In yesterday's NYT, Stanley Fish published an op-ed piece defending a version of original intent as the proper theory of Constitutional interpretation. This morning Solum at Legal Theory refers with approval to some brief comments at AnalPhilosopher (which is not really a joke). Burgess-Jackson notes that Fish has ignored the difference between sentence meaning and speaker's meaning. Fine, and true, and not really terribly helpful. It really does not get us anywhere in these discussions to make that distinction.
First of all, the distinction is one that is built around single author expressions. The Constitution does not have an author. There is no author intention there. Groups just don't and can't have the right kind of internal relations to have an intention of this sort. (At least not human beings as we know them.) Thinking in this way involves one in a reification of the Founders, a weird sort of idolatry.
Second, it would not matter if there were a single author to the Constitution. That distinction has no grip here because it is a mistake to think that the task of interpreting a documents like the Constitution is to arrive at some canonical account of it. It mistakes the nature of the document. The Constitution is not a record of internal meanings and beliefs; it is not a record of anything when you get to thinking about it. The document is a different sort of thing, a (set of) norm(s). It creates things, in particular political obligations and responsibilities. Who made it does not matter unless the answer to that query aids in understanding the nature of the obligations flowing from or created by the document. It doesn't.
How is it we are under an obligation of any kind as a result of what Jefferson or Adams may have thought? Or any set of the Ratifiers?
Third, as given to us by B-J, the distinction is far too little. Words have meanings, yes they do. But as given to us by B-J, words in a script one cannot translate have no meaning. Don't have any until someone "translates". But that does not happen because there is nothing to translate. Which is a somewhat flip way of pointing out that social context plays a number of roles in these endeavors and that the endeavors are predicated on views about stability and change in meaning which are not remotely close to being captured by distinguishing between speaker and sentence.
Fourth, speaker's meaning is not private and subjective while sentence meaning is public and objective. That is not how language does or could work. More aptly for the current topic, there just is no sense to the idea that authors or ratifiers (or Authors or Ratifiers) could have intentions at all (in substantive sense) that set, determine, or condition the meaning of the Constitution.
It is not surprising that Fish says things which are, ultimately, silly. His entire career consists of doing that. It is not surprising the Burgess-Jackson says things that are wrong and almost incoherent. It is disturbing that Solum endorses such a shallow and misguided approach, because Solum is a good deal smarter than that.
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