December 08, 2005

A result that no sensible person could have intended

When intelligent and sensible people discuss the meaning of a piece of speech or writing, they naturally combine dissection of the text itself with analysis of what the author seems to have meant to convey by producing it. If the authorship is unknown or multiple, people still reason about authorial or editorial intent, either by imagining a coherent authorial voice, or by framing hypotheses about a less coherent process of collaborative creation. The reason is simple: much of what we understand as the clear meaning of a text can't be derived without reasoning about communicative intentions.

As we mentioned here earlier, Justice Antonin Scalia nevertheless argues that the analysis of communicative intent has no place, as a matter of principle, in discussions of meaning. Over the past couple of weeks, I've been doing some background reading about the philosophy of legal meaning, and also reading many of Justice Scalia's judicial opinions. I'm still digesting the philosophical discussions, but I've noticed two things about Scalia's opinions that I'm ready to share. One observation is that his linguistic exegesis is insightful and even compelling. Whether or not I like his conclusions, his interpretation of the text usually convinces me. But I've also noticed that he doesn't follow his own prescription: like everyone else, he often brings communication-intention, implicitly or explicitly, directly or counterfactually, into his analysis of the meaning of texts.

First, let's document Scalia's textualist creed. In a recent review of Steven Smith's book Law's Quandary, discussed here earlier, he wrote:

The portion of Smith’s book I least understand—or most disagree with—is the assertion ... that it is a “basic ontological proposition that persons, not objects, have the property of being able to mean.” “Textual meaning,” Smith says, “must be identified with the semantic intentions of an author..."

According to Scalia's view, meaning has to do only with understanding texts or utterances, and not at all with anyone's intent to use them to communicate:

Smith confuses, it seems to me, the question whether words convey a concept from one intelligent mind to another (communication) with the question whether words produce a concept in the person who reads or hears them (meaning).

Scalia counters Smith's radical purposivism by arguing at some length for an equally radical textualism, giving examples like this:

Two persons who speak only English see sculpted in the desert sand the words “LEAVE HERE OR DIE.” It may well be that the words were the fortuitous effect of wind, but the message they convey is clear ...

and this:

If the ringing of an alarm bell has been established, in a particular building, as the conventional signal that the building must be evacuated, it will convey that meaning even if it is activated by a monkey.

He concludes that

What is needed for a symbol to convey meaning is not an intelligent author, but a conventional understanding on the part of the readers or hearers that certain signs or certain sounds represent certain concepts.

He sometimes makes related points more briefly in the context of his judicial opinions, for example:

Legislative history that does not represent the intent of the whole Congress is nonprobative; and legislative history that does represent the intent of the whole Congress is fanciful.

Our opinions using legislative history are often curiously casual, sometimes even careless, in their analysis of what "intent" the legislative history shows. ... Perhaps that is because legislative history is in any event a make weight; the Court really makes up its mind on the basis of other factors. Or perhaps it is simply hard to maintain a rigorously analytical attitude, when the point of departure for the inquiry is the fairyland in which legislative history reflects what was in "the Congress's mind." ...

After recounting the drafting history, the Court states that "nothing in §4010(f)'s text suggests that Congress meant the Federal Reserve Board to function as both regulator and adjudicator in interbank controversies." .... Quite so. The text's the thing. We should therefore ignore drafting history without discussing it, instead of after discussing it.
[Bank One Chicago, N. A. v. Midwest Bank & Trust Co. (94-1175), 516 U.S. 264 (1996)]

His points about legislative history -- that it's undemocratic, unreliable and incoherent -- seem to be reasonable ones, but they don't prevent him from reasoning frequently about the meaning of legal texts in terms of the intentions of those who framed them. For example, in his opinion in Crawford v. Washington, he follows a long and interesting description of the common-law history of the right to confront one's accusers with this conclusion:

This history supports two inferences about the meaning of the Sixth Amendment.

First, the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. ...

The historical record also supports a second proposition: that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts. Rather, the “right … to be confronted with the witnesses against him,” Amdt. 6, is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding. ...

Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of “reliability.” ...

As another example, in California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., he addresses the problem of ERISA's pre-emption section, 29 U.S.C. § 1144(a), which states that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by ERISA, and observes that

Hence the many statements, repeated today, to the effect that the ERISA pre-emption provision has a "broad scope," an "expansive sweep," is "broadly worded," "deliberately expansive," and "conspicuous for its breadth." But applying the "relate to" provision according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else. ... The statutory text provides an illusory test, unless the Court is willing to decree a degree of pre-emption that no sensible person could have intended--which it is not.

In other words, the text of the statute can't possibly meant what it seems to say, or at least what his colleagues on the Supreme Court have taken it to say, because the result would be an interpretation "that no sensible person could have intended". I find this argument compelling, to the extent that I understand it -- but one thing that I definitely understand about it is that it argues for a textual interpretation based on reasoning about communicative intentions.

I could multiply examples -- searching for Scalia at Cornell's Legal Information Institute site returns 2,974 results, and most of them that I've read so far turn up something interesting from this perspective. However, I'll close for now with one other case, John Angus Smith v. United States.

Here's the background. US Code § 924(c)(1) says that

... any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm ... shall... be sentenced to a term of imprisonment of not less than 5 years ... If the firearm possessed by a person convicted of a violation of this subsection ... is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.

Though the story line might have been devised by Elmore Leonard, the narrator in the following passage is Justice Sandra Day O'Connor:

... John Angus Smith and his companion went from Tennessee to Florida to buy cocaine... While in Florida, they met ... Deborah Hoag ... [who] accompanied [Smith] and his friend to her motel room, where they were joined by a drug dealer. While Hoag listened, petitioner and the dealer discussed petitioner's MAC-10 firearm, which had been modified to operate as an automatic. ... The dealer expressed his interest in becoming the owner of a MAC-10, and [Smith] promised that he would discuss selling the gun if his arrangement with another potential buyer fell through.

Unfortunately for [Smith], Hoag had contacts not only with narcotics traffickers but also with law enforcement officials. In fact, she was a confidential informant. ... The [Broward County] Sheriff's Office responded quickly, sending an undercover officer to Hoag's motel room. ... Upon arriving at Hoag's motel room, the undercover officer presented himself to petitioner as a pawnshop dealer. [Smith] ... presented the officer with a proposition: He had an automatic MAC-10 and silencer with which he might be willing to part. Petitioner then pulled the MAC-10 out of a black canvas bag and showed it to the officer. The officer examined the gun and asked petitioner what he wanted for it. Rather than asking for money, however, petitioner asked for drugs. He was willing to trade his MAC-10, he said, for two ounces of cocaine.

In the majority opinion, Justice O'Connor wrote that

Surely petitioner's treatment of his MAC-10 can be described as "use" within the every day meaning of that term. Petitioner "used" his MAC-10 in an attempt to obtain drugs by offering to trade it for cocaine. Webster's defines "to use" as "[t]o convert to one's service" or "to employ." Webster's New International Dictionary of English Language 2806 (2d ed. 1949). ... Indeed, over 100 years ago we gave the word "use" the same gloss, indicating that it means " `to employ' " or " `to derive service from.' " Astor v. Merritt, 111 U.S. 202, 213 (1884). Petitioner's handling of the MAC-10 in this case falls squarely within those definitions. By attempting to trade his MAC-10 for the drugs, he "used" or "employed" it as an item of barter to obtain cocaine; he "derived service" from it because it was going to bring him the very drugs he sought.

Justice Scalia dissented:

In the search for statutory meaning, we give nontechnical words and phrases their ordinary meaning. ... To use an instrumentality ordinarily means to use it for its intended purpose. When someone asks "Do you use a cane?" he is not inquiring whether you have your grandfather's silver handled walking stick on display in the hall; he wants to know whether you walk with a cane. Similarly, to speak of "using a firearm" is to speak of using it for its distinctive purpose, i.e., as a weapon. To be sure, "one can use a firearm in a number of ways," ... including as an article of exchange, just as one can "use" a cane as a hall decoration--but that is not the ordinary meaning of "using" the one or the other. The Court does not appear to grasp the distinction between how a word can be used and how it ordinarily is used. It would, indeed, be "both reasonable and normal to say that petitioner `used' his MAC-10 in his drug trafficking offense by trading it for cocaine." ... It would also be reasonable and normal to say that he "used" it to scratch his head. When one wishes to describe the action of employing the instrument of a firearm for such unusual purposes, "use" is assuredly a verb one could select. But that says nothing about whether the ordinary meaning of the phrase "uses a firearm" embraces such extraordinary employments. It is unquestionably not reasonable and normal, I think, to say simply "do not use firearms" when one means to prohibit selling or scratching with them. [emphasis added]

Scalia's argument, which I find entirely convincing, is perhaps not rigorously enough defined that we can be certain whether its final sentence is an essential part. My own opinion is that the force of the entire paragraph depends implicitly on reasoning about how someone ought to talk as a function of what he or she intends to communicate. In any case, the last sentence expresses such reasoning explicitly, and the goal of the whole passage is to lead us on this basis to a correct understanding of the text of the statute.

[Other relevant posts:

"Scalia on the meaning of meaning" (10/29/2005)
" Legal meaning: the fine print" (11/2/2005)
"Is marriage identical or similar to itself?" (11/2/2005)


Posted by Mark Liberman at December 8, 2005 04:13 PM