Geneva and Guantánamo

Four justices believe that the President can imprison and torture people at will. If Stevens dies, we’ll be living in a dictatorship.

Quibble, quibble.

William Goodwin: He fancies himself a textualist, which means that you should interpret the Constitution according to the plain textual meaning it would have had at the time.

Scalia: Our manner of interpreting the Constitution is to begin with the text

Scott,
What? There’s a better tool for finding the definitions of words than a dictionary? Or should we just make up definitions as we go?

For someone who is so throughly entranced with the idea that texts contain clear and discernible meanings independent of authorial intent, he appears to be completely ignorant of the relevant issues in semantics and semiotics.

Indeed; his whole conception of language is frankly bizarre. The notion of language as a product of social convention, and of the role of context in making meaning, is out the window. It’s as if the deity imposed one (and only one!) meaning on every word and handed them to Moses along with the stone tablets.

Jet, what happens when two dictionaries differ on the meaning of a word, resulting in ambiguity in interpretation? Or when a single dictionary gives multiple definitions that potentially contradict each other? How does one decide? Eeny-meeny-miny-moe?

This basically resolves the debate about interrogation techniques…

There was no debate and I don’t think this resolves anything at all in respect to interrogation techniques. The only way to resolve the ‘debate’ is to arrest a bunch of torturers, prosecute and convict them and sentence to life with no parole.

But the SCOTUS doesn’t do arrest and prosecute – AG does, so it’s not going to happen. This is already pretty much a junta-style government in many respects; certainly in everything that concerns suspected terrorists non-citizens.

is this the distinction?

“Original Intent” = they wrote thus-and-so, but the words came out all screwy — go with what they must have been trying to say despite saying it all wrong

“Original meaning” = they wrote thus-and-so, but the words came out all screwy — go with what the words actually say despite that it’s not what they meant (and being screwy)

…but the words came out all screwy…

Divine words don’t came out screwy.

This is like double-guessing “thou shall not kill”, which according to the dictionary clealy means: ‘don’t harm important people’.

Well Jet, which is the best alternative source is one of the controversies in lexicography.

There are several ways to go about defining a word. The traditional way, the one that lexicographers get taught in schools, is to look at usage in texts. In general, you will get a better sense of the word’s meaning by selecting a thousand paragraphs containing the word randomly off the Internet than by reading a dictionary.

I am personally fond of the more radical substitutionist approach – construct a phrase which can be substituted in place of the word, and then test to see if its correct by taking example sentences containing the word and substituting the definition into it. If speakers agree that the new sentence has the same meaning as the old, then it’s a good definition.

There is also a very engaging and intermittently popular school of thought about the nature of meaning that draws on a radical rereading of Saussure and an extension of traditional doctrines in phonology to semantics. Its claims are a bit complicated since it draws on some fairly sophisticated notions in linguistics that are too weird for the average blog comment. However, this particular school of thought has by far the most immediate consequences for legal theory since it stipulates that texts possess meanings (in the plural) which are eternal, knowable at least in part, and independent of the intentions of authors or interpretations of readers.

At any rate, I see no evidence that Scalia is aware of any of this. He just seems to cite some generic Webster’s that probably hasn’t undergone a complete revision in 30 years. IIRC, there are no longer any American publishers with full time dictionary staff – new editions are the same as old editions plus a few trendy words added by unemployed English graduates working on temp contracts for near minimum wage. All genuinely new English dictionaries are coming from abroad. I cannot recall Scalia ever using a historical English dictionary to identify the meanings of words in laws as they might have been understood at the time of they were written.

Scalia may not have but Thomas cited Johnson in Kelo:

“The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever. At the time of the founding, dictionaries primarily defined the noun “use” as “[t]he act of employing any thing to any purpose.” 2 S. Johnson, A Dictionary of the English Language 2194 (4th ed. 1773) (hereinafter Johnson). The term “use,” moreover, “is from the Latin utor, which means ‘to use, make use of, avail one’s self of, employ, apply, enjoy, etc.” J. Lewis, Law of Eminent Domain §165, p. 224, n. 4 (1888) (hereinafter Lewis). When the government takes property and gives it to a private individual, and the public has no right to use the property, it strains language to say that the public is “employing” the property, regardless of the incidental benefits that might accrue to the public from the private use. The term “public use,” then, means that either the government or its citizens as a whole must actually “employ” the taken property. See id., at 223 (reviewing founding-era dictionaries).”

Not that makes him right or Johnson reliable.

Steven, the trick here is the passive verb. When Scalia says “[the Framers’ writings] display how the text of the constitution was originally understood” you have to ask whether what he is looking at is merely how the Framers understood the constitution. This is privileging the intent of the Framers in exactly the way that he says he isn’t doing.

Alternatively, he could privilege the way the constitution was understood by the people who had to put their understanding of it into practice: the courts. This is far more rational and coherent, and it is also a respectable doctrine in semantics and anthropology. But it is essentially the same as the well established doctrine of stare decisis and allows that as courts put their understanding of the constitution into practice, they might change their understanding of it. But, if he agreed to that, then he wouldn’t be any kind of textualist or originalist.

Tom, Johnson is unreliable and Thomas is wrong. Note how the definition is recursive, defining “use” with the word “use”. That’s a lexicographic no-no.

But Thomas looked up the wrong word: “Public” is not a synonym for “government”, as any dictionary will tell you, therefore “public use” is not the same as “government use”.

But thanks for the citation, it’ll come in handy if I have to write a paper on this one day.

Steven, I would argue that he’s really doing more than just counting the Framers among those doing the understanding. For example, I doubt we will ever see Scalia asking how illiterate farmers in upstate New York understood the constitution. For all his denials about privileging authorial intent, he seems very much to be privileging them, if not as individuals then at least he seems to be privileging the understanding of the constitution by a small, literate class familiar with legal principles, or at least, he is when he is using a consistent methodology for discovering meaning.

It’s important if obvious to note that Johnson’s dictionary was based on British English, not American, so quite what relevance it would have to how the constitution would be understood in America is beyond me. And what the meaning of the Latin cognate has to do with contemporary meaining is even more obscure. Frankly, I think Thomas is just showing off. He doesn’t need to define “use” – the point in question is whether the use is public.

It’s quite ironic to see people describing originalism/textualism as a religious reading of the Constitution. One of the decisive characteristics of scripture is that you can’t change the words, and so you’re stuck “reinterpreting” them when you need to update it.

The Constitution, by contrast, being merely a form of law, with a procedure for amendment, can feasibly be interpreted in an unchanging manner, because when it needs to change, the actual text CAN be altered.

It’s the “living” constitutionalists, in other words, who treat the Constitution like scripture. Originalists are treating it like law.

Yes, just as they recently did with the fourth amendment.

the thing that kills me about scalia is the dishonesty. take the following, in the link poole gives:

Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment. Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.” But that’s not how the American people thought in 1920.

in 1875, the supreme court held in Minor v. Happersett that the 14th amendment did not give women the right to vote, a decision they subsequently declined to reconsider. might that have something to do with the perceived need for the 19th amendment? might the fact that Minor v. Happersett convinced the suffragettes to abandon attempts to obtain the vote from the courts be significant here?

not to scalia. he doesn’t even mention Minor v. Happersett.

Let us say he asks, how would he find? Assuming illiterate farmers, and why upstate NY? Granted now most are but then?, means incapable of writing how could be get at what they thought? Accounts of others? But surely those wouuld be less than helpful, filtered as they would be through literacy and such.

And this is why textual originalism is such an asinine legal philosophy. Different people understand the same words in different ways, even in the same time period. One person’s cruel and unusual punishment is another’s richly deserved justice. So you’re immediately choosing to elevate one person or group’s understanding over anothers. Once you’ve done that, you then have to ascertain the meaning as understood by your chosen group. Given that not all people can even agree on meaning in the present, and given how fluid language and meaning is over time, how much more difficult it is to divine someone’s understanding of a text over 200 years ago. To claim that textual originalism is the most reliable way to interpret the law, as Thomas and Scalia do, is utterly absurd to anyone with even a passing knowledge of linguistics or textual criticism. There may be good reasons to dislike a “living constitution”, but reliability isn’t one of them. The two things we have the clearest grasp on are the text of the constitution and the present meaning of the words. Legislative intent is scarcely more reliable than textual originalism – what if, as with Bush’s signing statements, the legislative intent as best we can discern is flatly contradictory?

snuh,
Since when did the SC take the stance that previous courts were infallible and cases never needed revisiting? Scalia deserves his criticism, but this pile-on is like watching two years olds fight in the mud.

Ginger Yellow,
So what’s your solution? We just interpret the laws of yesterday as whatever we want them to mean today? Nothing like giving 9 jerks with life time job security and a gigantic sense of self-importance the power to do as they please, the legislators be damned.

Engels,
Yes, I see it now. Scalia nearly buried in old dusty dictionaries from every period since the revolution. Diagrams and flowcharts marking the changes of words, adorn his walls with no space wasted. His clerks are not law clerks, but linguists and astrologists. Scalia divines the meanings of law using only these dictionaries, some tea leaves, and the reading of chicken entrails.

But since you appear a bit lost as to what happened in the Scott, Kvetch, Jet thread let me spell it out for you. Scott said Scalia is a fool to use dictionaries. I pointed out dictionaries, flawed as they are, still deserve to be a primary source. Kvetch pointed out the obvious flaws with dictionaries and language in general. I mocked kvetch for crying about life and that sometimes things aren’t easy.

And if Kvetch was making the point you say he was making, then all I can answer is DUH! If you can assemble the strength, for what must be a great deal of effort for such as yourself, and try to read my last response to Kvetch. You will see I make the point you claim he was making.

If this proves too hard, drink some gatorade and eat a powerbar, warm up with some “See spot run” literature, and then give it another go.

It is as matter of fact difficult to reconstruct meaning; it is also possible, or so it would seem. Folks translate all manner of aged texts, the bible, Rousseau, Pufendorf and what not.

Perhaps the real deal translator/explainer is he or she who bows the head in seemly modesty and suggest that this text subjected to these multifarious interpretive methods yields this meaning; however, what I claim is not authoritivative. Perhaps, and this is obviously a big perhaps, the complaint about “originalism,” “textualism,” “living constitutionalism,” “intentionalism” or other is the implicit claim that any on its own resolves the thorny problem of finding as opposed to creating meaning.

When I’ve gone into the archive and delved into the letters and whatnot of those now long dead, I soon realized that some issues, often the big ones, are obvious while others, although minor but of equal importance for understanding what was acutally “meant,” I could never resolve.

Scalia, Thomas, Jet, or Ginger Yellow are, I would suggest, wrong not because of the methods or results suggested but because of the certainty forwarded.

But then again, what the f*ck do I know.

Tom Bach – I certainly don’t think my philosophy resolves the problems at all. I just think it’s the most consistently workable approach.

jet, i’m not saying that courts never change their mind; all i’m saying is that scalia never mentioned that the supremes had actually specifically addressed his hypothetical, which is surely relevant when explaining the perceived need in the early 20th century for the 19th amendment.

snuh,

I think we are talking past each other. To me it is obvious that Scalia is not saying that the 19th amendment was not needed, only that it wouldn’t be needed to day in a mostly textualist/living Constitution court. I’m not sure why you would read his words otherwise, but perhaps you are using a “living Scalia” interpretation :P

‘But proper courts martial are a considerable step up from the military commissions previously proposed.’

You may be right and I am just passing on information that is, annoyingly, not online yet. But Shafiq Rasul (Guantanamo guy) let slip at one point that this ruling would only apply to 10 of the Guantanamo prisoners (out of nearly 500) (i.e. the ones that have already been charged). As this article makes the most dubious aspects of the ‘tribunals’ have NOT been banned. The Bushite Munchkin on Newsnight made clear that Roberts (who excused himself this time) was viewed as the Bushies as a bulwark against this ever happening again. As for torture: I was under the impression that it was already illegal under the UN convention on torture, which the US has signed?

Again I don’t want to spoil anyone’s party: this is a good ruling. But it is only the very beginning of restoring the rule of law to the White House. By itself (according to Newsnight) it will change little.

“As for torture: I was under the impression that it was already illegal under the UN convention on torture, which the US has signed?”

Well yes, but the US statutory definition of torture does not specify what constitutes “severe physical or mental pain or suffering”. Hence the infamous Bybee and Yoo memos. The recent McCain sponsored amendment on torture should have rectified that by banning cruel, inhuman and degrading treatment (a far lower threshold) of detainees in US custody and requiring interrogation techniques to comply with the Army Field Manual. Bush’s signing statement, however, clearly indicates that the administration thinks they can ignore it.

“So what’s your solution? We just interpret the laws of yesterday as whatever we want them to mean today? Nothing like giving 9 jerks with life time job security and a gigantic sense of self-importance the power to do as they please, the legislators be damned.”

My solution is that we privilege the meaning given to legal texts by the people who have to take actions based on those meanings. That would be the courts. There are a lot of different schools of thought on what constitutes the meaning of a text and what is the best way to write a definition, but for the most part semantics minimizes problems of reference as either external to meaning or too hard to deal with. So, I argue that the referential semantics of a text are to be found in the actions they entail, and that it is the referential semantics of the text which have the most bearing on court decisions. I think this doctrine is sound and already entrenched in legal theory.

Legislative texts are almost exclusively written by trained lawyers with an eye on the meanings given to words and phrases by past courts. If courts in turn also privilege the meanings given to words and phrases by past courts, it is then possible for legislators to produce legal texts which lead to the actions they envision without courts having to privilege legislative intent in their readings.

Scott,

So “Daria drives a corvette.” requires no understanding of reference (or truth) to understand meaning? Isn’t that called under-deteremined? Should law be decided without understanding of the reference or truth of a text?

As far as priveledged words go, that is great for a word to only have one sense in a given context, but this is not always the case and why we need judges.

belle le triste,

The statute excludes only merchandise “of foreign manufacture,” which the majority says might mean “manufactured by a foreigner” rather than “manufactured in a foreign country.” I think not. Words, like syllables, acquire meaning not in isolation but within their context. While looking up the separate word “foreign” in a dictionary might produce the reading the majority suggests, that approach would also interpret the phrase “I have a foreign object in my eye” as referring, perhaps, to something from Italy. The phrase “of foreign manufacture” is a common usage, well understood to mean “manufactured abroad.”

K-Mart v. Cartier, 486 U.S. 281, 319

It does appear the ‘original intent’ was to keep “foreigner” created goods out of the US.
IP law predates the Constitution by hundreds of years. Think printing presses and guilds and try Wikipedia.

“It’s as if the deity imposed one (and only one!) meaning on every word and handed them to Moses along with the stone tablets.”

Scalia is an authoritarian, in politics and in language.

Uncle Kvetch,

Could you cite or give an example of what you mean? The dissenting opinion I cited and the quote I gave from Scalia imply the opposite.

Funny that our only common ground seems to be a shared sense of civil rights and a dislike for Scalia, and yet we can’t be civil to each other even when bashing Scalia. But let us bury the hatchet and be civil and respectful to one another. I’ll go first and you can take a few free shots at me until you get used to the idea.

wait, the way you use the word “truth”, the conditions of truth being met by a sentence in a work of fiction are the same as the conditions of truth being met by the same sentence NOT in a work of fiction — if i am reading you correctly this would explain a lot but i am surely misunderstanding you

But let us bury the hatchet and be civil and respectful to one another.

Agreed, and thank you.

Here’s where I’m coming from: I spent over ten years in grad school studying linguistic anthropology, and while semiotics/semantics/philosophy of language wasn’t central to my studies, I did enjoy getting my head around various authors grappling with the problem of meaning. Which might explain why I took such umbrage at the suggestion that I see the slipperiness of meaning as something to “cry” about.

Now, my impression of Scalia–and it may not be entirely fair–is that the slippery, indeterminate, and inherently ideological nature of language is something that he reallly doesn’t recognize, much less enjoys grappling with. My understanding of his “textualist” approach is that meaning inheres in language in a transparent, readily accessible, and unproblematic way–a concept of language that linguistic theory from Saussure on has pretty much torn to shreds. But based on Tony’s intellectual style and what we know of his personality (e.g., his penchant for mean-spirited jabs at his fellow jurists in many of his opinions), I would imagine that he would dismiss the whole enterprise as so much pointy-headed academic nonsense, and brush it aside with a hearty “vaffanculo.”

But like I said, my take may not be entirely fair, and there’s much upthread to consider. And I’m not nearly as up on the subject as I was a couple of years ago, so I’m going to defer to Scott Martens on the finer points of linguistic theory and sit back and enjoy the discussion.

words just mean whatever they need to mean for him to arrive at the desired […] result

This is true to a large extent for every judge in every court in every country. It’s just that this guy is a bit more odious.

So “Daria drives a corvette.” requires no understanding of reference (or truth) to understand meaning?

This is like arguing with a rabbit, but try “Daria can drive a Corvette” in an interpretive framework, given that legal language is bound up with such permissive and restrictive constructions.

Now, my impression of Scalia—and it may not be entirely fair—is that the slippery, indeterminate, and inherently ideological nature of language is something that he reallly doesn’t recognize, much less enjoys grappling with.

One could readily extrapolate from his Catholicism, with the concept that it’s up to an ecclesiastical hierarchy to tell the rabble what those laws really mean. His sense of interpretive privilege is ex officio; he considers his ‘approach’ to be valid because he is in a position to make it.

But, yes: his is the kind of approach to eighteenth-century texts that makes literary scholars of that period roll their eyes.