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.