Two Birds and Reader-Based Originalism

Speaker intent governs speaker meaning. Hearer meaning doesn't. Thus legislative intent controls, not contemporaneous reader meaning (even if there were such a thing).

Recasting Canons of Interpretation and Construction into "Canonical" Queries: Further Canonical Queries of Presented or Transmitted Text

 

                                                                     Abstract

This Article draws from, builds upon, and continues my prior article (published in 2022 in the Wake Forest Law Review) addressing the conversion of canons of construction into “canonical” queries in both the public and private sphere. See such prior article here.

In this Article, I continue exploring further groups of canons and queries of transmitted/presented text including those outlined in appendices of my prior article. These further groups include: Queries of Signifier Scope (the Ejusdem Generis Query, the Noscitur a Sociis Query, the Expressio Unius Query, the Antecedent/Subsequent Query, and the Anaphora Query); Queries of Signifier Fit and Coherence (the Whole Text Query, the No Surplusage Query, the Absurdity Query, the Scrivener’s Error Query, the Exercise of Power Query, the Consistent Meaning Query, the Fit with the Surrounding Text Query, the In Pari Materia Query, the Particular vs. General Query, the Ellipsis Query, the Conjunction Query, the Disjunction Query, the General Query of Severability, the Relevance Query, the Presupposition Query, and the Preconception Query); and Queries of Context (including Queries turning on Linguistic, Physical, Cognitive, Type of Discourse, or Other Relevant Contexts).

This is the second in a series of four planned articles. The third will address queries of meaning and time. The fourth will address further miscellaneous queries of intent, motive, meaning and policy. My hope is that the four articles taken together will provide a detailed response to, among other works, Scalia & Garner's book titled Reading Law. 

This Article can be downloaded here.

Keywords: interpretation, construction, canon of construction, ejusdem generis, noscitur a sociis, expressio unius, anaphora, surplusage, absurdity, scrivener's error, pari materia, ellipsis, severability, context, conjunction, disjunction, meaning, relevance, whole text, text, semiotics

Recasting Canons of Interpretation and Construction into "Canonical" Queries

In a new Article I advocate recasting the canons of construction into neutral queries rather than presumptions or directives of meaning. Such an approach would not only rectify problems with the canons discussed in this Article. It would also provide lawyers with highly useful "checklists" of semantic questions lawyers might otherwise overlook when interpreting and construing meaning in contexts of both private law (e.g., contracts) and public law (e.g., constitutional provisions and statutes).

As a part of such advocacy, this Article explores in detail the following "canonical" queries and sub-queries (and the canons of construction they replace where applicable): the applicable text query, the plain meaning query, the ambiguity sub-query, the vagueness sub-query, the indeterminacy sub-query, the ordinary meaning query, the technical and term of art query, the grammar query, the punctuation query, the further meaning query, and the irony/non-literal meaning query. This Article also includes a detailed Appendix outlining further needed queries to be addressed in future articles. These include the ejusdem generis query, the noscitur a sociis query, the expressio unius query, the antecedent/subsequent query (rejecting the rule of the last antecedent), the anaphora query, the whole text query, the surplusage query, the absurdity query, the exercise of power query (rejecting general construction against the drafter), and queries of meaning through time.

Additionally, to help direct proper application of the queries, this Article also explores the distinction between interpretation and construction. This Article can be opened or downloaded by clicking here.

How To Do Things With Signs: An Overview of Semiotics for Lawyers and Others

Click HERE for a link to my current draft of "How To Do Things With Signs: Semiotics in Legal Theory, Practice, and Education."

Abstract

Discussing federal statutes, Justice Scalia tells us that “[t]he stark reality is that the only thing that one can say for sure was agreed to by both houses and the president (on signing the bill) is the text of the statute. The rest is legal fiction."

How should we take this claim? If we take "text" to mean the printed text, that text without more is just a series of marks. If instead we take "text" (as we must) to refer to something off the page such as the "meaning" of the series of marks at issue, what is that meaning and how do we know that all the legislators "agreed" on that "meaning"? In seeking answers here, we necessarily delve into semiotics (i.e., the “general theory of signs”) by noting that meaningful ink marks ("signifiers) signify a meaning beyond themselves (the "signified.") Thus, understanding how signs function is integral to lawyers' textual and linguistic analysis. Additionally, as this article demonstrates, legal analysis and rhetoric are much impoverished if lawyers ignore nonverbal signs such as icons, indices, and nonverbal symbols.

In providing a broad overview of semiotics for lawyers, this article thus (1) begins with a general definition of signs and the related notion of intentionality. It then turns to, among other things, (2) the structure and concomitants of signs in more detail (including the signifier and the signified), (3) the possible correlations of the signifier and the signified that generate signs of interest to lawyers such as the index, the icon, and the symbol; (5) the expansion of legal rhetoric through use of the index, the icon, and the non-verbal as well as the verbal symbol, (6) the nature of various semiotic acts in public and private law (including assertives, commissives, directives, and verdictives); (7) the interpretation and construction of semiotic acts (including contracts as commissives and legislation as directives); (8) the role of speaker or reader meaning in the interpretation and construction of semiotic acts; (9) the semiotics of meaning, time, and the fixation of meaning debate; (10) the impact of signifier drift; (11) the distinction between sense and understanding; and (12) some brief reflections on semiotics and the First Amendment. This article also provides an Appendix of further terms and concepts useful to lawyers in their explorations of semiotics.

Keywords: semiotics, intentionality, signifier, sense, reference, meaning, index, icon, symbol, rhetoric, speech act, interpretation, construction, speaker meaning, reader meaning, originalism, first amendment, intent, contracts, legislation, Peirce, Shakespeare, directive, commissive, verdictive

Voltaire and the Semiotics of Dress

For those who doubt that there is a semiotics of dress, here is Voltaire wigged and wigless. Many thanks to the National Gallery of Art in Washington, D.C. for displaying these busts in near tandem.

Making Good Sense: Pragmatism’s Mastery of Meaning, Truth, and Workable Rule of Law

Here is the abstract for my latest article forthcoming in the Wake Forest Journal of Law & Policy. In the article, I try to take a middle path between two types of error plaguing present times: "post-truthism" and formalism.

Abstract

The hermeneutic pragmatism explored in this article timely examines how “post-truth” claims over-estimate semantic freedoms while at the same time underestimating semantic and pre-semantic restraints. Such pragmatism also timely examines how formalists err by committing the reverse errors. Drawing on insights from James, Peirce, Putnam, Rorty, Gadamer, Derrida, and others, such hermeneutic pragmatism explores (1) the necessary role of both internal and objective experience in meaning,  (2) the resulting instrumental nature of concepts required to deal with such experience, (3) the related need for workability to apply to the “the collectivity of experience’s demands, nothing being omitted,” (4) the inherent role of morality and other norms in measuring such workability, (5) the semantic as well as experiential nature of our workable realities,  (6) the semantic freedoms involved in constructing, framing, and retaining our workable realities and concepts, and (6) the semantic, pre-semantic, and other restraints on constructing, framing, and retaining our workable realities and concepts.

Such hermeneutic pragmatism also introduces Eunomia, a real-world alternative to Dworkin’s superhuman judge Hercules.  Named after the Greek goddess of good order, the human Eunomia represents the reasonable judge excellently versed in (among other things) legal theory, legal practice, linguistics, and philosophy of language.  Additionally, in its appendices, this article surveys the pragmatic restraints of “implementives” and provides a detailed overview of pragmatic “workability” restraints for both law and fact.

In addition to countering formalist error, such hermeneutic pragmatism thus timely counters troubling “post-truth” claims in certain segments of government and society. For example, The Washington Post tells us that President Trump is “known for trafficking in mistruths and even outright lies;” that “The president often seeks to paint a self-serving and self-affirming alternate reality for himself and his supporters;” that, through May 31, 2018; “Trump had made 3,251 false or misleading claims in 497 days--an average of 6.5 such claims per day of his presidency;” and that  Donald Trump, Jr. has posted poorly-doctored images making “his father’s Gallup presidential approval rating look [ten points] higher than it actually is” while claiming “I guess there is a magic wand to make things happen and @realdonaldtrump seems to have it.”  Additionally, the President’s attorney Rudy Giuliani has expressly claimed that “Truth isn’t truth.” Competent and ethical lawyers must of course reject such mendacity.

("Sense" in the title of this article means not only “meaning conveyed or intended” but also “capacity for effective application of the powers of the mind as a basis for action or response.” See Sense, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014) “Workable” has the broad meaning discussed in Sections II, IV, and Appendix C of the Article.)

Addition to Strings of Thought 5-19-2018

Hermeneutics

                               To Gadamer

Though eye must squint, eye must explore the bird

Who plays at the horizon of the word,

Whose far tints flash, far notes lag as it hops 

Beyond and back from where the language stops.

For the entire "Strings of Thought" as it currently stands, see here.

Addition to "Strings of Thought" (2/7/18)

2/7/18 A legislative bill or other proposal isn’t simply a string of words on a page. Instead, a legislative bill or other proposal involves concepts (the signified) to which words (the signifiers) refer with varying degrees of precision.  Legislators debate the concepts signified and the signifiers as signifying such concepts.  Justice Scalia therefore oversimplifies how language works when he claims that “the only thing one can say for sure was agreed to by both houses and the President (on signing the bill) is the text of the statute.”  (Reading Law, p. 376) Justice Scalia oversimplifies here because any such text was adopted as part of a greater whole, as signifiers of concepts involved in the bill.  For example, a statute reading “All cars must drive on the write side of interstate roads” adopted by both houses of Congress and signed by the President no doubt likely means “All cars must drive on the right side of interstate roads.” It’s hard to believe that both houses and the President agreed on “write side” instead of “right side” of the road. I at least cannot “say for sure” that they did. Justice Scalia concedes the same by acknowledging what he considers “the rare case of an obvious scrivener’s error.” (Reading Law, p. 57)  In the real world, of course, obvious scrivener’s errors are hardly rare.

The entire text of "Strings of Thought" can be found here.

Addition to "Strings of Thought" (1/30/18)

Legislative Intent

1/30/18  Legislative “intent” lies in legislatures’ speech acts and not legislators’ speech acts.  That is, legislative “intent” is the speaker meaning of legislatures not legislators—confusing the two is a category mistake. For example, when the legislature adopts a rule requiring drivers to drive on the right side of the road, the legislature has performed a directive speech act adopting a rule to some end or purpose (such as changing driving patterns to enhance road safety).  When the legislature censures someone, it has performed an expressive speech act condemning someone for some end or purpose (such as discouraging future bad behavior on the part of public officials).  The different purposes (and the plans involved in such purposes) distinguish the different types of speech acts. Recognizing this distinction between legislature and legislator speech acts avoids pseudo-quandaries such as “How can we ever aggregate the subjective intent of countless legislators to determine legislative intent?” or “How do we include the intent of a legislator who votes for a bill for unrelated reasons?” Instead, we ask: “What is the objective bill or proposal (and the concomitant purpose or plan or both) properly adopted by the legislature?”  We also ask: “What are the objective concepts involved?” while acknowledging such concepts can have yet-to-be explored threads and extensions.

1/30/18 A legislature typically speaks best when it adopts a bill or other proposal (and any concomitant purpose or plan) after reasonable debate by legislators.   Although individual legislators’ speaker meaning in such debates can be highly relevant evidence of the legislature’s speaker meaning, legislators’ speech acts are not legislatures’ speech acts. 

The entire post of "Strings of Thought" can be found here.

Addition to "Strings of Thought" (1/21/18)

Speaker Meaning

1/21/18 “Original” speaker meaning includes the unexplored.  Imagine I buy a netted device I categorize as “my hammock” before I unbox and see it.  On the next day, I unbox “my hammock,” count its strings, and note their makeup and weave. On the third day, I tie “my hammock” between two trees.  I broadly gauge its new shape when tied into the world. On the fourth day, I refine “my hammock’s” new shape:  it contradictorily resembles both a canoe and a crescent moon. On the fifth day, I wonder whether “my hammock” now qualifies as a bed and tentatively conclude that it does. On the sixth day, I lie down in “my hammock” and see interesting new views from its vantage point. On the seventh day, I rest with no hammock thoughts in my head.  The “original” meaning of “my hammock” thus casts a wide and variable net not captured from day one. Instead, day by day through day six, I have obtained fuller and fuller understandings of “my hammock” including how it intersects with (and provides vantage points to) the world to which it is tied.  Thus, any “original concept” signified by “my hammock” is larger than any “original conception” (or first-day conception) of something boxed and unseen, is larger than any second-day conception adding counted strings, their makeup, and their weave, is larger than any third-day conception of the hammock as tied, and so on.  Furthermore, for those seeking speaker meaning, any “original concept” and any preceding daily conceptions don’t sleep the seventh day.

The entire post of "Strings of Thought" can be found here.

Speaker Meaning and the Interpretation and Construction of Executive Orders

Here is an abstract of my latest article posted on SSRN:

ABSTRACT:

This Article explores the interpretation and construction of executive orders using as examples President Trump’s two executive orders captioned “Protecting the Nation From Foreign Terrorist Entry Into the United States” (the “Two Executive Orders”).

President Trump issued the Two Executive Orders in the context of (among other things) Candidate Trump’s statements such as: “Islam hates us,” and “[W]e can’t allow people coming into this country who have this hatred.” President Trump subsequently provided further context including his tweet about the second of his Two Executive Orders: “People, the lawyers and the courts can call [the second of the Two Executive Orders] whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” 

President Trump & Word Association

As a lover of words, I am of course interested in the following Quinnipiac poll which asked responders "What is the first word that comes to mind when you think of Donald Trump?"  The list provides endless fodder for analysis of speaker meaning.  The top two answers were "idiot" and "incompetent."  Did the speakers mean some subtle difference between those terms?  What about any meant difference between those two terms and such other terms as "unqualified," "ignorant," "stupid," and "clown"?  The third most frequent response is "liar."  Was "liar" meant in a different sense from "dishonest" or "con-man" which pop up later in the list?  Is "leader" (fourth on the list) a complement or is it a factual statement such as "president"  (sixth on the list)?  What about "trying"?  Does that mean the man is attempting to succeed (my guess but it's only a guess) or that he is "causing strain, hardship, or distress" (American Heritage College Dictionary 4th ed.)?  I also wonder how Originalists like Neil Gorsuch would interpret and parse each word in this list.  Reasonable contemporaneous readers can of course draw wildly different conclusions about the meanings of these words.

A Sonnet on the Jerusalem Cross

For me, the Jerusalem Cross is endlessly inspiring:  Christ before Paul; the Kingdom that’s within; the wisdom of the Buddha; William Blake and all he tried to do, say, draw, and paint; the semiotics of the endless signified and signifier; the freedom and choice in how we frame; the crosses we bare and bear; the number 5 that I somehow took as “my” number when I was a child.  Such crosses cross beyond mere prose:

               The Jerusalem Cross

Her references are kingdoms built within,

Are centers of what is, are plots of peace,

Are emanations of Blake’s Albions,
Are heavenly vistas of Jerusalems,

Are fresh imaginations testing worlds,

Are fourfold noble truths, are eight crossed paths

That frame a centered cross that wisdom bares

To study all the crosses that it bears.

Her signifiers are two crossing lines,

Four smaller pairs, too, eight paths framing round

Just four right angles centering sixteen more

That also form at most a single square--

Or four or five depending on the count.†

                          *****


†(The cross's lines are personal as well
  In ways they interweave both "H" and "L,"
  In ways they cover Everyone with "E"
  Should some find some initials tough to see.)

 

"Nature Hath Framed Strange Fellows" William Shakespeare and Natural Law

A. Introduction

             

             Natural law theorists might turn to The History of Troilus and Cressida to start building their case.  They might begin with Ulysses’ lofty outline of the “natural” order:

The heavens themselves, the planets, and this center          

Observe degree, priority, and place,                            

Insisture, course, proportion, season, form,                    

Office, and custom, in all line of order,                       

And therefore is the glorious planet Sol                        

In noble eminence enthroned and sphered                         

Amidst the other; whose med'cinable eye                         

Corrects the influences of evil planets

And posts, like the commandment of a king . . . .[1]                      

Such theorists might then use Ulysses’ further stirring words to blend such “natural physical order” with a “natural order” in law and morality as well:

Take but degree away, untune that string,                      

And hark what discord follows. Each thing meets                

In mere oppugnancy.  The bounded waters                          

Should lift their bosoms higher than the shores              

And make a sop of all this solid globe;                         

Strength should be lord of imbecility,                          

And the rude son should strike his father dead;                 

Force should be right; or rather right and wrong,             

Between whose endless jar justice resides,                    

Should lose their names, and so should justice too.^[2]                             

As far as it goes, it is hard to imagine a more eloquent case for natural law than this.

Gorsuch and Originalism: Some Critiques from Logic, Scripture, and Art

(This blog combines, expands, and end-notes two prior blogs)

Neil Gorsuch? Originalism and the Ten Commandments

Current Supreme Court nominee Neil Gorsuch claims that judges should “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be ....” On its face, this is at best an odd claim. Laws are generally forward looking in their desire to govern future behavior. And even if we could always focus back to determine legal meaning, why would we want to disconnect meaning from ongoing life in such a way? Why, for example, should the absence of email in George Washington’s day mean our modern use of email isn’t covered by our modern notions of “speech”? Excluding email from “speech” today would be silly and we have refined “speech” to include email in both law and in life. Of course, if we refine meaning for “speech” and “email,” why shouldn’t we do the same for other things in other contexts as they change with time? It’s hard to see how Originalism’s odd backwardness isn’t fatal from the outset.

Parsing Babble in North Carolina's HB-2 and Calling Out the Need for Immediate Repeal

Read here my parsing of ambiguous bathroom provisions in North Carolina's HB-2 and the immediate need to repeal the flawed statute in light of further imminent threatened boycotts of the state.

Ekphrasis & Prose: Sonnet Translations of Poe & Hawthorne

I sometimes wonder whether a prose piece should have been verse from the outset.  Could the deep meaning have been more effectively captured and conveyed by poetic form than by prose?  I've wondered that, for example, in the case of Poe's "The Mask of the Red Death."  With no illusions that Poe's sonnet wouldn't have been much better, here's a concrete example of what I mean: 

Shadow After Poe 

We noticed there was pestilence about.

We played instead of passive victim an
Aggressive agent capable of plan
And execution.  In, we locked it out,

A simple action, really, which we sealed
With weighty velvet curtains drawn across
An iron door bolted tight.  “Our gain, Hell’s loss!”
We toasted with good bourbon and were steeled.

“God helps who helps himself,” we boasted till
We saw a shadow by a comrade still
And cold throughout the reverie.  It hid

As quick within the heavy draperies.  Did
Drink fool?  No.  Oh, no fancy has composed
Such vast lost voices in a single ghost.

I've also wondered the same about individual passages in longer works.  Here, for example, is a bit of Hawthorne's The House of The Seven Gables set to sonnet form:

Originalism and the Fall of Icarus

Well, here we go again. With Neil Gorsuch as the current Supreme Court nominee, once more we hear praises of “originalism” as a judicial interpretive philosophy. As Gorsuch puts it, judges should “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be . . . .” Since law generally looks forward to govern future and not past behavior, and since context drives meaning in much more complex ways than Gorsuch’s words suggest, I’m amazed that people take this backward-looking and overly-simplistic philosophy seriously. I’ve written at length about the problems with such an approach but now also wonder if an old painting might more quickly dispatch such error.

Beyond Words Alone: Poets as Artists of the Intentional

 

In his wonderful The New Book of Forms, Lewis Turco tells us that poets “focus on mode, on language itself.”  Focusing on language, a poet in Turco’s view is therefore an “artist of language; his or her concentration is upon the language itself.”  Taken this way, “[p]oetry can thus be defined as the art of language.”

Though these definitions of poets and poetry are correct as far as they go, they do not go far enough. Poets are artists of the intentional; they are artists using signs that point to things beyond the signs themselves.  Since words are not the only signs, why should poets limit themselves to words?  Using C.S. Peirce’s terminology, there are in fact three kinds of signs: symbols (arbitrary signifiers such as words), icons (signifiers such as paintings that resemble what they signify), and indexes (signifiers like photographs or weathervanes that participate in what they signify).  In the realm of symbols, why should poets limit themselves to words?  In the broader realm of signs, why should poets ignore icons and indexes?  They should not of course, and William Blake gives us excellent proof.