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How Scalia is Wrong

Stanley Fish/Think Again, NYT Blog, April 11, 2006... permalink

In my last post I defended Supreme Court Justice Antonin Scalia’s dismissal of those who believe that the Constitution is a living organism that changes over time in response to societal change. (In a speech in February, he called them “idiots.”) The Constitution, I explained, is a document, not a Rorschach test. As a document – something intended to convey a particular message, not all messages – it has its own proper meaning distinguishable from the meanings one might prefer it to have, and it is the obligation of interpreters to figure out what that meaning is.

Justice Scalia’s detractors object to his originalism — the term of art for those who propose a single fixed meaning for the Constitution — because they believe it goes hand in hand with and is in fact an engine of his conservative politics. They complain, for example, that if the Scalia doctrine were strictly adhered to, as Mel Seesholtz writes on saveourcourts.org, “one would have to conclude that ‘all men are created equal’ means exactly what it … meant … in the eighteenth century,” and we would have to reinstate slavery, roll back women’s rights and refuse (as Justice Scalia has sometimes seemed to refuse) to recognize that homosexuals have any rights at all. This complaint is based on the mistake (made by Scalia’s fans from the other direction) of thinking that originalism is a method, a thesis that not only asserts a single meaning for the Constitution, but tells you exactly how to find it and thereby severely restricts what can be found.

But originalism, properly understood (and Justice Scalia himself might not understand it), is not a method; it is the answer to a question: What must you assume if you are seriously engaged in the act of interpretation? The answer is, you must assume that there is something to be interpreted. That also entails the assumption that the something to be interpreted was there before you or any other interpreter set to work. What that something is — what fixed meaning is there to be found — is neither identified nor delimited by the originalist argument. It could be anything; the only constraint is the requirement that it be the result of an honest effort to determine what the document originally meant.

Assuming that all men are created equal and that this principle (from the Declaration of Independence) finds its way into constitutional law via the 14th and 15th Amendments as the doctrine of equal rights, an interpreter is still left with the task of defining equality in the context of some legal dispute. For example, in the debate over affirmative action, part of the argument has been about whether equal rights means the right to equal access (hence no discriminatory restrictions) or the right to equal results (hence reserving jobs and college admissions for minorities). Both sides believe that equal rights are what the Constitution guarantees; they just disagree about what the phrase means. Of course, the issue of affirmative action was not within the framers’ contemplation, and some will think that we will have to choose between equal access and equal results without any help from them. But they have given us all the help we need by identifying equal rights as a constitutional concern. It is up to us to determine how that concern is to be honored in our present decisions.

That determination, however, cannot be made simply by declaring that the Constitution has a single meaning. While the originalist question — what is the meaning of the Constitution as drafted and ratified? — may be the right one, the question doesn’t answer itself. Nor does it confer legitimacy on some answers or rule others out of court in advance. You still have to sift arguments, parse language, immerse yourself in historical archives, and more. You still have to do the interpretive work, and knowing that you have to do it — knowing that you have to search for a meaning that predates your effort — is not the same as doing it.

In short, Justice Scalia’s originalism — his insistence that the Constitution has a fixed meaning — dictates no interpretive results, conservative or otherwise. In fact, no theory of constitutional interpretation dictates an interpretive result, for theoretical accounts do no interpretive work. Therefore it doesn’t matter whether you have the right one or the wrong one so long as you are really interpreting and not re-writing or making it up as you go along.

A living Constitution proponent may, in practice, be trying to figure out what the Constitution actually means rather than what society now needs it to mean. There would then be no relationship between the theoretical account of that practice and the actual unfolding of that practice. And if the living Constitution proponent actually did try to match his or her practice to that theory by laboring to refashion the Constitution so that it serves contemporary urgencies, he or she wouldn’t be interpreting at all, so once again there would be no relationship between the interpretive practice and the theory of it (because there would be no interpretive practice).

And so in the end I vindicate Justice Scalia again. But I part company with him when he tells us how to go about the task of specifying the original meaning either of the Constitution or of a statute. He believes that the text itself is the best key to its own meaning: if we focus on the meanings of the words as they would have been understood at the time of passage or ratification, we will be prevented from imposing the meanings we might prefer. This view is known as “textualism,” and when Justice Scalia urges it, he often opposes it to “intentionalism,” the view that meaning is to be identified with the author’s intention. We must decide, he often says, not on the basis of what is meant, but on the basis of what is said.

But this distinction — between the intender’s meaning and textual meaning — is undermined by one of the examples he cites to illustrate it. That example turns on a statute that provided for an increased jail term if a firearm was used in the commission of a crime. The defendant in a drug case offered to exchange a gun for cocaine, and the Supreme Court ruled that because he had “used” the gun in the course of performing an illegal act, he was subject to the longer sentence. (The case was Smith v. United States, 1993.) Justice Scalia is outraged and declares that this bad result would have been avoided if his colleagues had been “proper textualists.” For then they would have been constrained by the fact that “The phrase ‘uses a gun’ fairly connoted uses of a gun for what guns are normally used for, that is, as a weapon.”

But think again. Guns are used for many things and there are many meanings of the word “use” (more than 30 in the Oxford English Dictionary). The problem is how to sort through these meanings and uses in order to get to the right one. Consulting dictionaries won’t do it. Dictionaries sketch out the scope of the problem; they don’t solve it. Determining which use is statistically “normal” won’t do it, because usages are specific to context and not all contexts are normal.

The only way to do it is to ask yourself what would these particular people — legislators charged with the duty to frame clear and fair laws and contemplating the question of enhanced penalties for criminal acts — have had in mind when they wrote the phrase “uses a firearm”? What would they have wanted to penalize, a piece of barter or a threat of violence? It is the obvious answer to that question — a question not about textual meaning or the statistics of usage, but about intention — that tells us why Justice Scalia was right to dissent from his fellow justices who, rather than failing to be “proper textualists,” were illustrating the dangers of textualism. Having detached the words of the statute from the intentions of its drafters, they were free to range through the possible dictionary meanings of “use a firearm” and choose one that pleased them. This is exactly the result Justice Scalia hoped to avoid by insisting on textualism, but it is textualism that produces it.

The example also shows why one of the most often heard objections to intentionalism — it requires us to get inside the heads of interpreters and how do we do that? — is off the mark. The drafters of the statute are acting as institutional agents, and the intentions they might or might not have are the intentions appropriate to such agents. (Intentionalism is not a psychological thesis, but a rational one.) What was going on in the head of each individual congressperson — what were his or her private thoughts or motives or misgiving — is not to the point. The point is to ask, given the task they were jointly engaged in, what sense did each of them and of all of them intend for the words “use a firearm”?

This argument is likely to seem counterintuitive because it is usually assumed that the dictionary meaning of words directs us to intention rather than the other way around. But as the example demonstrates, only the specification of intention can stabilize the meanings of words because the dictionary gives you too many choices and no way of narrowing them. A dictionary, in fact, is less a list of meanings than a list of intentional uses, and more information than is provided by the text alone is required to determine which of those uses is being deployed on a particular occasion.

So Justice Scalia is right to champion originalism, but he backs the wrong version of it. Textual originalism doesn’t do the job because severed from intention the words of the text can mean too many things. In order to get at the meaning, you have to bring in — no, you have to start with — intention. That, however is not the end of the matter, but only its beginning because intentional originalism, like originalism in general, only tells you what your looking for; it doesn’t tell you how to find it. It doesn’t even tell you who the intender is — it could be Dick or Jane or God or Congress or the spirit of the age — and it certainly doesn’t tell you where to find the evidence of what the intender — be it he, she, they or it — intends.

To determine that (or at least try to; interpretation doesn’t always succeed) you have to do a lot of interpretive work. All I’m saying is that the point of that work will always and necessarily be the specification of intention.

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