Originalism and the Federalist Society

On Saturday, I was at the Federalist Society meetings in Washington, DC, for a lunch-time debate on my new book, Radicals in Robes (inflammatorily and probably unfortunately named, I know). The specific topic was whether originalists are indeed "radicals"; Charles Cooper, a Washington lawyer, spoke in defense of originalism. He and others made a number of good points, of course, but there was a persistent claim that seemed puzzling. The claim was this: Interpretation just IS a matter of attempting to elicit the speaker's intention. Hence originalism, understood as a search for the original intent, follows from the very nature of interpretation.

This claim seemed puzzling for two reasons. First, the most prominent originalists, including Justice Scalia, do not focus on the "speaker's intention"; they focus on the original public meaning. The difference is important, because those who focus on the original public meaning do not need to ask questions about psychology or subjective understandings.

Second, and more fundamentally, there is nothing that interpretation just IS. In interpreting the statements of our friends, of course, we probably do best to try to understand their intentions. But in law, interpretation can be more than one thing. In contract law, we might be concerned with original meaning (though we aren't always concerned with that); in statutory interpretation, we might be concerned with current rather than original meaning (as we sometimes are); in constitutional law, it's a question whether or not we should be concerned with original meaning. Justice Scalia, for example, argues that originalism is the best approach to constitutional interpretation (in a nice piece in the U. Cin. L. Rev., called Originalism: The Lesser Evil), without arguing that interpretation just IS anything at all. 

In my view, originalism is not the best approach to constitutional interpretation, among other things because it would so greatly unsettle both our rights and our institutions (hence it would be radical). But that point can be debated. What seems hard to defend is the idea, apparently widespread, that interpretation just IS a search for original intention, or original meaning.

Comments

[Jason Steed]

I am coming from a background in literary studies (Ph.D. in English), and I'm not thoroughly versed in legal terminology, but I find it almost incredible that a large body of scholars in 2005 would still be making claims like this, i.e. that interpretation just IS a search for "original" or "intended" meaning. Admittedly, we in literary studies, with all our postmodernist inklings, are probably perceived as the radical margin by mainstream academia. But have Barthes and Derrida et al really had so little effect on other areas of study (besides literature) that are concerned with textual interpretation?

Authorial intent is impossible to access. We have a text, that is all. The only way to "know" authorial intent is via interpretation, and one interpretation has value over another only insomuch as the community finds it more compelling than the other. Any attempt to go "outside" the text, for "evidence" to support a given interpretation, is itself an interpretive act -- the interpretation of other texts. (Even the author's own explanations of what she "meant" in text A form another text, text B, that is subject to interpretation.)

The quest for "original" meaning, in other words, operates on the metaphor that meaning is singular and "found" -- that it is locatable in the past -- when the more apt metaphor is that meaning is multiple and "made" in the present. Interpretation creates meaning, it doesn't "find" it. Any interpretation of "past" meaning(s) takes place within the context of the present historical moment, and is thus affected by present historical, cultural, and political conditions and contexts. That interpretation, then, is necessarily a product of the present -- not a discovery of the past. What we have (always) is a competition between multiple interpretations that vie for the community's acceptance and validation. The hunt for "original" meaning is merely one rhetorical strategy for promoting a particular contemporary interpretation in the community.

Everything I'm saying here is old hat to mainstream scholars of literature (i.e., scholars of textual interpretation). Sure, there are those in literary studies who still cling to pre-postmodernist ideals of authorial intent -- but they are certainly a small minority. I'm really surprised that such a large body of legal scholars (also scholars of textual interpretation) is still so enamored with the treasure hunt for "original" meaning.

[Rodney]

I think Mr. Steed misses the point when it comes to the interpretation of legal texts vs. literary texts. Legal texts, and the constitution in particular, are rooted in theories or notions of democracy. On that level, then, it is important for the sake of legitimacy and stability of government that that meaning be “found.”

[Probatio Viva]

Mr. Steed and Prof. Sunstein,
What two or three (or four) seminal works about interpretation, from outside law, would you recommend that we lawyers read to understand better the approach to interpretation that takes meaning to be multiple and made?
Thank you!

[Jason Steed]

How does a "root" in theories or notions of democracy change the practice of interpretation and require the notion of "found" meaning?

I think a healthy argument can be made that the metaphor of "making" meaning is far more democratic than the notion of "found" meaning.

"Found" meaning requires that one interpretation be the "correct" interpretation (we are in the business of "finding" what that "correct" interpretation is, under this rubric). This creates, obviously, a hierarchy of interpretations, with the one "correct" one at the top. And the act of interpreting necessarily becomes the business of "experts" -- so we get a hierarchy of interpreters who are more or less "qualified" to interpret, i.e. to "find," the "correct" meaning that is then delivered to the general community. The general community, theoretically, has no voice in this interpretation, because they are not "experts," and after all, this is the "correct" meaning, regardless of what the community might think.

Clearly, this is a top-down and hierarchical approach -- which is perhaps why it is popular among conservatives.

But if meaning is "made," and is the product of the present scene of competing interpretations, then the "correct" interpretation is simply that interpretation that is most compelling and which can be agreed upon -- i.e. accepted and validated -- by the community. This would seem to be a much more democratic approach than the more dogmatic project of "finding" one "true" meaning.

But again, I'm not a legal scholar (yet). Perhaps you can explain further your dismissal of what I was saying?

[Jason Steed]

Obviously my most recent post was directed to Rodney. For Probatio, I would recommend just about any introductory text on literary theory, and particularly texts that introduce the ideas of reader-response criticism, or deconstruction, or "postmodernism" and "poststructuralism" in general. From the introductory texts, you will get lists of suggested readings for more in-depth study of particular theorists and/or theories.

[MR]

It seems that Mr. Steed will be going to law school soon. Once enrolled he will learn (hopefully) that lawyers and english professors interpret texts differently because they are engaged in radically different pursuits. Moreover, he will also learn (again, hopefully) that lawyers already understand many of the obvious points he makes in his post (e.g. "The hunt for 'original' meaning is merely one rhetorical strategy for promoting a particular contemporary interpretation in the community.").

[Jason Steed]

MR,
Part of my point was that I thought the points I was making were obvious -- I was expressing some surprise at what seems to be a lack of awareness of their obviousness.

In other words, it's my impression that most originalists (is that what they're called?) are in the pursuit of "original" meaning because they really believe that such a thing exists and is accessible ("findable"). It's my impression that they do not see originalism as merely a rhetorical strategy for promoting their present interpretation (by selling it as "original") -- rather, they see it as a genuine endeavor to "discover" "original" meaning.

If I'm wrong in these impressions, so be it. I'm glad to hear it. But if I'm not, then my surprise remains.

And how, exactly, are the pursuits of lawyers and English professors "radically different" from one another? Both are engaged in textual interpretation, no? What is the nature of the radical difference between them?

[anon]

steed,

1) derrida and barthes have some purchase in legal interpretation (see Ronald Dworkin and American Legal Realism)

2) originalism is not the exclusive domain of conservatives, there are liberal originalists (akhil amar) and conservative scholars who advocate a more nuanced approach (Richard Posner)

3) Most originalists do not believe there is a fixed meaning that can be found; rather, they argue originalism provides methodological constraints on a judge's discretion and that is why it should be adopted

4) Legal interpretation differs from literary interpretation because as a formal matter judges and lawyers cannot embrace derrida without being vilified by the legal community.

the debate over constitutional interpretation happens along different dimensions that the debate over literary interpretation. legal scholars are concerned with problems of legitimacy and stability and the profound political consequences of constitutional decisions (see Roe v. Wade and Bush v. Gore). I don't mean to imply that this cuts against a more nuanced approach or to diminish the work of literary scholars, just to point out that the concerns are different. Though, the normative conclusions may be the same.

[Dave]

This is really interesting. I share the skepticism that originalism "is" legal interpretation in its purest form. The ideal of uncovering a speaker's intent is attractive, but I think the practical limitations that complicate this task are more salient.

First is the point that Cass and Jason make, that original intent is indeterminate. First, who is the author whose intent we seek to uncover? E.g., is the Constitution's author its drafters, or the individual who proposed the clause at issue, or the delegates who voted for it? Second, when we say that we want to uncover what the original intent was, do we mean the intent at the moment of framing? If we do, that limits our ability to uncover that meaning, since most opinions and beliefs shift over time. Plus, what is the implication of such shifts in belief? To take a (possibly inapposite) literary analogy, did "Lord of the Flies" lose its thematic significance when William Golding publicly repudiated it late in his career?

Second, it's questionable whether legal texts even have a single transcendent meaning. Rather, given the nature of the common-law system, their meaning is expressed in individual applications to particular facts. This makes it difficult to say what a given clause or statute means in the abstract, or even if such a question makes sense. Rather, it makes more sense to say what meaning law has in relation to particular circumstances. This idea limits originalism's contemporary relevance. It is impossible, for example, to say anything about whether the framers thought the Copyright Clause would apply to the internet; they obviously couldn't have been thinking about this issue at all.

It's telling that even the most committed originalists shrink from the intentionalist view. Indeed, Scalia refers to himself as a "faint-hearted originalist" in the "Lesser Evil" essay Cass mentions. (The reference is in light of Scalia's admission that he would find drawing and quartering unconstitutional under the Eighth Amendment even though it was common practice at the time of the Constitution's framing.) It seems that the more radical views, unsurprisingly, persist in the think tanks and the academic literature rather than in the judiciary itself.

[Jason Steed]

Anon,
Your clarifications are appreciated. My responses:
1. Good to know -- are there other sources like Dworkin's?

2. I didn't mean to imply that originalism was the "exclusive" domain of conservatives; I only said it was popular among conservatives. (Certainly more so than among liberals.) And of course no person is monolithically "conservative" or "liberal." I would argue that originalism is in itself conservative, but that would not proscribe generally (or generically) "liberal" individuals or groups from espousing originalism.

3. Doesn't methodology go a long way toward determining outcome? I understand the distinction you're trying to make here, I think -- but it still sounds like originalism is advocating an approach that will "find" the "correct" meaning. It just sounds like you're couching it in "methodological constraints" so as to make it sound less narrow and dogmatic. That's fine; but the objective of these methodological constraints, I take it, is still to "find" the "most correct" (and "original") meaning, while eliminating an array of other possible interpretations as inconsiderable, being outside these constraints.

4. The fact that the legal community will villify one who embraces Derrida et al doesn't really tell me what the "radical difference" is between legal interpretation and literary interpretation. It tells me how certain approaches to interpretation are received in certain communities. But how does the pursuit of interpretation itself differ? How is the objective of interpretation different in law from in literature?

Literary scholars are also concerned with legitimacy, history, and the profound political consequences of textual interpretation -- especially over the past 30-40 years. I'm not sure the differences in concern and objective are quite so great as you and others are suggesting. Certainly the debates (or discourses) of the two fields occupy...well, two different fields. But I see a lot of overlap, not a "radical difference."

[Jason Steed]

Dave,
Your references to common law and the constant changing of contexts and applications are precisely what make it so surprising, to me, that there are any serious arguments in favor of originalism to begin with. It seems the very nature of common law entails a recognition of shifting, contextually based meanings and repudiates the notion of any singular "original" or "correct" meaning.

If originalism is really, in effect, simply an advocation of conservative interpretation, then I'm fine with that. (I'm not sure I would espouse it, but I can appreciate the position.) But the claims of and arguments for "originalism" as I understand them seem to be doing much more than that, rhetorically. And I find this rhetorical stance basically untenable.

But again, I admit openly that my understanding of these things is still elementary.

[Rodney]

Mr. Steed, your “made” theory of interpretation as better democratic practice is not at all distinct from your “top down” theory of interpretation as less democracy theory when it comes to what judges actually do. In both of these situations, only a hand full of “experts,” namely members of the US Supreme Court, will be the final arbiters of what the law “is.” The “community” you imagine in your “made” theory is nonexistent in actual practice. Regardless of how “made” meaning is, it will indeed be “made” by a specific group in our governmental hierarchy – a group of “experts” on our courts.

You also state that a found meaning of interpretation requires that meaning be correct. You seem unwilling to add that “made” interpretive practice too requires that meaning be “correct.” Indeed it does. As a matter of legal principal, even if this meaning be settled for only a second, a hour, a day, or a year, it must be adjudicated “correct” if it is to hold any legitimacy. I don’t see how your “made” theory is distinct form the so called “found” theory when it comes to better democratic practice.

Please clarify for me how it is a healthier argument for better democratic practice.

[Chris]

I think that we can reconcile a form of Cooper's claim with the existence of genuine disputes in the law of contracts, statutes, &c. if we distinguish issues in constitutional interpretation from issues in constitutitonal law.

Steven Knapp and Walter Benn Michaels's work (Against Theory & its sequels) does a good job defending the idea that interpretation just is the discovery of an author's intention. But they take pains to distinguish this question from what we should do with a constitution, once we've interpreted it. We might have good reliance-interests reasons to prefer later mistakes to the interpreted constitution. But this just means that constitutitonal law might go beyond constitutional interpretation: we might need to pay attention to more than just the Constitution itself in order to decide what to do. That doesn't mean that our activity in deciding what to do, the Constitution notwithstanding, is best described as "interpretation."

I can't seem to put in a link to some of the Knapp & Michaels work the normal way, so I'll just paste it in here:

http://www.heinonline.org/HOL/Page?handle=hein.journals/scal58&id=693&size=2&collection=journals&set_as_cursor=48

[Dave]

Jason--

It's important to keep in mind Cass' distinction between originalism (interpreting the Constitution or statutes solely by reference to contemporary sources) and intentionalism (interpreting the Constitution or statutes solely by reference to the intent of the framers). There are "serious" arguments in favor of both, though only the former has any purchase in the judiciary. The Scalia essay that's been mentioned several times is a good place to start reading about this: http://sobek.colorado.edu/~bairdv/Scalia.htm

Your instinct that conservatives tend to gravitate toward originalism as a method of interpretation seems right to me, despite some exceptions (Amar being the most salient). This is unsurprising. Conservatives tend to be skeptical of the value of progress (hence Scalia's sarcastic one-liner "society only progresses--it never rots"). Thus they'd be more likely to embrace a view of the Constitution that fixes the public value structure at some time in the past and provides a bulwark against the corrupting influence of socially progressive forces. (A tendentious description of conservatism, I know, but you get the idea.)

I'm also skeptical of anon's claim that the French poststructuralists have a place in American constitutional interpretation. Their reception in this country post-dates both Dworkin's major writing and the legal realist movement by some years.

As for the contemporary relevance of the postmodernists, they show up now and again in the form of critical legal studies (Pierre Schlag and Richard Delgado, both at Colorado, are major figures), but the practical relevance of this field has been limited. Postmodernism/-structuralism tends to be an effective means of critique, but is harder to translate into the positive rules that are the stuff of law.

[Chris]

Here's another article by Michaels making some similar points:

http://www.heinonline.org/HOL/Page?collection=journals&handle=hein.journals/lal1&id=109&size=2&rot=0&type=image

[Jason Steed]

Rodney,
On some level I agree with you that the law is "made" in our country by an elite group and that hierarchical structures exist. But it is also ridiculous to suppose that the Supreme Court or any part of the judiciary operates in a vacuum and is unaffected by the "community" and its opinions and validations. Even on the simplest level, the judge listens to competing arguments before making her decision -- and this is an opportunity for the "community" to have an influence.

But the fact is, none of this really has anything to do with the questions at hand and the things I was saying. Just because law gets "made" in a particular way in our country does not mean that, as you suggest, the notion of "competing made meanings" is no different from the notion of a singular "found" and "correct" meaning. If you can't see the difference here, then I'm not sure how to continue.

Moreover, you seem to misunderstand or to misrepresent the claims I was making regarding "correctness." The notion of "found" meaning entails the notion that there is one singular "correct" meaning. The notion of "made" meaning entails the notion that the "correctness" of a meaning is to be decided -- there are various and multiple possible meanings competing with one another for correctness (rather than a singular correct meaning that need only be "found").

I never suggested that the "made" meaning approach abandons any notion of correctness. Of course we can still conclude that a particular interpretation is "correct," even while acknowledging that it is "made." But in acknowledging that it is "made," we also acknowledge that should the context change, or another more compelling interpretation come along, the previous interpretation may no longer be "correct."

With "found" meaning, the implication is that the meaning is what it is, that it is correct, and that it is not subject to lose or change its correctness. If it proves somehow to no longer be correct, then we did not actually "find" the true meaning.

To operate under the "made meaning" approach is more theoretically democratic because it allows (theoretically) for the participation of the community in determining meaning, as they choose from competing possible interpretations. The "found meaning" approach presupposes that there is a singular "correct" meaning that is correct regardless of the opinions of the community. Under "made meaning," theoretically, the community decides by majority what the correct interpretation will/should be. Under "found meaning," a given interpretation is "correct" even if only a very small minority of the community agrees.

And please, don't refute what I'm saying by pointing to how law actually gets made. Whether or not our actual practice is more or less democratic as it is is another discussion. It's irrelevant to this discussion, which is clearly taking place in a more theoretical realm.

[Rue Des Quatre Vents]

Of course the author's intent matters. But not in the ways Jason Steed's hierophants have long ridiculed. Does a criminal intent matter? Say, the intent to kill? Does it matter what a killer meant by his act of killing? Of course. All these things matter. Did the intentions behind the utterances of Derrida's doctor matter when Derrida was "ill"? If an author in writing a book, a poem or even a constitution wished ill upon those who read it, or acted upon it, or envisioned what they wrote as a means of harming those who read it, then surely the intent would matter from a moral point of view and possibly even a legal one. The intent and meaning of the author of a quack medical handbook can be found, and is not "created" or "made" or "multiple" and can be a public nuisance. (Incidently, Po-mo criticisms suffer an from acne of scare quote eruptions.) On the other hand, originalism is at its worst when it is merely an appeal to authority. Is the constitution good because it is based upon the founding authors' intentions? If the principles upon which the constitution is based are good, then we should appeal to the principles and their underlying philosophy and not to those who wrote them.

[Student]

I have 3 thoughts:
1. "Finding" and "making" of meaning are labels appended to two interpretive methodologies that share a single goal: to constrain the textual interpreter (Judge) to a particular sub-range of otherwise available meanings. The extent to which a chosen meaning is correct is a description of the extent to which it accords with the meaning which the interpretive methodology would otherwise choose.

2. Which interpretive methodology is chosen depends upon a metatheory containing a normative component telling us what an interpretive theory ought to do. The debate over the circumstances under which, e.g., a past, present, judicial, legislative, attorney, or voter community should have a preferred interpretive voice is a debate over political theory, not interpretive theory.

The practice of how law is actually made (I'm assuming you're referring to the legislative branch) is extremely on-point: the choice of judicial methodology is one of political theory: Where do we place decision-making power over those value-choices which order our society?

3. Whether originalism requires a single correct meaning is much the same question as whether non-originalist political theory sketched above can exclude any meaning: both ask the question of whether pursuit of the methodology is quixotic. Whether it is quixotic depends on what the goal is to be achieved. If the goal is to arrive at a meaning (or range of meanings) that the particular interpretive methodology legitimizes, then it is possible that both are futile. If, however, the goal is to accord with the goals of the meta-political theory that enables us to choose the interpretive theory, then it is not quixotic: We can best achieve the ends of X political theory by following the interpretive methodology of Y, even if methodology Y is (in itself) quixotic. A claim that legal interpretation IS just search for original meaning is more a claim about the nature of law, and what role it should play, and how it should operate, than it is a claim about the nature of textual interpretation. (for example, a claim that law is a method of pre-committing ourselves, to placing certain actions "off the table" and without this interpretive methodology we will be unable to fulfill the function of law. Or, for example, a claim that in a heterogeneous democracy with changing values, value choices are best made by those who are responsive to a body of people who vote, rather than to a body of people who litigate.)

Finally, an analogy: Contract disputes. Two parties to a contract dispute whether a term requires the seller or the buyer of a widget to assume risk of loss during shipment. A set of legal principles ("parole evidence") constrain the Judge: they must begin within the four corners of the document, and if it does not answer the question, they may then look to outside evidence (negotiations between the parties, other contracts between the parties, industry practice, etc.) so long as it does not conflict with what is inside of the contract. All of these evidence-limiting principles are created with the view of limiting power - the power of the judge to choose among available meanings, the power of other interested parties to influence the result, the power of parties to later influence the consequence and change the deal they made. The choice to limit the meanings (by limiting this evidence) made to further a choice to prefer those meanings shared by the past parties at the time they contracted, and this choice is made in furtherance of economic goals which we have committed to: e.g. to lower the parties' expected enforcement costs and thus provide incentive for them to make mutually beneficial agreements, etc. (this choice to limit power is also demonstrated by the very fact of an "inside" and "outside" of the contract.)

[Student]

I just re-read the above posts, I understand that "how law is actually made" is referring to the judicial, not legislative branch; but my main point still stands - what an intrepretive method should do depends upon political theory, and thus the actual practice of governance is not irrelevant.

[Roach]

A precondition of being able to judge the legal reasoning of others is whether there is, in fact, a "correct" legal decision. Otherwise, we're just having a debate about taste. Whether there is a correct decision in a particular case depends upon how a particular ruling squares up with some outside standard of correct legal reasoning generally. (That is, unless wants to throw out all pretense of "legal" reasoning, and simply say whatever advances liberalism or some other policy goal is correct, as some of the more extreme realists do).

Insofar as we acknowledge that correct legal reasoning involves the interpretation of language and the imposition on it of a single meaning in a world of multiple potential meanings--including subjective preferences by legislative authors and judges--then there is little way out of pure subjectivism without some resort to linguistic analysis untied to changing mores, policy goals, or competing subjective intentions by legislators and judges. And original meaning--i.e., when a term of art like "free speech" is used, what did it mean when written?--is the most likely way to lend predictability to the law, both by those affected and its authors. Further, it's likely the only way to cabin otherwise unfettered judicial discretion.

In this sense, contract law is a good analogy, because the law imposes upon contracts an objective meaning, i.e., a single meaning based on a variety of interpretive rules, without regard to the ever shifting understandings and intentions of the parties.

Why do judges write opinions at all if what they do is simply policymaking? And what does it say about judicial claims of authority that they have long been staked on written opinions that have narrative integrity, both in a single case, and with respect to the law as a whole? Without power of their own, the judiciary depends upon its ability to justify its own assertions against those with phsycial power, namely the executive and legislative branches. This has been accomplished historically through written opinions that show a transparent and reasonable decisionmaking process. Opinion writing shows respect for the litigants and the process that is always somewhat suspect due to the absence of popular control over the judiciary. Writing opinions shows that what took place ultimately stemmed from the intersection of human reason, written laws with discernable meaning, and the facts of a particular case. That opinions are written thoughtfully with respect to the objective meaning of langauge--or at least some range of objective meaning--is important to judicial integrity. We cannot, as Wittgenstein said, "have private languages." The obvious results-oriented decisions of the 1960s did a great deal to discredit the courts, when ordinary people could discern that what had taken place was sophistry.

The problem with Sunstein's view above is that the legal reasoning of the decisions he does not want overturned out of concerns for radical change were themselves radical and untied to any notion of "legal" reasoning, i.e., the obvious and infamous sophistry behind the "prenumbras and emanations" passage in Griswald. Further, in many cases overturning them would simply return these issues to democratic controls; it would not mandate any particular policies.

But now that this violence to the constitutional order has come to pass, he wants to consolidate the gains of former radical by appealing to a conservatism that his liberal peers were deaf to when Griswald, Roe, and the like came up.

[Jason Steed]

Dave,
Thank you. I think your comments have been the most useful and helpful to me. Do you think it is the tendency (or at least the perceived tendency) of postmodernism to function primarily as critique and to fail to offer "positive rules" that has prevented its "purchase" in legal interpretive practice?

Rue,
I haven't "ridiculed" intent -- and neither does Barthes or Derrida or any other thoughtful postmodernist that I know of. Intent is simply de-privileged under postmodernism.

Let me put it this way: under "intentionalist" ways of reading/interpreting, there is the notion that the text must be interpreted and we can use the author's intent as a means or a guide to our interpretation of the text. What the author intended, then, is a grounds for our interpretation; there is the presumption that intent is knowable, or at least more readily knowable than the text, in order for it to provide a means for interpreting the text. Intent, in other words, is privileged over the text itself (as more readily knowable).

Postmodernists simply de-privilege intent, positing that it is no more knowable than the text itself. The act of interpreting intent is, like interpreting the text, an act of interpretation; we're confronted with the same problems of interpretation when we confront intent as when we confront the text itself -- thus, there is no justification for granting intent a privileged status as grounds or means for interpreting the text.

This is not to say that intent doesn't matter -- we still would like to know what intent was, in many cases (as you point out). But it doesn't necessarily provide a window into the text, because interpreting intent is as much a textual interpretation as interpreting the text.

I would add, too, that this is the problem with originalism. (Thanks again to Dave, for the distinction between intentionalism and originalism.) With originalism, it seems it is not intent that provides the grounds or means for interpreting the text, but rather it is the original historical context.

But again, we have the same problem. "Old historicism" (as opposed to the "New Historicism," in the parlance of literary studies) -- which I take to be roughly the equivalent to legal originalism -- posits history as more readily knowable than the text itself; if we know the historical context, then this provides a key (a grounds or means) for interpreting the text. But once again, postmodernists point out that interpreting historical context is still a matter of textual interpretation -- there is no justification for privileging it as more readily knowable than the text itself.

In short, postmodernists don't "ridicule" intent or historical context; they simply point out that neither intent nor historical context should be privileged as grounds or means for textual interpretation, because they are themselves subjects of textual interpretation.

Student,
Much of what you're saying is interesting, and I agree with some of it -- but I would point out that I don't think you can so easily separate political theory from interpretive theory. You seem to want to subordinate interpretive theory to political theory, saying that the latter is a function of the former; but we can just as easily say the reverse is true: political theory is a function of interpretive theory. In fact, I would go so far as to collapse the two: interpretive theory is political theory, political theory is interpretive theory.

[Roach]

When I read something like you wrote above, Jason, I have to ask: what are you trying to accomplish? What's the point of having a discussion with other people if there is an unbridgable gap whereby we cannot find common ground and understand each other's intended points through the common referent of a shared language?

[Jason Steed]

Roach,
1. You want to say there is a "correct" legal decision that squares with "some outside standard." But that "outside standard" is not a constant, "objective," universal truth -- rather, it is a product of community/communal norms. In many ways, then, we are "just having a debate about taste."

2. You say, "there is little way out of pure subjectivism without some resort to linguistic analysis untied to changing mores, policy goals, or competing subjective intentions by legislators and judges." And you claim originalism to be the best "way out" of pure subjectivism. The problem with all of this is the notion (the premise) that you can find a "way out" of your present, localized, subjective position from which interpretations are made. You seem to hold to the illusion that it is possible to see something "objectively" -- that is, not subject to the political, social, and cultural norms of the present historical moment. But the only "objective" standard is the one that has been determined by the community from within the context of its present historical moment -- so the "objective" standard is, itself, subjective. It is only objective relatively speaking.

For you and the originalists, then, originalism seems to offer an "objective" standard for judging legal decisions, but that is only because your community (of originalists) has adopted this as the norm or standard -- because your community has certain political, cultural, and social values that originalism supports, and that support originalism and its adoption as a "standard."

If there really was something "objective" about originalism -- something universal and "outside" subjectivism -- then everyone would adopt it as a standard, or at least recognize its objectivity.

3. There is no such thing as "objective" meaning for language, unless by "objective" you simply mean "communal norms" or "accepted" meanings. Words do not mean anything inherently or "objectively." Meaning is ascribed to them by the community, and meanings change over time -- even from day to day, in more extreme cases. When Wittgenstein says you cannot have "private language," this means only that you cannot have individual language. The function of language is to communicate, thus community is necessary for language to be present -- thus you cannot have "private" language. But the language itself, as a product and tool of the community, works in whatever way the community chooses to make it work. This means that words mean whatever the community decides that they mean.

The only "objective" meaning, then, is what a given community decides is "objective" -- the irony being, of course, that generally our community chooses to define "objectivity" as being "outside" the realm of subjective opinion, so by ascribing "objectivity" to something, we are denying our role in its ascription as such. In other words, we posit "objectivity" as being beyond subjective opinion so as to create a rhetorical space for granting special authority to those "truths" or "meanings" that in actuality we have only chosen, through subjective opinion, to call "objective."

[Roach]

You say, "unless by 'objective' you simply mean 'communal norms' or 'accepted' meanings."

Two things. First, of course to some extent on this issue. What else is language but an invention of sorts. That said, it does not mean that there are not greater and lesser degress of objectivity. It's one thing to say, linguistic meaning accords with contemporary usage and norms, so when we look at language we should figure out what the norms are (or were at the time) to figure out what the words were meant to mean. I could, theoretically under your view, read everything you said above to mean, "I agree with Roach." How could you say I'm wrong? That's the problem with the quick-sand like view you're espousing; it also discredits anything you have to say.

Second, as for policy preferences, law itself has built into itself a kind of preference: for procedure, for regularity, for predictability, for narrative integrity, etc. Likewise, the very process of writing a constitution down exemplifies certain policy goals: regularity, representative government, precommitment. So to also embrace a jurisprudential philosophy that exemplifies these same goals is hardly a mark of shame, even if it does amount, in part, to preferring certain kinds of outcomes over others. You do not propose a coherent alternative and, moreover, your very epistemiological foundations make you hardly worth listening to. You could very well be spouting nonsense simply for your own amusement or advantage. (Leo Strauss has a good discussion of this problem in "What is Political Philosophy?). There is a world of difference from saying, "Smith should win because he's white and Jones should lose because he's black." And saying, "This statute's use of the term 'privileges and immunities' means XYZ but not ABC because that's how the term was used when the statute was written." If you can't see that distinction, you're being somewhat obtuse. Because it's the difference between having a naked preference and a philosophy. Philosophies restrain their believers because they counsel at a certain level of abstraction how to answer questions. They sometimes impose demands that conflict with one's immediate preferences. Adhering to those demands is what it means to have integrity and be principled. Do those words make sense to you Jason?

Jason, there is no reason to believe you're interested in truth, and thus there's little reason anyone should listen to anything you have to say. And your closed, nihilistic system doesn't permit you to make a coherent response to that charge.

[Jason Steed]

Re: Roach's second post
I don't believe I suggested that there is an "unbridgeable gap" or that we "cannot find common ground."

The typical conservative response to postmodernism is to dismiss it all under the claim that it is making understanding impossible, or that it denies the possibility of communication.

The point is simply that we do communicate through a shared language, but that that communication is very much a communal phenomenon. On some level, postmodernism does demand the recognition of the radical Otherness of the Other -- that is, the fundamental inability to completely understand the Other. (And who, in their personal experience of the world, is going to deny this?) But the flipside is postmodernism's crucial recognition of the role of community and the communal nature of language -- and the inescapable presence of change.

In other words, yes, we can understand each other -- but we should abandon the illusion of clinging to "objective" meaning (i.e., meaning that somehow exists or is obtained from "outside" the community). Clinging to objectivity is attractive to conservatives because it provides stability and consistency, etc. But doing so is a hindrance to growth, progress, evolution, change.

If it is an "objective" truth that blacks are inferior to whites, then changing that "truth" is hindered -- even when the community at large no longer believes it is "truth."

If we dispense with the illusion of objectivity, and embrace the shifting, communal nature of meaning, then change is more possible, democracy is enhanced, and community is emphasized.

And there's no reason to fear a loss of continuity and consistency -- meaning relies on history; indeed, the history of the meanings of words inheres in the communal memory and contributes to the present construction of meaning.

Anyway, the point is I've never suggested even for a moment that we can't understand each other. Only that certain ways of understanding (interpreting) are less justifiable or less desirable than others.