Fish, points out that unless one divines an intent to communicate, you can not even be sure that marks on paper are writing. Moreover, he argues, "even then you are not home free", since even if you know that what you are looking at is an attempt to communicate, the language does not speak for itself. To understand it, you have to divine what the writer was trying to say. Inevitably, therefore, Fish argues, any effort to decode a writing involves a search for the writer's intention.
This much is actually a bit of a red herring, since Scalia would not disagree. Scalia's basic philosophy is not "textualism" so much as it is "originalism." That is, he believes that the effort to "interpret" any legal document" begins (and ends) with the intentions of the drafters. The language the drafters actually used is the starting point for this inquiry, and in extreme cases the extreme, the language used may even trump intention. For instance, if a statute says you shall pay 10% of your income in taxes, the court will not "interpret" this to require you to pay 20% even if there is clear evidence that this was what the drafters actually "meant." But, most cases that reach the Supreme Court do not involve an obvious conflict between what is said and what is meant. Rather, the language used gives rise to uncertainty about what was meant: e.g. what does "due process of law" mean as applied to the particular case now before us? In these sorts of cases, Scalia would agree with Fish that "interpreting the Constitution - as opposed to rewriting it - . . . necessarily [is limited to] trying to figure out what the framers had in mind. Intentionalism is not a style of interpretation, it is another name for interpretation itself. "
In short, according to Fish, the world breaks down into only two camps: those who would "interpret" the Constitution -- a process confined to determining the intent of the drafters -- and those who would"re-write" the Constitution -- a process that allows one to give the words a "meaning" that they did not have for the people who wrote it.
As a purely logical matter, this dichotomy is pretty hard to dispute. But it is also pretty hard to find any use for it.
Let's accept the dichotomy. Let's also assume, as do Scalia -- and perhaps Fish, although this is less clear -- that "interpretation" as defined by Fish is "good" and "proper" but "re-writing" is not. Where does that leave is in, say, trying to decide whether capital punishment is or is not "cruel and unusual" under the Eighth Amendment? An originalist would argue that since capital punishment was prevalent at the time the Bill of Rights was adopted, the Framers could not have considered it to be either cruel or unusual. Thus, to declare it to be cruel or unusual today would be to "re-write" the Constitution.
But it isn't that easy.
One of the most powerful ways to divine the intention of a drafter is to compare the language he did use to the language he could have used but did not. In the case of the 8th Amendment, the drafters could have provided a list of banned punishments. But, they didn't do that. They chose instead to articulate a broad and manifestly vague principle they had to know at the time would be subject to differing interpretations. So, any effort to divine their "intent" on this issue has to consider the question of why they intentionally opted for ambiguity.
There are two possibilities. First, it may be that they themselves could not reach a sufficient concensus on what was and was not "cruel and unusual" to allow for ratification. So, they compromised by adopting a general principle with which all could agree and left it to the Courts to figure out how that principle applied in particular cases. Second, it may be that they intended the Constitution to be a "living document," one that could be adapted over time, by the Courts, to accommodate changing circumstances and societal values without the need for an actual Amendment. If either of these possibilities is actually the case, then it is the advocates of the "living constitution," rather than Scalia and his apostles, who are actually being true to the original intent.
Fish summarizes his argument thusly:
And that is why the only coherent answer to the question "What does the Constitution mean?" is that the Constitution means what its authors intended it to mean. The alternative answers just don't work: the Constitution can't mean what the text alone says because there is no text alone; and it can't mean what present-day society needs and wants it to mean because any meaning arrived at under that imperative will not be the Constitution's.I pretty much agree with this up to the very last clause: "it can't mean what present-day society needs and wants it to mean because any meaning arrived at under that imperative will not be the Constitution's. Excuse me, but isn't that simply an ipse dixit? Doesn't it ignore the possibility that the "imperative" of the drafters was to create a fundamental document that could and would evolve?
Both Fish and Scalia argue that accepting an evolutionary approach to Constitutional interpretation will end up making the Constitution mean whatever a majority of the nine justices believe it should mean at a given point in time. Hasn't that, in fact, always been the case? And why is that a assumed to be a "bad" thing? And, most important for present purposes, why is that assumed to be contrary to the "intention" of the drafters?
For more on this last set of question, see this earlier post:"On Judicial Acitivism".
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