July 19, 2005
Intentional Neglect
By STANLEY FISH

Andes, N.Y.

Now that the speculation about who will replace Justice Sandra Day O'Connor on the Supreme Court is in full frenzy, we can look forward to debates in which words and phrases like "originalist," "strict constructionist," "textualist," "judicial activist" and "intentionalist" will figure prominently, because these labels are thought by many to stand for different styles of interpreting the Constitution. Those who think so are wrong.

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."

The problem is that there is no such object. Suppose you're looking at a rock formation and see in it what seems to be the word "help." You look more closely and decide that, no, what you are seeing is an effect of erosion, random marks that just happen to resemble an English word. The moment you decide that nature caused the effect, you will have lost all interest in interpreting the formation, because you no longer believe that it has been produced intentionally, and therefore you no longer believe that it's a word, a bearer of meaning.

It may look like a word - it may even seem to be more regularly formed as such than the scratchings of someone who is lost - but in the absence of the assumption that what you're looking at is a vehicle of an intention, you will not regard it as language. It is not until you change your mind and become convinced that the formation was, in fact, designed, that the marks will become language and it will be appropriate to interpret them.

Even then you are not home free; just because you're now sure that the marks spell the word "help," you still don't know what it means. It could be a message from a person in distress. It could be a direction like those on a computer screen ("Need help? Look here."). It could be a petition to God. It could be a reference to a Beatles song. Scrutinizing the word won't tell you which of these things it means.

This is why 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.

And if there is no object - no plain and lucid text to which interpreters could be faithful - neither is there an object to which interpreters could be unfaithful. Consequently, "judicial activism," usually defined as substituting one's preferred meaning in place of the meaning the text clearly encodes, becomes the name of a crime no one could possibly commit. After all, you can't override a meaning that isn't there.

Indeed, because texts do not declare their own meanings, activism, at least of a certain kind, is inevitable. You must actively try to figure out what the author or authors had in mind when setting these marks down on paper. And while the text as written can be a piece of evidence, it cannot - just as that rock formation cannot - be self-sufficient and conclusive evidence.

It follows that any conclusion you reach about the intention behind a text can always be challenged by someone else who marshals different evidence for an alternative intention. Thus interpretations of the Constitution, no matter how well established or long settled, are inherently susceptible to correction and can always (but not inevitably) be upset by new arguments persuasively made in the right venues by skilled advocates.

This does not mean, however, that interpreting the Constitution is a free-form activity in which anything goes. The activism that cannot be eliminated from interpretation is not an activism without constraint. It is constrained by the knowledge of what its object is - the specifying of authorial intention. An activism that abandons that constraint and just works the text over until it yields a meaning chosen in advance is not a form of interpretation at all, but a form of rewriting.

Rewriting is what is being done by those who talk about the "living Constitution" and ask, "Why should we be constrained by the dead hand of the past?" This makes no more sense than asking, "Why should we be constrained by wills and contracts?"

The answer is that without that constraint handed down by the past, law and predictability disappear and are replaced by irresponsibility and the exercise of power. If you can just make it up when interpreting the Constitution, you can also make it up when deciding whether or not to honor your contractual obligations, and so can everyone around you. In fact, if your question is "What do I want it to mean" rather than "What did they mean by it?" you can dispense with "it" and "them" entirely and just go right to the fashioning of the meaning you prefer.

And that is why the only coherent answer to the question "What does the Constitution mean?" is that the Constitution means what its authors intended it to mean. The alternative answers just don't work: the Constitution can't mean what the text alone says because there is no text alone; and it can't mean what present-day society needs and wants it to mean because any meaning arrived at under that imperative will not be the Constitution's.

Only if the specification of the authors' intention is its goal does interpretation have a real object of inquiry; and only the goal of specifying authorial intention allows us to distinguish between what we might like the Constitution to mean and what we can show - by reasons and evidence publicly offered - that it does mean.

But is this account of interpretation at all helpful? If we keep it in mind will it aid us in assessing the answers President Bush's nominee gives to the questions of the Senate Judiciary Committee? Not really. It does tell us a few things, mostly negative.

If the nominee identifies himself or herself as a textualist or a strict constructionist and pledges to be a faithful interpreter of the Constitution (as opposed to an unfaithful one?), you will know that he or she is blowing smoke and laying claim to virtues no one could practice. If the nominee promises to test the Constitution against the needs of our present situation, you will know that he or she will not be an interpreter but a rewriter, and no one on either the left or right wants that. And if the nominee says, "I am an intentionalist," the declaration will be uninformative, because every interpreter is necessarily an intentionalist - not by choice but by definition.

So, if you want to know how someone is likely to act on the bench, you will have to set all the labels aside and pay attention to the nominee's reasoning in response to the posing of hypothetical situations. 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.)

Does he or she construe intention narrowly and limit it to possibilities the framers could have foreseen, or is intention considered more broadly and extended to the positions the framers would likely have taken if they knew then what we know now? In short, what is the style of the nominee's intentionalism, and is it one you are comfortable with?

And then, if after having made that calculation you decide you are for this person, you can hope that the performance you see today predicts the performances of years to come. But don't bet on it.

Stanley Fish, former head of the English department at Duke University, is a university professor of law at Florida International University.


Copyright 2005 NYTimes