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 conversation.
Fish is known for, among other things, an idea of literary interpretation he called ‘interpretive communities’ that suggests meaning is not found in the author, nor in the reader, but in the community in which the text is received. His famous illustration of this theory is as follows: He once left a list of names of literary theorists on the board of his classroom, told the class it was a medieval poem, and asked them to interpret it. Of course the duped and eager students developed a wide array of convincing interpretations, thus illustrating the power of the interpretive community.
So you can image my mild surprise when I read Fish endorsing ‘authorial intent’ in opposition to what in literary circles is known best as Formalism, the idea that “the text itself” contains the meaning. Of course, the modernist and post-modernist theorists have shared a strong aversion to “the text itself” theories. But I think it is a mistake to suggest that simply because the Mods and Postmods attacked both Formalism and Realism, anyone who attacks Literary Formalism is attacking Realism. There are other theories and theorists who would not (properly speaking) align themselves with staunchly relativistic theories and yet would take issue with Formalism (a phenomenologist such as Wolfgang Iser I think would be one of them.)
How does this relate to the larger question of Constitutional Interpretation? To deny ‘textualism’ is not necessarily to suggest that meaning is subjective in the author, the reader, or the interpretive community. Denying textualism is not necessarily to deny objective reality. One can question textualism and maintain absolutism. What allows for this is the fact that all language, especially in a publicly crafted document like our Constitution, is in some sense ‘corporate’ (the etymological connection between ‘communication’ and ‘communion’ speaks volumes on this point, I think).
As far as we humans are concerned, there is always an element of mystery in language, in the Word. To my knowledge, there is only one who can express an icon of meaning so perfectly as to unite the Utterance with its Reality. All (human) language is at best an attempt at meaning, a part of meaning, and never the last word.