would have claimed that it did.
Again, there is an important distinction between legislative text and literary text that I don't believe you are giving its due. Let's assume arguendo that certain floor statements extrinsic to the statutory text are probative of the actual intentions of the people who passed it, to whatever extent that's possible for two bodies with 435 people with different intentions. The problem is that there is a constitutional constraint that the law of the land is limited to the bill that got a majority vote from both houses of Congress and the President's signature. It doesn't *matter* if Congress collectively, genuinely intended something other than what they wrote. The relevant question (which Scalia would always ask) was, did Congress vote on this statement? Did they pass it? Did they send it to the President's desk for his signature? Did he sign it?
I don't think many people appreciate how topsy-turvy the world was in this respect before Scalia came along. There is a Marshall opinion with a statement along the lines of, "The legislative history being inconclusive, we turn to the words of the statute...."
Again, there is an important distinction between legislative text and literary text that I don't believe you are giving its due. Let's assume arguendo that certain floor statements extrinsic to the statutory text are probative of the actual intentions of the people who passed it, to whatever extent that's possible for two bodies with 435 people with different intentions. The problem is that there is a constitutional constraint that the law of the land is limited to the bill that got a majority vote from both houses of Congress and the President's signature. It doesn't *matter* if Congress collectively, genuinely intended something other than what they wrote. The relevant question (which Scalia would always ask) was, did Congress vote on this statement? Did they pass it? Did they send it to the President's desk for his signature? Did he sign it?
I don't think many people appreciate how topsy-turvy the world was in this respect before Scalia came along. There is a Marshall opinion with a statement along the lines of, "The legislative history being inconclusive, we turn to the words of the statute...."
Jayson Cohen
Jayson Cohen
I wish I felt I could join this discussion, as I have a strong view on certain of these issues, but as a litigator who has to construe the Constitution and statutes on occasion, I feel like I cannot take a public position on the right way to interpret them. Keith, I applaud you for navigating nonetheless. And Jonathan for challenging.
One thing I can add is that, whether you agree with this mode of Constirutional interpretation or not, what may help bridge the gap here is the part of originalist theory that seeks to understand the meaning of the Constitutional provisions as reflecting the common law in existence at the time of ratification, even if one views this as a proxy for original intent. I am not saying I subscribe to that or that the subjective proof and viewpoint issues you discuss are not present, but if that is the focus of the understanding sought, it is in principle an objective inquiry. And one that common law judges are as well situated as most, and were accustomed at least from a historical perspective, to explore.
One thing I can add is that, whether you agree with this mode of Constirutional interpretation or not, what may help bridge the gap here is the part of originalist theory that seeks to understand the meaning of the Constitutional provisions as reflecting the common law in existence at the time of ratification, even if one views this as a proxy for original intent. I am not saying I subscribe to that or that the subjective proof and viewpoint issues you discuss are not present, but if that is the focus of the understanding sought, it is in principle an objective inquiry. And one that common law judges are as well situated as most, and were accustomed at least from a historical perspective, to explore.
I have to add that, although I have nothing substantive to add to this discussion, I find it fascinating and instructive nonetheless (to the extent that I can follow the flow of the argument at all). And I must applaud all involved at the lack of invocation of Godwin's Rule to date.
Mark Lipton
Mark Lipton
Jonathan Loesberg
Jonathan Loesberg
The question isn't whether the Congress, or anyone, can meaning something other than what they wrote. If I say "red" I may mean "blood red" or "scarlet," but I can't mean "blue," unless I don't speak the language. The question is about ambiguous language. If you don't use all evidence available to you, with all due precautions, you are effectively condemning yourself to reading according to your own lights (even if those lights are your lights about grammar). I know that Scalia doesn't think he's throwing up his hands. That's what I think he's doing. It goes back to my central claim: textualism can't always get you intent and it's just as amenable to subjective misuse as the practices he disdains, if not moreso.
I'm not mostly talking about literary texts. Many of them mean to be ambiguous and those that didn't mean to be but just we can leave in that state without much danger. Indeed the dangers of interpreting a poem incorrectly (where "incorrectly" means "not what the author intended") are trivial to nonexistent and a coherent argument can be made that we ought to interpret artworks in whatever way makes them better artworks for us (although that's not a position I would particularly defend in that extreme form). If you applied Scalia's standards to interpreting other kinds of historical texts though (as a last resort rather than a first resort--it is the best first step), you would be condemned never to understand history.
Heller explicitly says that the dependent clause announces a purpose to the law but does not restrict the scope to that purpose. I take that as effectively determining to ignore the dependent clause as controlling the meaning of the amendment. I didn't say he ignored the issue of what the dependent clause is doing there. I said he determined that he could ignore the clause in construing the meaning. Your right that I'm not sure this is even good textualism, since a real textualist tries to account for the whole text and not simply the parts that can be construed without difficulty. But whether it's good textualism or not, it isn't remotely persuasive as an account of original intent.
I'm not mostly talking about literary texts. Many of them mean to be ambiguous and those that didn't mean to be but just we can leave in that state without much danger. Indeed the dangers of interpreting a poem incorrectly (where "incorrectly" means "not what the author intended") are trivial to nonexistent and a coherent argument can be made that we ought to interpret artworks in whatever way makes them better artworks for us (although that's not a position I would particularly defend in that extreme form). If you applied Scalia's standards to interpreting other kinds of historical texts though (as a last resort rather than a first resort--it is the best first step), you would be condemned never to understand history.
Heller explicitly says that the dependent clause announces a purpose to the law but does not restrict the scope to that purpose. I take that as effectively determining to ignore the dependent clause as controlling the meaning of the amendment. I didn't say he ignored the issue of what the dependent clause is doing there. I said he determined that he could ignore the clause in construing the meaning. Your right that I'm not sure this is even good textualism, since a real textualist tries to account for the whole text and not simply the parts that can be construed without difficulty. But whether it's good textualism or not, it isn't remotely persuasive as an account of original intent.