Objects of interpretation.

AuthorEkins, Richard
PositionResponse to Cass R. Sunstein, Constitutional Commentary, vol. 30, p. 193, 2015
  1. INTRODUCTION

    What is the object of interpretation? The question is ambiguous. The object may be either that which falls to be interpreted or the point of interpretation. This Article maintains that the central object of constitutional interpretation is the Constitution, which is an intentional lawmaking act rather than a text floating free in the world, and that the point of such interpretation is primarily to understand the meaning that those who made the Constitution intended to convey by promulgating the text in question. (1) I take as my foil Cass Sunstein's recent argument, in these pages, that there is nothing that interpretation just is. (2) His argument aims to demonstrate that all the familiar, established approaches to constitutional interpretation--originalist and non-originalist alike--are consistent with the idea of interpretation and that judges are free to choose whichever approach they think will have the best consequences in their time and place. I contend, on the contrary, that Sunstein misunderstands the way that intention works in language use in general and that the various alternatives to intentionalism that he outlines each fail. His idea of interpretation is empty and the radical interpretive choice for which he argues is ruled out by the nature of the Constitution. The final part of the Article considers the various ways in which one might understand the Constitution as an object requiring interpretation and outlines the significance that this understanding has for interpretive practice.

  2. INTENTION AND ORDINARY LANGUAGE USE

    While the balance of Sunstein's article considers other approaches to interpretation, including public meaning originalism and various forms of non-originalism, the argument that interpretation centers on intentions is his main target. He outlines the argument thus: "[c]onsider one view: In interpreting the meaning of words, we ask about authorial intentions ... That is what it means to interpret words." (3) This is a problematic way of framing the alternatives. The object of interpretation in ordinary communication is not to interpret words but to interpret language use, which is to say some person's rational act of uttering some words in some context for some reasons. (4) Sunstein's stress on words, as opposed to utterances or communicative acts, is confirmed when he goes on to say that "[i]t is true that in ordinary life, we tend to interpret words in this way." (5)

    Having outlined an example of ordinary communication, where one friend asks another to "meet [me] at [my] favorite restaurant," Sunstein goes on to say: "It might even be consistent with ordinary usage to say that in ordinary conversational settings, interpretation of other people's words amounts to an effort to elicit their intentions." (6)

    One must ask: ordinary usage of what? The answer is the term "interpretation" itself. Sunstein here and throughout the article aims to outline ways of using the term "interpretation" rather than explaining what interpretation is or should be. (7) This strategy makes him a hostage to the breadth of linguistic usage rather than a student of the idea he aims to explore and the limits of which he intends to trace. Sunstein might reply that the very title of his article disavows any idea that interpretation has a constant nature, but this reply is problematic in two ways. First, the article does outline a theory about the nature of interpretation, but a thin theory that arbitrarily takes as controlling the various ways in which the term is used by language users. Second, the stress on the fact of ordinary usage obscures the reasons why "interpretation" should be understood in this way. (8)

    While conceding that intention (often, usually) has priority in interpreting ordinary language use, Sunstein's concern is to avoid the conclusion that this is fundamental to language use in general. He says: "Let us suppose that in ordinary conversation, most people understand the idea of interpretation to involve a search for authorial intentions. Even in that context, such an understanding is not mandatory; we could imagine the view that interpretation involves a search for public meaning, rather than authorial intentions." (9)

    One can imagine the view, but is it plausible? Is it a view that one should adopt? The quoted passage ends in a footnote which says that "such an approach would make conversation work less well," referring to science fiction characters who act in this way with unfortunate (but humorous) results. (10) The footnote refutes Sunstein's argument: the humor works because the characters misinterpret the utterances of others, failing to understand other persons, missing the meanings they intend to convey.

    Sunstein says that we ask about intentions in interpreting ordinary conversation "for a pragmatic reason; the goal of the particular communication will not be met if we do not." (11) Relatedly, "[i]f interpretation entails that practice [of asking about intentions], it is because in the relevant context, that is the best way to understand the term." (12) This invocation of the goal of a particular communication is striking. Persons have goals; communications do not. The confusion here is to take the communication to exist as an object apart from the people who communicate--apart from the speaker who aims to convey some meaning to her hearer, who in turn aims to infer the intended meaning in question. However, communication succeeds only if the speaker makes clear the meaning she intends to convey, that is, only if the audience recognizes that this is the meaning she intends to convey. Conformity to ordinary usage aside, it is not clear what Sunstein thinks makes an understanding of "interpretation" the best in some context or other. Language use consists in one person's attempt to convey an intended meaning by uttering some words in some context, which meaning other persons should try to recognize. (13) The speaker's intended meaning is the intelligible object of the hearer's process of inference, such that there is good reason to term these inferences "interpretations" and to withhold the label from other modes of engagement with the speaker's choice of words. One may perform a function on her choice of words, say pretending that it is written in code by an imaginary speaker, but in so doing one is ignoring the reality of the language use as such.

    The main part of the article, as I say, aims in effect to establish that neither inferring intended meaning nor any other established course of judicial action is required or proscribed by the idea of interpretation itself. In this part of the article, Sunstein aims to establish that even outside the law intentions only matter sometimes. (14) He argues that when a supervisor tells an employee what to do, the employee should ordinarily ask what his supervisor meant. (15) However, "even subordinates sometimes ask about something other than speaker's intentions; everything depends on the role of the subordinate, some of whom might have a different or less deferential role." (16) When would it ever be intelligible for an employee to ask about something other than what his supervisor meant? Sunstein does not say, but his stress on the role of the subordinate is telling, for he implies that some "subordinates" should be free to depart from what they have been instructed, should be free to remake the instruction into a more pleasing form. But this is to confuse understanding another person's communicative act with the question of whether, and if so how far, one should conform to its injunctive content.

    For my part, I can see why the employee should think about more than what the supervisor in fact meant to convey. The employee might consider what the supervisor plans to achieve by the instruction--the intentions that explain the intended meaning--or how some third party is likely to understand the supervisor, whether his supervisor in turn, or a union official, or a tribunal or court in subsequent legal action. But these alternatives are not really alternatives, for they all track inferences, whether one's own or someone else's, about what the language user (the supervisor) in fact intended. For Sunstein to say that "everything depends on the role of the subordinate" (17) is to make clear that he understands interpretation to be detachable from the act of language use--the supervisor's act, not the employee's--which falls to be understood. But this detachment is to give up on understanding and instead to license a subsequent act of language use--the nominal interpreter's--which takes advantage of the words uttered by some other.

    The mistake here is again to conceive of communication as an object apart from a communicator. The reason for the mistake is that Sunstein runs together the question about what the supervisor's instruction means with the question of what employees should do. It may be that an employee may or should refuse to do as instructed, whether because the instruction is unlawful or unreasonable or simply inconvenient, but this is a course of action that follows after one interprets (which is to say, understands) the instruction, which requires one to understand what the supervisor is trying to convey. There are of course reasons why an employee might prefer to frame a refusal to obey as an interpretation of the supervisor's instruction ("I thought you meant X!"), but the standing possibility of deliberate (even if reasonable) misinterpretation hardly changes what it is to interpret. (This analysis is all consistent, I should add, with employees reasonably taking for granted that supervisors are likely to issue lawful, reasonable instructions.)

    Sunstein anticipates an objection to his argument that intention is central in ordinary communication but that this centrality is limited and turns on particular reasons, which do not hold in other contexts. (18) The objection is that meaning turns on...

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