Thursday, October 27, 2005

Does Textualism Exist?

A while back I read Stanley Fish's article bluntly titled "There is No Textualist Position." For those of you who aren't familiar with Textualism, stated simply, it's a method of statutory (and constitutional) interpretation that looks to the "plain meaning" of the words.

Fish's thesis is that Textualism is a farce because words cannot have meaning by themselves since words cannot exist apart from intent. They have meaning because of the intent behind the speaker's words, not because they are impregnated with some objective significance. Dictionary definitions and modern day usages are nothing more than someone's intention placed into words; to ascertain the meaning, the person is just searching for the intent of the user.

Fish argues that a textualist is really an intentionalist, but doesn't know it. Since there is no "plain meaning" he's searching for intention. And he is therefore no different from any other intentionalist.

Justice Scalia obviously disagrees (given that he's a textualist and all). Scalia reviews a book on law and philosophy by Steven D. Smith. Smith contends, like Fish, that Textualism is a mirage. And like Fish, he uses an example that purports to show that plain meaning is impossible without context. Fish's example (it's shorter) is if he was driving with his father and came to a red light and his father told him to "drive through the light" he would be unclear whether he should run the red or drive straight when the light changes instead of turning. Since the words cannot properly inform us of intent, they have no plain meaning.

Scalia properly distinguishes between communication, which is "the question whether words convey a concept from one intelligent mind to another" and meaning, which is "whether words produce a concept in the person who reads or hears them." Communication is unclear because it is about conveying subjective intentions; meaning is more objective and focuses more on the listener rather than the speaker. Fish would claim that meaning is also about intent since the words the listener hears are interpreted based on the common usage and therefore based on someone's (probably many people's) intent when using them.

Assuming I understand Fish and Smith, I believe they are essentially correct, but making an irrelevant point. Textualism is a method of statutory interpretation. Even if words are nothing more than manifestations of some speaker's intent, they have taken on objective meaning through common usage. So when legislators use the words in a specific context (context is important to the Textualist), those words have an objective meaning, even if the Congressmen intended something else. And the plain meaning of the words as commonly used is all the textualist is after. So Fish's point is moot because the intention imputed into words through common usage took on objective meaning.

No comments: