Scalia and language
There's been some interest of late ("Man bites dog": a Supreme Court Justice reviews a law Professor's work) in the recent review by Antonin Scalia of Steven D. Smith's Law's Quandary. Over at Language Log, my one-stop source for Things of Interest Lately That Are Linguistically Inclined, I read this fascinating post:
Scalia on the meaning of meaning, Oct. 29, 2005.
In that post, Language Log host and contributor Mark Liberman notes the fascinating contrast between Smith's theory and Scalia's response, played out on the battlefield of linguistic theory. What's the meaning of a word?
Both Smith and Scalia are discussing meaning, significance, and the proper way of determining same. What's the least ambiguous way? What's the most reliable, the most ethical, the most appropriate way? Both must get somewhat theoretical as they grasp for a handle on handles: what are we talking about when we say something means something?
Scalia, as he has historically, disdains the mind of the author. He has consistently derided legislative history - that is, the contemporaneous but un-enacted statements of the people whose job it was to craft the words of the statute. That's because, as with international law, it is easy to look out over a crowd and pick out one's friends; that is, to act unethically as a judge by deliberately pretending that some out of a crowd support your view.
Meanwhile, Scalia views the proper method of interpretation of the Constitution to be the one consistent not only with its words but with the original meaning. Not the intent, perhaps, of the Framers, but the objective meaning the words had as generally understood.
Smith takes a far contrary position, that words are meaningless absent context.
I disagree with Scalia for policy reasons and for political reasons and for legal reasons, but most of all I have to disagree with him for linguistic reasons. His parable, of
Mark Liberman does more than just analyze what the two thinkers are saying, he also brings some context.
This debate - where do you look to understand what the meaning is - has aspects of linguistics, in the deep questions of what language is and how it does it. Here's my favorite bit:
Of the many canons of construction, one of them is to disregard minor errors which clearly contradict the entirety of the rest of the corpus, and which would nullify the obvious meaning of the whole. That wasn't supposed to be a second "not"; we judicially omit it. The comma was inadvertent; we disregard it. The word "leaving" was supposed to be "leading," and we take judicial notice of the fact that everyone involved in the whole process believed it did in fact read "leading," and never noticed when it got changed between the final draft and the enacted legislation. Etc.
But Mark's deeper point remains: is there room to synthesize these two putatively opposed views of law and language? I'm not skilled enough on the linguistics side of this to do much heavy lifting there, but I'll see if I can't point up some good stuff in the law to help illuminate this area a little better.
Scalia on the meaning of meaning, Oct. 29, 2005.
In that post, Language Log host and contributor Mark Liberman notes the fascinating contrast between Smith's theory and Scalia's response, played out on the battlefield of linguistic theory. What's the meaning of a word?
Both Smith and Scalia are discussing meaning, significance, and the proper way of determining same. What's the least ambiguous way? What's the most reliable, the most ethical, the most appropriate way? Both must get somewhat theoretical as they grasp for a handle on handles: what are we talking about when we say something means something?
Scalia, as he has historically, disdains the mind of the author. He has consistently derided legislative history - that is, the contemporaneous but un-enacted statements of the people whose job it was to craft the words of the statute. That's because, as with international law, it is easy to look out over a crowd and pick out one's friends; that is, to act unethically as a judge by deliberately pretending that some out of a crowd support your view.
Meanwhile, Scalia views the proper method of interpretation of the Constitution to be the one consistent not only with its words but with the original meaning. Not the intent, perhaps, of the Framers, but the objective meaning the words had as generally understood.
Smith takes a far contrary position, that words are meaningless absent context.
I disagree with Scalia for policy reasons and for political reasons and for legal reasons, but most of all I have to disagree with him for linguistic reasons. His parable, of
is nice poetry, but is weird. Really, really weird.
Two persons who speak only English see sculpted in the desert sand the words “LEAVE HERE OR DIE.” It may well be that the words were the fortuitous effect of wind, but the message they convey is clear, and I think our subjects would not gamble on the fortuity.
[...]
As my desert example demonstrates, symbols (such as words) can convey meaning even if there is no intelligent author at all.
Mark Liberman does more than just analyze what the two thinkers are saying, he also brings some context.
This debate - where do you look to understand what the meaning is - has aspects of linguistics, in the deep questions of what language is and how it does it. Here's my favorite bit:
Liberman's concluding question is a throwaway: "I suppose that legal texts are generally carefully composed and proofread, but errors must occasionally creep in — and do obvious typos or malaprops then have the force of law?" and there's an obvious answer.
It's obvious that the concerns of legislators, lawyers and judges overlap significantly with the subject matter of linguistics and language-related philosophy, and I've always been puzzled about why the real-world interactions between the disciplines and their practitioners seems to be so limited. Reading Scalia's review left me more puzzled than before.
I gather from Scalia's review that Smith's perspective is at least as strongly represented among contemporary legal scholars as Scalia's is. I won't presume to characterize the philosophical state of play on these questions, but let me say that as a practical matter, linguists generally find it necessary to think about both kinds of meaning..."
Of the many canons of construction, one of them is to disregard minor errors which clearly contradict the entirety of the rest of the corpus, and which would nullify the obvious meaning of the whole. That wasn't supposed to be a second "not"; we judicially omit it. The comma was inadvertent; we disregard it. The word "leaving" was supposed to be "leading," and we take judicial notice of the fact that everyone involved in the whole process believed it did in fact read "leading," and never noticed when it got changed between the final draft and the enacted legislation. Etc.
But Mark's deeper point remains: is there room to synthesize these two putatively opposed views of law and language? I'm not skilled enough on the linguistics side of this to do much heavy lifting there, but I'll see if I can't point up some good stuff in the law to help illuminate this area a little better.
Posted by Eh Nonymous on
Sunday October 30, 2005 at 3:17pm
An interesting thing to think about with Scalia's example, though, is what he means by two people who speak English. You can make a pretty powerful argument that you can only really learn English by picking up with lots and lots of context. I mean, nobody's born speaking it.
Anyway, wouldn't that anecdote cut directly against Scalia's mode of constitutional interpretation? Assuming the script is naturally (ie unintelligently) formed, the observers are interpreting it in accordance with thier current beliefs. Surely Scalia would want to find out at least what if anything it meant when it was formed.
Well, that's the whole point. As Liberman points out, you can't take seriously the project of dealing with language unless you come off the ridiculous, extreme positions.
Is Scalia right? Could those words have appeared on a beach? No, he's not right. If a tree grows the word "Love" in it, it's not communication. If I learn that someone caused the tree to say it, that was communication.
Is he right about statutes? Heck yes; we should often be ignoring what Congress meant to say, in favor of what it actually said. My pleasure at the times a liberal result is reached by applying the statute "as it was meant to read" is utterly overwhelmed by the dismay I experience when lawless, conservative, legalistic (yes I know that sounds contradictory, bear with me) and overly formalistic judges (like Scalia, at times) use the words of the statute to defeat its purpose.
So what to do? Well, we wish Congress was better at writing laws. Lord knows that's all they're supposed to do, besides raise and allocate money, but they're really, really bad at it. Nevertheless, there are judges who know what law is, and can cope with the mess Congress leaves them to achieve fair and just results. There lies some hope.
That means that I think Smith is slightly wrong, too.
There's got to be a way to account for the errors of communication, as well as the intention. There's got to be a way to avoid the dogma of context-sensitivity as well as the dogmas exhibited by a Scalia.
Scalia narrows the field of allowable interpretative modes, then choses the one that produces results he can live with. If he can't live with the result dictated by his usual method, he finds a new way to get there. If he's missing a few steps in logical proof, as when the need to regulate marijuana and the need to follow the original understanding of the Commerce Clause clash, he jettisons the more expendable one.
I like your point about English (like all language) being acquired, not naturally inborn.
My main beef with your comment is that I think opposed positions often beg for a reconciliation - perhaps not by contradicting either one, but by adding additional information that shows how they can both be relevant.
Thanks for writing!
The appropriate question is: do a majority of each chamber have to share a mutual consensus as to the precise meaning, intention and effect of the legislation at hand for the chamber to pass that bill? Or, do they simply have to vote in the affirmative?
The last time I checked, the Congress enacted laws that a majority in each chamber voted for, and in order to vote for a measure, a member of Congress need not have the same intentions as his colleagues for voting for the bill; s/he may not have ANY particular intentions in mind. They may not even have READ the bill that they are voting for, so what good is a discussion of their "intent"? Not much, which is Scalia's point. What is binding is the law they enact. What do the words of this statute mean to a reasonable person who speaks the English language? What would a hypothetical reasonable English-speaking Senator have understood the text of the bill, had he read it before voting on it? It is the text that governs, not the intention of the voter, which is precisely why we are a nation of laws, not a nation of men.
The reason that original intent is an incoherent nonsense that is disavowed by mostly every serious Originalist is that there simply ISN'T any such thing as a discernable group intent, and even if there were, it is not the intention which passes the law, but the vote. For this reason, we must reconcile ourselves to textualism and the original understanding.
Things like, how do you resolve a problem when the Court clearly has the power to decide a case, and knows what law (in the case of abortion, Constitutional law at the highest level, overriding lesser law like federal and state law), but the law itself is unclear. What does Scalia do? Why, he enshrines his policy preferences.
The reason that textualism is (not nonsense but) wildly overrated is that anyone, from a liberal to a conservative, can decide what counts when deciding what the text means. The prolem is that Scalia decides what counts in terms of establishing originally understood meaning. He gets to decide whether the country was founded on a Judeo-Christian heritage, or in a continent free of church establishments, or in a society based on racial supremacy. His prejudices determine for him what "sounds right," and he proceeds on that basis.
We must in no way reconcile ourselves to original understanding. We "must" abide by the text, with the (as you correctly state) unknown and unknowable intent of individual legislators. That doesn't mean that you judicially rewrite a law like ERISA or the ADA by blindly changing around meaning.
Scalia falls afoul of numerous errors of textualism, including the erroneous assumption that a word used in one context necessarily means the same as "the same" word used in a different context. Cocktail-party textualism or not, he's just not a professional at this. A professional statutory interpreter, yes. A professional expert at what words "really" mean, no. He gets it wrong, and when his error leads him to believe that a word is wide open, he inserts his own personal beliefs.
Nonsense like "ERISA is a comprehensive, carefully articulated statute designed to ..." utterly and coherently regulate an area of law. Why'd he write that? Ignorance of the legislative history? Naivety? Simple dislike of the intended beneficiaries of ERISA's protections, namely workers and retirees? I can't read his mind. But I do know that sometimes Scalia, like many of us, are full of it.
*Not all comments welcome. Flippant, facetious, fierce, or fatuous, fine. Fraudulent, felonious, fabricated, facially insufficient, and farkin' futile, fuggeddaboutit.