Tuesday, July 19, 2005

Intentionalism vs. Textualism--why Literary Criticism matters for the Supreme Court

Stanley Fish, proving he is still very much a legal & literary critical mind to be reckoned with:

If interpreting the Constitution - as opposed to rewriting it - is what you want to do, you are necessarily an "intentionalist," someone who is trying to figure out what the framers had in mind. Intentionalism is not a style of interpretation, it is another name for interpretation itself.

Think about it: if interpreting a document is to be a rational act, if its exercise is to have a goal and a way of assessing progress toward that goal, then it must have an object to aim at, and the only candidate for that object is the author's intention. What other candidate could there be?

One answer to this question has been given by Justice Antonin Scalia and others under the rubric of "textualism." Textualists insist that what an interpreter seeks to establish is the meaning of the text as it exists apart from anyone's intention. According to Justice Scalia, it is what is "said," not what is "meant," that is "the object of our inquiry."

And then a little later:
Justice Scalia has it backwards: if you're not looking for what is meant, the notion of something being said or written is incoherent. Intention is not something added to language; it is what must already be assumed if what are otherwise mere physical phenomena (rocks or scratch marks) are to be experienced as language. Intention comes first; language, and with it the possibility of meaning, second. And this means that there can be no "textualist" method, because there is no object - no text without writerly intention - to which would-be textualists could be faithful.

It will be easier to see how he gets the above paragraph from the preceding ones if you read the whole piece.

Two small thoughts: 1) See, you don't need to write like Derrida to make a decent point about language, texts, and interpretation. (And see, the Times might even publish it.)

2) Unfortunately for all of us, the level of discussion around the appointment for Sandra Day O'Connor's replacement on the US Supreme Court ("SCOTUS") is likely to be a lot less intellectually serious. If there is any substantial, consequential discussion at all, that is.

Incidentally, Sean McCann has a much more critical response to the Fish column at The Valve.


Kumar said...

Dr. Singh:

Just a reaction from a would-be biologist: I am not convinced by Stanley Fish's argument, since it depends on the crucial premise that there is no ‘meaning’ without an author. It amounts to a variant of the Paleyite 'no design without a designer' argument from the history of biology, a thesis not very popular among (the vast, overwhelming majority of) modern biologists. Indeed, I think his stance has implications for biology: I am not sure how Fish would make sense of what goes on in biology, given his views on ‘meaning’.

Yeah, I know, I am interpreting lit-crit in terms of science, but turnabout is fair play ;) But even if you don't agree with that sentiment, please do humor me for the next few paragraphs.

Fish argues that no one ascribes 'meaning' to natural phenomena that happen, by chance, to resemble the products of human artifice. His imaginary example invokes a purely chance creation of something resembling a word in a language. From this he goes on to argue for his no author-no intention-no meaning-no interpretation thesis.

But this premise is entirely wrong, of course. Evolutionary biologists routinely ascribe ‘meaning’ to products of chance (& necessity), products that have not been designed/authored. That is, biologists routinely use teleological language when describing organisms (X is for Y). Now most biologists think this is purely metaphorical. Nonetheless, modern biology is an organized body of knowledge that (metaphorically) attributes meaning to entities that are author-less.

Why isn’t modern biology a counter-example to Fish’s thesis that there is no meaning without an author? Btw, note that while teleological language/meaning is metaphorical, it’s likely ineliminable from biology (read Michael Ruse, among others, on this; some think that the ineliminability is due to epistemic reasons, while others think it’s due to ontic reasons).

If the argument is that metaphorical attributions of meaning don’t count as ‘real’ meaning, well okay. Even though I think that is a question-begging move, I will bracket my reservation, and ask: Why couldn’t one similarly utilize an ‘authorless’ text(s) to which one attributes ‘metaphorical’ meaning in jurisprudence? It seems to me that a text plus commentaries on that text, as a whole, could be legitimately thought ‘authorless’ in that sense, e.g., the Constitution plus commentaries on it (judicial precedents etc), plus English common law.

Btw, dismissal of biological attributions of 'meaning', of course, won't work for those biologists and philosophers (e.g., John Post, who isn't a creationist) who think teleological attributions are genuinely objective.


5:31 AM  
[ tyler curtain ] said...

Kumar: the formulation 'X is for Y' is a functional relationship, not an intentionalist ("meaning") relationship. That phenomenon function in certain ways in particular environments is indubitably true. That they are "meaningful" is in most cases of descriptions of the outcome of systems (and certainly all "natural" systems) a meaningless assertion.

Or to put it in terms that might be more familiar to you, it is like asking what 1/0 "means." It doesn't "mean" anything -- it's simply not a well-formed formula. Likewise, the use of the word "mean" in those contexts does a certain work, but not a meaningful one.)

10:16 AM  
Amardeep said...


I think Tyler's distinction between functions and meanings is a good one, and he describes it more effectively than I could.

I think you yourself are in some sense acknowledging it when you refer to the attributed meanings/functions as "metaphorical." Metaphors have to be invented by somebody.

The odd thing in the Supreme Court debates is that people are talking about two overlapping issues, but not spending enough time on why and how they overlap. The two issues are 1) the judge's juridical philosophy (i.e., intentionalist vs. textualist), and 2) the judge's views on actual civil rights and liberties issues such as abortion, gay marriage, hate crimes, torture, and affirmative action. It's interesting to me that the dominant conservative judicial philosophy seems to be intentionalism, which need not be linked to the accepted conservative positions on the issues I mention in (2).

I wonder if what President Bush is referring to when he says "strict constructionist" is a principle at all in the vein of (1), or a mere constellation of particular positions (2) that are (pragmatically) aligned under that convenient umbrella.

(But then, I tend to see pragmatic solutions to many of these problems: what we think the Founding Fathers actually meant when they wrote and ratified the Constitution is at least partly a function of what we want them to mean for our own purposes today.)

People might want to check out the discussion on Tyler's blog Bentkid about whether and why "strict constructionalists" (or intentionalists) could come out in favor of civil rights for gay people or ethnic minorities.

1:27 PM  
Kumar said...

I certainly agree that 'X is for Y' is not a literally meaningful assertion ('intentionalist', to borrow from Tyler Curtain)and that's why I said such assertions are metaphorical. I was attempting to use biologists practice of generating 'meaning' without an author as an analogy for how one might do something similiar with texts. But I wasn't clear enought, so let me re-fashion my argument...

The Purva Mimamsa school of interpretation of the Vedas certainly doesn't try to discern the 'meaning' of the 'author' of the Vedas, since they held the Vedas to be authorless. Btw, formally, the rules of interpretation used by this school are very similar to the exegetical strategies of the Jewish tradition. Why can't American jurisprudence adopt a similar sort of model?

I take it Fish would argue that this isn't interpretation, but re-writing. But the question really is, if one can arrive at a determinate 're-writing', why shouldn't we prefer that to a 'determinate' interpretation? As Brian Leiter (philosopher & lawyer at UT-Austin, I think) points out in his blog, the idea that American jurisprudence ought to be bound by 'original intent' is really an unargued-for assumption.

And, Dr. Singh, doesn't your 'pragmatic' notion of meaning also amount to re-writing by Fish's light?

In any case, reading the link at the Valve, I see that John Searle uses a distinction b/wn sentence and utterance to effectively hack away at Fishy theses. I'm sure that's an old joke ;) So the question still stands: Why prefer 'intentionalism' at all, since meaning and authorial intent aren't inextricably tied together?

Orthogonal aside: In the earlier comment, I had mentioned some biologists and philosophers--not afficionados of Intelligent Design--who think normativity is an objective feature of biological organisms. Here's a link to a pre-print from philosopher John Post (at Vanderbilt)on 'Naturalism, Reduction and Normativity: Pressing from Below' at http://www.vanderbilt.edu/~postjf/nrnpb.pdf


4:00 PM  
ModelMinority said...

After reading the wikipedia entry on Scalia's judicial philospohy, I must confess I dont understand Fish's criticism at all.


Origianl intent is no longer in favor: "original intent was seen as lacking good answers to three important questions: whether a diverse group such as the framers even had a single intent; if they did, whether it could be determined from two centuries distance; and whether the framers themselves would have supported original intent."

Scalia's philosophy is a response:

"The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words."

... Applying this form involves studying dictionaries and other writings of the time to find out what particular terms meant. For example, phrases like "due process" and "freedom of the press" had a long established meaning in British law, even before they were put into the Constitution of the United States.

7:08 PM  
[ tyler curtain ] said...


I think the more interesting version of your challenge to find a relationship between the emergence of patterns and order in biology and what it is philosophers of language mean by 'meaning' is to ask the following question. What is the relationship between order/patterns/"intententional" relationships in the "natural" world and the intentional systems we group under the amorphous category "natural languages"? Is the intentional capacity of "language" the same phenomenon as the action/directedness that we associate with, say, evolutionary relations? (I would answer no, though not for the reasons one might expect. Instead, I would assert that the action/directedness--indeed, the capacity of self-referentiality in and of the world--is a necessary precondition for intention in the Michaels-Knapp model put to use by Fish in his NYT's article. Can systems give rise to "intentionality"? The problem with that question is that the directedness-action-self-referential phenomena of systems are not exactly the same, though they are related, to human languages.

Kumar, I think you would find much of interest in Brian Cantwell Smith's extraordinary book, On the Origin of Objects, a book that I would recommend to anyone interested in intentionality, meaning, computationality, and systems theory.

If I have time, I'll respond to modelminority's question about Stanley's critique of textualism/interpretation/intention and say why the real scandal of the Fish article is that it puts the lie to the assertion that pragmaticism in this vein has no consequences.


10:43 AM  
Sid said...

Well, just a quick note about Scalia's philosophy...the question isn't really about simply looking at the words of the Constitution and their popular meaning in 1787. If it were that, then one of Congress' most important powers, the ability to regulate commerce, would not reach airlines or the internet for example. There has to be some level of modernization to the language, unless you accept that the Framers had broad intentions in using the term "commerce" (i.e. any transaction involving the transfer of money, which would include robbery). The problem for Scalia, who really isn't as principled as he holds himself out to be (see his opinion in Raich, the medicinal marijiuana case) is that if you adopt a broad reading of the term commerce, then why not a broad reading of the term "liberty" in the 14th Amendment? The answer is that if you did, you would eliminate a fair number of blue laws, or morality laws at the state level, including anti-sodomy laws (see Lawrence v. Texas). For Scalia, who is considerably more outcome driven than painted, that is an abhorrent position, and so, he adjusts his frame of reference accordingly to create a particular outcome. For a great debate about this, without a lot of legalese, look at the opinions in the case Michael H. v. Gerald D.

12:20 PM  
[ tyler curtain ] said...

Absolutely, Sid. Scalia is a terrific prose stylist, and a snake in the grass as far as his integrity to principles.

1:16 PM  

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