The Square Circuit

Academia, parenthood, living in a bankrupt city, and what I read in the process.

Tuesday, July 19, 2005

Is There A Text In This Constitution?

Stanley Fish's op-ed piece in today's TIMES is great, typical Fish—smart scholarship and clever argumentation leading to a conclusion that I think I dislike. His arguments make me uncomfortable but it's hard to dismiss them, which is why I like reading him so much. The article argues that our sanctimonious ideas about interpretation—in this case, the interpretation of the Constitution itself—are grounded in erroneous or intellectually dishonest understandings of what it means to interpret a text. He argues that Scalia's "textualist" position (that we must interpret the pure, carved-in-stone-by-an-unseen-hand text of the Constitution without reference to any intention behind the text, even the intention of its writers) is not only foolish but impossible, and that the only valid type of interpretation of the constitution is the "intentionalist" position—albeit an "intentionalist" position somewhat different than the one so smugly demanded by the ideologues spoiling for another Clarence Thomas. Instead, he suggests discarding the labels—activist, textualist, intentionalist—that will inevitably be thrown around and following the following strategy for vetting nominees:

"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?"

I'm not sure that Fish's position is going to advance the cause of the kind of justices I'd like to see on the Court, but it does call the right on their misleading, and frequently dishonest, use of language to try and set the terms of this debate.


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