On Originalism: Constraints Part I: Meaning Without Intent

In 2012, the late Justice Antonin Scalia gave a lecture defending Originalism regarding the First Amendment. Therein, Scalia stated, “Do you think that judges—that is to say, lawyers—are better at the science of what ought to be than the science of history?”[1] It’s an interesting question, though littered with problems and academic inquiry within the confines of the sentence itself, but interesting nonetheless. [2] But what is at issue with Scalia’s question? On its face, the issue is how to interpret the Constitution. But on analysis, the issue is how to constrain the interpretation of the Constitution; that is, there must be a legitimate functional process by which justices proceed when interpreting the text of the Constitution. I’m not going to get into the weeds of what it means to constrain an interpretation, or even the presumed value of constraining one’s interpretation of Constitutional text. For this paper, I’m only interested in addressing the problems of a Constitutional exegesis by way of public meaning originalism. [3] First, I will address the meaning without intent problem. In the second and third parts of this series, I will address, respectively, the historical approach problem [4] and the procedural justice problem. In 1996, Scalia clarified his originalist jurisprudence:

“You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”[5]

Scalia’s argument here is a puzzling one. To claim to be a textualist can easily be explicated as superfluous. [6] But what is most problematic is that Scalia believes meaning and intent can be so readily disentangled within his minimalist historian-jurist approach. Indeed, it’s a mistake to think that intent is so meagerly applicable to the “secret meaning in mind” of the framers. First, no one cares for a secret meaning of this or that framer of the constitution. Second, the outward intent of the Hamiltonian vs. Jeffersonian dichotomy, for example, is reviewable in the record. But Scalia’s disregard for intent is supposedly disentangled from the framers by means of the regular folk of that era; that is, we don’t need intent of whomever wrote the words, but the meaning of such words as used by the common people of the relevant time-period such words were written.

But this is a mistake too. Divorcing meaning from intent is a messy process. To play on Scalia’s own question: are judges—that is to say, lawyers—better at understanding language than linguists or philosophers of language? The words of the text any judge must interpret, coming from a framer, legislator, administrative agency, or reasonably intelligent person of some specific time is contextually-laden with intent. So, Scalia (probably unknowingly) and fortuitously scraps a B-style intention-based semantics theory of meaning on the behalf of just the framers, does that mean he’s extricated meaning from intention? [7] Take any concatenation of letters: e-q-u-a-l-i-t-y; or expand that concatenation to an utterance: m-a-r-r-i-a-g-e^e-q-u-a-l-i-t-y; or expand that into whatever sentence you’d like. These letters carry nothing by way of meaning without an intention and convention to how they’re strung together. Without the intention and convention, what’s to stop e-q-u-a-l-i-t-y from meaning sapphire?8 Setting aside the framers, there isn’t some appealing aggregate consensus or fictional reasonable persons to fixate meaning with intention and convention by way of 1787, 1868, or, for that matter, 1968. If intent is intractable from meaning, what are we to make of who’s public meaning to ascribe to some textual language? The prevailing status quo of the dominate social hierarchy in 1787, 1868, or 1968? If you cannot see the troubling issue in this question, then there’s an epistemic station of ignorance for another paper to address. Here, I’ve tried to explain that the end-goal is mistaken and problematic, but what about the practical method it’s achieved by and the procedural meta-methodology by which this mistaken end-goal is to be contrived?