Blog author: jballor
by on Tuesday, July 26, 2005

A week ago Stanley Fish, a law professor at Florida International University, wrote an op-ed in The New York Times about the principles of constitutional interpretation, especially as represented by Justice Antonin Scalia.

Fish takes issue especially with the notion that the text can have meaning “as it exists apart from anyone’s intention.” Fish essentially denies that texts are things that can have meanings in themselves, and it amounts to a philosophical denial of realism.

Part of Fish’s problem is that he sets up a false dichotomy: either you must believe only in meaning as intended by the author of a document, or you must believe in the meaning of the document apart from “anyone’s intention.” In reality the dynamics of interpretation involve a relationship between the two.

Fish’s intentions, I think, are clearly to protect and clarify what the Constitution means, founded on authorial intent. He states, “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.”

Today’s BreakPoint commentary by Mark Earley addresses some of the problems with Fish’s analysis. Earley writes of Fish’s piece, ‘However well this kind of argument does in the academy, it doesn’t fly in the courthouse. As law professor Ann Althouse puts it, Fish’s analogy to a rock formation is “ridiculous, because no one ratified the rock formation.’ No one agreed to be bound by what they thought the rock formation said.”

And this is a key point in the hermeneutics of public or corporate documents, like the US Constitution or a Protestant confession like the Lutheran Augsburg Confession. Meaning is not solely conferred upon the text by the authors. What might be the decisive factor in understanding the meaning of such documents is the view held by those who ratified or affirmed these documents.

Merely because Philip Melanchthon wrote the Augsburg Confession didn’t mean that he could rewrite or amend it later on his own. It’s status as a corporate document meant that he no longer had a monopoly on determining the text’s meaning. The same is true, for example, of the Barmen declaration written by Karl Barth. These are not individual, personal, or private documents. They are public and corporate, and therefore have a meaning that is in some sense independent of the author’s original intent.


  • http://blog.acton.org/index.html?/archives/338-The-School-of-Fish.html Acton Institute PowerBlog

    The recent blogpost by my colleague Jordan Ballor discusses an op-ed written by law professor Stanley Fish. I am more familiar with Stanley Fish from his days as a literary theorist, and perhaps a quick review of a younger Fish will contribute to the con

  • SteveD

    The only genuine meaning of a document/product that is written for public dissemination and use is the meaning intended by the author, unless there is reason to believe the author’s intent was inherently deceptive (e.g., Orson Well’s War of the Worlds broadcasts). We are not like Alice at the Queen’s table, where “words mean whatever I say they mean” even if they aren’t the Queen’s words. Fundamental documents have a fixed, real meaning. Readers can choose to interpret (or MISinterpret) them as they see fit, but that does NOT change the meaning of the original text. The text remains the same. Thomas Jefferson “edited” the Bible to eliminate the supernatural or miraculous, but that did not change the Word of God as delivered by the prophets and disciples; it only gave us one man’s opinions of how he thought they should be interpreted or used. The “Supremes” can publish volumes about what they think the Constitution means, or what they think it should mean, but the clear meaning is there, based upon the language of the drafters and the common usage of terms in their day. “General Welfare” may mean something totally different in post-New Deal America than it meant in 1787, but that does not change the original intent of the Framers to establish that the federal government should only do things to promote the well-being of most/all Americans, and not use federal power/funds to advance the interests of particular sections, vested interests, or ethno-religious groups.

  • http://blog.acton.org Jordan

    SteveD,

    As you could probably guess, I strongly disagree, at least insofar as we are talking about “public” documents. For more, see [url=http://blog.acton.org/index.html?/archives/339-The-Hermeneutical-Spiral.html]“The Hermeneutical Spiral.”[/url]

  • http://blog.acton.org/index.html?/archives/514-The-Post-Edisonian-Double-Eclipse.html Acton Institute PowerBlog

    We’ve discussed textual interpretation a bit on this blog here before (here, here, and here). Paul Ricœur, who is famous for his “attempt to combine phenomenological description with hermeneutic interpretation,” passed away earlier this