Intentionalism vs. Textualism--why Literary Criticism matters for the Supreme Court

Stanley Fish, proving he is still very much a legal & literary critical mind to be reckoned with:

If interpreting the Constitution - as opposed to rewriting it - is what you want to do, you are necessarily an "intentionalist," someone who is trying to figure out what the framers had in mind. Intentionalism is not a style of interpretation, it is another name for interpretation itself.

Think about it: if interpreting a document is to be a rational act, if its exercise is to have a goal and a way of assessing progress toward that goal, then it must have an object to aim at, and the only candidate for that object is the author's intention. What other candidate could there be?

One answer to this question has been given by Justice Antonin Scalia and others under the rubric of "textualism." Textualists insist that what an interpreter seeks to establish is the meaning of the text as it exists apart from anyone's intention. According to Justice Scalia, it is what is "said," not what is "meant," that is "the object of our inquiry."

And then a little later:
Justice Scalia has it backwards: if you're not looking for what is meant, the notion of something being said or written is incoherent. Intention is not something added to language; it is what must already be assumed if what are otherwise mere physical phenomena (rocks or scratch marks) are to be experienced as language. Intention comes first; language, and with it the possibility of meaning, second. And this means that there can be no "textualist" method, because there is no object - no text without writerly intention - to which would-be textualists could be faithful.

It will be easier to see how he gets the above paragraph from the preceding ones if you read the whole piece.

Two small thoughts: 1) See, you don't need to write like Derrida to make a decent point about language, texts, and interpretation. (And see, the Times might even publish it.)

2) Unfortunately for all of us, the level of discussion around the appointment for Sandra Day O'Connor's replacement on the US Supreme Court ("SCOTUS") is likely to be a lot less intellectually serious. If there is any substantial, consequential discussion at all, that is.

Incidentally, Sean McCann has a much more critical response to the Fish column at The Valve.