Tuesday, July 26, 2005
I Owe Stanley Fish an Apology
Post in haste, repent at leisure. When, rushing out the house, I tossed up a response to Stanley Fish’s op-ed last week, I foolishly didn’t expect it to generate much discussion or that it would lead us into the deep waters John’s recent posts have been exploring. Nor did I give either Fish’s op-ed or my post as much thought as I should have and hence miscommunicated some of Fish’s central claims. Yet another example of the perils of the blogosphere.
In my defense, I think the form of the op-ed and some aspects of Fish’s own rhetoric made it possible to mistake some of Fish’s points. But I should have been more careful. (For an example of a more thoughtful response, see Scott McLemee’s typically astute comments. Lawrence Solum meanwhile praises the AnalPhilosopher and others, for a strongly critical read of Fish similar in spirit to the comments on the Valve.) I’ve now had the opportunity to read the article-length essay, forthcoming in the San Diego law Review, from which the op-ed drew. Fish was generous enough to send it. And the piece is a marvel of lucidity. I hope to blog further about it, and about the essay by Knapp and Michaels that’s included in the same issue, once I can be sure there are no copyright issues. But for now, let me just correct some of my patent mistakes.
The most obvious of these was my suggestion that Fish took effectively the same position as Scalia’s originalism. It is the case (as Patrick notes in comments) that Fish shares with Scalia a harsh judgment of those who say that the Constitution’s meaning changes with time and by extension a disinclination to regard precedent as authoritative. But, in fact, Fish’s essay is a forceful attack on Scalia’s textualism: i.e., Scalia’s claim that interpreters of the law should look not for a legislature’s or the founder’s intent, but for the plain meaning of the text (evidence, if necessary, toward which can be found in the historical usage of key terms). Like Knapp and Michaels, Fish argues that there is no such thing as “sentence meaning” and, by extension, that no such thing as textualism is possible. Laws don’t have plain meanings. They only have intended meanings.
As I mentioned in the comment thread that followed my post, I took Fish to be saying in effect something different because of his remark that, in considering Supreme Court nominees, we should ask these questions:
What bodies of evidence does he or she cite on the way to deciding that the Constitution or a statute means this or that? What weight does he or she give to precedent? (Invoking precedent, I should add, is not interpreting, because in doing so one substitutes the meanings delivered by a judicial history for the meanings intended by an author.)
I misunderstood Fish’s points here—mainly I believe because the brevity of the op-ed meant that they were underexplained and could therefore be mistaken for recommendations that are not really in keeping with Fish’s larger argument. In the longer, law review article, Fish makes a point consistent with--in fact demanded--by his claim that all interpretation is perforce the search for an author’s meaning—that intentionalism is simply another word for interpretation and not in itself a method, in fact that it has few methodological consequences. If that is the case--and given Fish’s presuppositions, I think it follows quite inevitably--then in fact there really shouldn’t be anything dispositive about what particular bodies of evidence a nominee consults or what methods, so long as they are oriented to discovering authorial meaning, she employs. The only significant question would be: does the nominee search for the meaning of the text? Put differently, do his methods point to a good faith effort to interpret truly. (The last phrase, it should be noted, amounts by Fish’s lights to a redundancy. In his view, there is either interpretation—which inevitably intends to be a good faith effort to account truthfully for a text’s intended meaning—or there is rewriting.) Theoretically, almost any methodology (including Patrick’s “structuralism") or any body of evidence could serve the task.
The comment that most set me off, though, was Fish’s remark that invoking precedent means substituting judicial history for authorial intent. Now that I’ve read his longer piece, I see that this license for judicial activism likewise isn’t really required by his argument—and in fact is just a misleadingly phrased overstatement. If you are looking for an author’s intent, there’s no reason you shouldn’t regard earlier interpreters’ views as good evidence (since they, too, were presumably engaged in the task) and as the source of views that can be usefully consulted, argued with, etc. Indeed, as Fish’s essay notes in a different context, so long as you’re interested in discovering intent, you will naturally want to consider and dispute rival accounts. Fish is concerned that justices deferential to precedent will enable earlier misinterpretations to obscure the intended meaning of a law. But, on his own terms, so long as a justice believed a precedent was a worthy interpretation, there would be no reason to disregard it.
That’s not all there is about the longer essay, by any means. Though it hammers a central point with impressive concentration, Fish’s essay is a long and multipart one with many interesting subtopics. Among other things, it anticipates and rejects some of the challenges raised by John—not in my view convincingly, but certainly in a way worth considering. In the course of distinguishing between judicial interpretation and some of the other constraints on judicial action, it also makes what I think are some very useful clarifications about what judges must consider (among others, perhaps Barry’s comments about equity), arguably not as part of, but in addition to interpretation. I find myself agreeing with some of the essay’s major claims, while also continuing to disagree on points I think Fish would regard as central—e.g., “sentence meaning.”. More to come soon, I hope. In the meantime, my apologies to Fish and to readers for getting him wrong.
In your post, you note that Lawrence Solum praises AnalPhilosopher’s critique of Fish. I couldn’t help noticing, however, that you didn’t join Solum in that praise. Smart move, in my opinion. The AP’s case about the “choice” that we each have to make between “speaker meaning” and “sentence meaning” seems thin and unhelpful at best.
By the end of his analysis, AP claims that we can each chose to accept either what “the meaning of the text [is] now” or what the words of a text meant to their author. This all depends, AP states, on whether the “meanings of the words” have changed over time.
But this is simply that old choice between the general and the particular, with a historical spin –- a choice between (1) what most people tended to mean at time T when they used certain words and (2) what particular authors meant by particular utterances. But why would we lean, in principle, towards meanings that people in “the future” tended to ascribe to words, even (and especially) if we believed that a person in the past was using those words with different meanings in mind? Or if we believed that he or she was using them ironically, figuratively, stupidly, narrowly, etc?
Why should we do this, in principle, any more than we would “choose” meanings that were standard 200 or 1000 years prior to the utterance, just because those earlier meanings were “different”? To be sure, we can and do use the histories of words and word usage as a guide –- but ultimately, they guide us to decide what this particular utterance means.
Case in point. Why should we care that the meaning and connotations of the word “militia” have changed over the past 200 years? Why should we care, that is, unless we believed that the authors/framers of the 2nd Amendment intended for the terms of said amendment to be capacious and open-ended? And then we’re back to intention.
Case 2. When AnalPhilosopher tells a kid, “I’m sure that the cat loves having his tail twisted,” that particular utterance – intended ironically – simply means that the cat definitely does NOT love tail-twistings. What does a knowledge of a standard “sentence meaning” add to this scenario? Only the non-contested fact that AP was using those words in a non-standard or abnormal way. And if you are trying to be clear, especially with a child, that might not be a smart tactic.
But do we really want to say that, even if the child understands AP’s ironic intentions, he still gets to “choose” between the meaning that AP intended that the standard sentence meaning?
To that possibility I can only say: fat chance!
...and if Stanley Fish would like to send me a copy of his paper too, I would be more than happy to apologize. For everything.
Agreed, Peter. AP, I think, overstates the case, but that doesn’t mean, of course, that there’s no “sentence meaning.”
But about this:
When AnalPhilosopher tells a kid, “I’m sure that the cat loves having his tail twisted,” that particular utterance – intended ironically – simply means that the cat definitely does NOT love tail-twistings.
It doesn’t simply mean that, does it? It means in addition: I’m using this sentence in a non-standard way to draw attention to your cruel indifference to the cat’s feelings. Does that irony, as AP suggests, require sentence meaning? The more I think about it, I’m not sure. But you can see why that’s a natural intuition.
Sean: “Post in haste, repent at leisure.”
An example of how framing Constitutional issues as a conflict between ‘law’ judges and ‘equity’ judges contributes to the debate over interpretive strategies was missing from my earlier post. Here’s one:
Today’s New York Times editorial, “The Roots of Prisoner Abuse,” reviews recently released JAG memoranda which were written in response to DOJ memoranda arguing that the Geneva conventions and the US Constitution do not apply the enemy combatants being detained by the US at GTMO. Among these JAG memos:
‘Rear Adm. Michael Lohr, the Navy’s judge advocate general, said that the situation at the American prison at Guantánamo Bay in Cuba might be so legalistically unique that the Geneva Conventions and even the Constitution did not necessarily apply. But he asked, “Will the American people find we have missed the forest for the trees by condoning practices that, while technically legal, are inconsistent with our most fundamental values?"’ (NYT, July 30, 2005, A28)
Appellate courts are frequently faced with ‘legalistically unique’ situations, which call into question ‘our most fundamental values’ such as ‘is torture okay?’ What to do? Recent SCOTUS nominee Judge John Roberts, just last week, joined in a D.C Circuit opinion that held in the very situation at GTMO referred to above and in the Padilla case, that neither the due process safeguards of the US Constitution nor of the Geneva Convention apply. No law, no foul.
But why not hold, instead, that when there is no clear law to apply, we must appeal to ‘our most fundamental values’ and fashion the best rule we can from the resources we have? (“Therefore, despite the ‘lack of a controlling legal authority’ in this case, we hold that the ongoing detention of these prisoners without any reviewable standard of due process is inherently unfair and cannot be tolerated by a democratic people and so we order the government to propose a plan for processing these cases with due consideration to the human rights of the accused.)
Although contemporary jurisprudence uses a different, more nuanced and technical vocabulary than ‘law versus equity,’ (positivism versus anti-positivism, say) I think there is value in the old nomenclature, both explanatory and rhetorical. To compare ‘certainty and predictability’ to a ‘living constitution’ sounds like science versus voodoo. But to argue for ‘law and order’ and ‘certainty and predictability’ over ‘fairness,’ ‘justice,’ and ‘our most fundamental values,’ sounds like Dr. Strangelove.