Thursday, July 27, 2006

What does Quentin Skinner (Words are Deeds) Mean?

Lawrence Solum of San Diego and Illinois Law School and of Legal Theory Blog asks:

I'm curious as to your take on the "original meaning originalism" versus "original intentions originalism" debate--and in the
relationship between that debate and Quentin Skinner's work.

Calvin Johnson Responds:
"Original intent" or "motive" is commonly used to refer to non-binding motives. Only the meaning of the authors of the Constitution are binding on us, but not their motives or their intents. Jed Rubenfeld, Revolution By Judiciary (2005) uses intent as the part of the Founder's statements that are not binding on us. Sometime motive refers to the private, off the deal intents that do not get incorporated into the meaning.
I am not very fond of the terminology. An author has an intent in writing. To strip the author's intent from the words leaves the words as random. I understand that a contract draftsman can be bound by things he said as the other party understands them even if that is not what the draftsman meant or intended to say. Still what the author meant or intended to say is a perfectly sound basis of what words mean.
All words are deeds, including the Constitution, and they are written to accomplish something. What they are trying to accomplish is the core meaning. Yes the words give us the opportunity to make analogies. Freedom of the press means we can go beyond the core Zegler case (whatever that means) to other cases. But the thing they wanted to accomplish is the holding, not the dicta, and it is binding.
Quentin Skinner is most wonderful in insisting that we look at all words in strict hsitorical context, blind as they were as to the future. We who can see the next 220 years (the future is past to us) need to have the words cover decisions now, so we forget the founders could not see the future and we impute prescience to them. The Founders in fact were not trying to solve our problems. It was hard enough to solve the hard fought partisan issues of the day. If they could be solved right then that was what counted.
The words can be used as analogies for future cases. But that is our decisions. For the Founders the meaning is the immediately program. The program is the hard rock they cared about. There are ripples but the ripples lost their energy for the Founders after the first wave or two. The Founders were no more trying to solve the problems of 2006 then the editorials and op-ed pieces are really trying to solve the problems of 2226.

Lawrence Solum responds:

Larry Solum wrote:

What does this mean for Johnson's assertion--To strip the author's intent from the words leaves the words as random? That assertion is based on an erroneous assumption--that all meaning is speaker's meaning--or in the case of a constitution, that all constitutional meaning is framer's meaning. That's false. Framer's meaning can be distinguished from clause meaning. And constitution's should be interpreted in accord with their clause meaning, not framer's meaning, But that's another argument.

Johnson responds:
We do need some more distinctions, because your “clause meaning” assumes your conclusion, I think erroneously. Let us use “binding meaning’ as the ultimate winner in the interpretative battle. I do think that Framer’s meaning probably should win in an interpretative battle, vis-à-vis ratifiers’ meaning but mostly because ratifiers’ meaning is incoherent mish mash.

1. Framer’s intent trumps abstract. First let us run a hypo in which there is contrast between speakers’ meaning and “clause meaning” but clause meaning loses out. Suppose I say that that there is a “plethora of good sense in this arbitration.” Now the truth is that I meant there was almost no good sense in the conversation, but I was showing off using a word “plethora” I did not quite have control of. I did not mean swelling or excess of good sense, and indeed too much good sense is not a pathology in my mind. The listener knows the true meaning and exploits my error, telling the judge that I had confessed off stage that no more arbitrators or explorations were needed to help reconcile because there was an excess of good sense already. The clause meaning is that I did in fact say there was a pathological excess of good sense. But speakers meaning, including the error of usage, should prevail because in context, speaker’s intent was different than dictionary meaning. If the listener were fooled, and made sense of plethora infact as “too much” already, then perhaps we have a contest over binding meaning. But it is not clear the listener’s meaning should prevail even though excess is the correct definition from the original Greek. Perhaps the listener had a duty to ask, given the oddness of the syntax ”too much common sense” In any event, you can not presume without error, as you have, that dictionary meaning (clause meaning) should prevail. Intent counts. Win? Maybe, maybe not. But speaker intent counts.

I have two example in mind in which I think the Framers intent should prevail even though it plausibly private language. . The Framer’s avoided the word “slavery,” using eg “other person” in the three-fifths clause. If we come to a dispute on voting power or allocation of taxes, you have to understand that other person means slave and not literally “other person.” Prisoners for instance are not “free,” but they are also not counted at three fifths. That is not a dictionary or abstract meaning, but Framers’ intent should trump.

Framers used “duty” as a synonym for “stamp tax” They wanted the Federal government to have the power over stamp tax but did not want to say the word given the Stamp Tax Crisis of 1768. “Duty” had lots of other dictionary definitions at the time, but they meant stamp tax.

2. Ratifier intent is incoherent. In the Constitutional debates it is incoherent to say that ratifier meaning counts, unless you specify which the 3 million meanings you are referring to. Read the debates in the raw, from eg Documentary History of the Ratification. The debates are filled with turgid passages that you read and think, “what is he trying to say”? There is lot of doggerel, that we don’t find funny. The recurring pattern is “enough about you, let us talk about me,” and the Anti-Federalist goes off into his concerns. The Anti-Federalists are paranoid and they find evil intent in every passage, even those with a plethora of good sense. To our ears the speaker’s interpretation of the Constitution does not seem very close to the text, But who are we to judge. This is from Righteous Anger at the Wicked States:

The ratification debates are also inevitably cacophonous because of their structure. After Philadelphia, there was never again a single room in which every one had even to pretend to reach a single meaning for the Constitution. In Philadelphia, elected delegates argued from May to September to reach a single draft. They bickered over language, they delegated hard issues to one committee after another and at the end they signed a single draft. The single room, long discussions and single set of words may not mean that there was only a single understanding, common to all, but it does hedge in the understandings so they are collected around a single document with a shared meaning. By contrast, the ratification debate extended along the entire seaboard with a population of 3 million. There was, as Joseph Story said, “[n]o certainty either that different state conventions gave the same interpretation or that the same reasoning prevailed even within the majority of a single convention.”[1] The ratifiers who published their views had a slightly different understanding of the significance of the words, even when they debated the fixed language clause by clause. Readers in the debates commonly missed the point, or came up with interpretations that we do not find as matching the words, although that was what they understood to be the meaningful point. Once the document left Philadelphia, there was also no longer any mechanism to force a single understanding. It is not coherent to say that the Constitutional Federal Convention in Philadelphia misunderstood or made a mistake about the Constitution. What they understood is what the Constitution was. It is coherent to say that this or that ratifier, or even this or that state convention, made a mistake and misunderstood the Constitution

I do think the binding meaning is the Philadelphia meaning. I think Jefferson-Madison liked the ratifiers meaning because it allowed them to cherry pick, getting in some arguments about restrictions on the federal government that are definitely not text based. The Framers took out the old Articles of Confederation limitation that the Congress would have only the powers expressly delegated to it, because the limitation had proved to be disastrous to the Union and because they wanted the Federal passport although it was not enumerated. In the ratification debate they rewrote the text to put back in. “expressly delegated.” If it is a written Constitution we are looking at, however, the non-Article V amendment should not stick. Whatever the binding meaning is, however, you need some language that keeps dictionary and binding meaning apart because the dictionary or abstract meaning does not always trump.