Scalia on textualism

1. Scalia is a conservative icon. He's rightly admired for his defense of popular sovereignty. He championed consent of the governed. He championed the Bill of Rights. He emphasized separation of powers as a necessary safeguard to protect the Bill of Rights. And unlike his liberal colleagues, he resisted the temptation to abuse his power. 

2. That said, I'm inclined to disagree with the hermeneutical underpinnings of his position. The issue is interesting because it overlaps with Biblical hermeneutics. 

Now, I only have a  superficial knowledge of his voluminous output, so it's possible that I have a simplistic grasp of his position. But if I understand what he's saying, I disagree.

Many internet sources routinely attribute to him a commitment to "original intent", but from what I've read, that's a mischaracterization of his actual position. If so, it's slipshod for so many sources to describe his position in those terms. Here's how he characterizes his own hermeneutic:

The theory of originalism treats a constitution like a statute, giving the constitution 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 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 U.S. 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. 

I do the same with statutes, by the way, which is why I don't use legislative history. The words are the law. I think that's what is meant by a government of laws, not of men. We are bound not by the intent of our legislators, but by the laws which they enacted, laws which are set forth in words, of course. 

"Judicial Adherence to the Text of Our Basic Law: A Theory of Constitutional Interpretation". Speech at Catholic University of America (October 18, 1996).
http://www.proconservative.net/PCVol5Is225ScaliaTheoryConstlInterpretation.shtml

"You will see recited in opinions all the way back that the object of interpretation is to determine the intent of the drafter.  I don't believe that.  We're not governed by the drafter's intent. We're governed by laws," he told NBC News in an interview at the court. 

"Judges should not be using such extrinsic factors as, ‘What is the general purpose of the statute?’ Or ‘What did the Senate committee say when the statute was enacted?’" he said. 

http://dailynightly.nbcnews.com/_news/2012/08/22/13416169-scalia-judges-should-interpret-words-not-intent?lite

Here he explicitly pits his own view in antithetical contrast to original intent. 

3. In fairness to Scalia, I believe his position is partly in reaction to lawmakers who are overly reliant on judges. That makes lawmakers sloppy, because they count on judges to "fix" poorly written laws. And I think he takes the position that it's incumbent on legislators to clearly express their aim through clearly written laws. It is not incumbent on judges to infer what lawmakers had in mind, when they fail to communicate their intentions. To that degree I agree with Scalia.

4. That said, he posits a false dichotomy. This goes back to the so-called "intentional fallacy". William Wimsatt and Monroe Beardsley came up with that tendentious designation back in 1946. It's a masterstroke of propaganda. After all, a quick and easy way to dispose of a theory you dislike is classify that theory as a "fallacy". That's an effective, prejudicial way, to discredit the theory. If it's a "fallacy," then it deserves no further consideration. But, of course, whether that frame of reference is fallacious begs the question.

5. Scalia caricatures the search for original intent as divining the "secret meaning in the mind" of the Framers or lawmakers. But that's deeply misleading.

To begin with, humans are social creatures and goal-oriented agents. Social life would be impossible if we were unable to reliably infer human intentions from human actions. If I see somebody enter a barbershop and emerge half an hour later, I conclude that he went there to get a haircut, not to read magazines and discuss sports or politics with the barber. If I see someone with an umbrella, I conclude that there's rain in the forecast, that he expects to spend some time out of doors, and that he brought an umbrella to keep himself dry in case it rains. In theory, he could use it as a cane or a weapon against muggers, but that's not the most plausible interpretation of his actions, and in any case, those would be secondary applications.

6. Apropos (5), Scalia erects a false dichotomy between meaning and intent. It's true that strictly speaking, intent is a private mental state. But you don't need to be a mindreader to infer intent. For instance, you can ask what problem the Founding Fathers (or lawmakers) were trying to solve. That's an obvious way to get a bead on their intentions. It's perfectly reasonable to consider the purpose of a statute, or consider legislative history. That's not mindreading. That's not subjective. That's construing a legal text in light of objectively identifiable, publicly available clues. Even though intent is directly inaccessible, intent is indirectly accessible via "extrinsic factors". And that's something we rely on everyday in our social interactions. 

7. You can't separate meaning from intent, for a communicator selects the words he does to assert or convey certain ideas or emotions, or elicit a particular response in the listener. 

Likewise, meaning is context-dependent, and there's more to context than words and sentences. There's the situation that occasioned the utterance. What were the words mean to achieve? Dictionaries don't give you the context. 

Take a word like "freeze". Makes a big difference whether that's used as a noun or a command. If I say "Freeze!" because my walking companion is about to step on a rattlesnake, the sense of my statement can't be determined by a dictionary. In that case, the correct interpretation depends on exigent circumstances. 

Except in fiction, an interpreter can't compartmentalized words from the world in which they arise, and to which they refer. And even in fiction, that's not always possible. To understand the Divine Comedy, you need to understand Dante's thought world, which requires you to become informed about the actual world in which he lived. His time, place, enemies, social circle, intellectual influences.