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Tuesday, July 19, 2005

Finding Out The Intent Is The Only Way To Read

Stanley Fish in the NYT discusses Constitutional interpretation in "Intentional Neglect". He holds that pursuit of the author's intent in words is the only means of preceiving the meaning of something. Justices who refuse to pursue and follow the intent of the legislators are not "interpreting" the law. they are "rewriting" it.

He writes:

Rewriting is what is being done by those who talk about the "living Constitution" and ask, "Why should we be constrained by the dead hand of the past?" This makes no more sense than asking, "Why should we be constrained by wills and contracts?"

The answer is that without that constraint handed down by the past, law and predictability disappear and are replaced by irresponsibility and the exercise of power. If you can just make it up when interpreting the Constitution, you can also make it up when deciding whether or not to honor your contractual obligations, and so can everyone around you. In fact, if your question is "What do I want it to mean" rather than "What did they mean by it?" you can dispense with "it" and "them" entirely and just go right to the fashioning of the meaning you prefer.

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.

As someone who drafts and analyzes contracts professionally, the idea is to state in the clearest way what the intent of the parties are. Where there is an ambiguity, the hope is the arbiter will pursue and discern the intent. Otherwise, there is no coherence to the document and parties cannot go forward in good faith.

That must be the goal of our judiciary.

Says Fish:

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 have said it and have heard others say it as well: When people have laid down their lives in battle for the US it was in order to protect our Constitution. If so, then the so-called "activist judiciary" has done a disservice to our defenders.

1 Comments:

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