Telepathic law.

• Author: Alexander, Larry
• Position: Constitutional interpretation

The debate between originalists (of the authorially-intended-meaning variety) and their opponents usually has two strands. One strand has to do with what interpreting a text is. Originalists like me--a group that includes Paul Campos, (1) Stanley Fish, (2) Steven Knapp, (3) Walter Benn Michaels, (4) and Sai Prakash (5)--argue that when one is interpreting a text, as opposed to doing other things with it, one is necessarily seeking its author's or authors' intended meaning. After all, a text is just a code, a set of symbols--sounds, marks, flags, puffs of smoke, pictures, etc.--selected by an author to convey an idea to a specific audience. No set of symbols self-declares the code that it is. It may look like twenty-first century American English as prescribed by Merriam-Webster and Strunk & White. But it may be a different code. It may be Esperanto, or it may be a code in French keyed to a certain American novel. It may be nineteenth century South African English, or Australian English. It may be a Martian language that perhaps uses the spaces between the marks as its letters. Or it may not be a code at all, but marks made by wind and rain, a leaky pen, or monkeys on typewriters. All of these are logical possibilities. For originalists like me, however, one can only successfully interpret a text by determining what code it is, which itself is determined by authorial intent. An author or authors can be more or less skilled at making clear to his or their intended audience what code is being used. For if the audience doesn't know what code is being used, the uptake intended by the author will fail to occur.

The originalist (of my stripe) derives from this point a corollary: If you derive any meaning from a text other than the authorially-intended one, you are not interpreting that text. Rather, you are imagining it to be a different text. You are imagining it either to have been written by authors other than its actual authors, or to have been written in a different context (with different concerns and goals) from its actual context, or to have been employing a code other than the code actually employed. You can "interpret" The Waste Land by imagining its author to have been e. e. cummings or Eminem and not T. S.

Eliot. You can imagine "Meet me at the bank" to have been uttered by a fly fisherman rather than a banker. And you can imagine the Equal Protection Clause to have been written by Ronald Dworkin, John Rawls, William O. Douglas, or Anthony Kennedy rather than by the post-Civil War Congress. All that is possible, but it is not interpretation. It is re-authoring, appropriating someone else's symbols for one's own purposes, like the kidnapper who cuts out the letters for his ransom note from a magazine.

At this point the opponents of originalism usually respond with a loud "Sez who?" Who are we originalists to legislate the meaning of "meaning" or "interpretation"? You can call what we nonoriginalists do with texts non-interpretation or reauthoring, but we call it interpretation, and you have no authority to dictate that we are misusing the term.

At this point the debate between originalists and their opponents stalemates. The strand concerning what interpreting a text really is has run its course, and the nonoriginalists have remained unmoved. They have demurred to the originalists' claim that to interpret a text just is to ascertain its authorially-intended meaning, and that other approaches amount to reauthorings rather than interpretations.

Originalists regarding legal texts may then switch to a different strand of the debate. They may argue that the reason we should seek the actual authors' intended meaning is that the actual authors possessed the legal authority to promulgate norms, and their texts just are their communications of the norms they intended to promulgate. If we ignore their intended meanings in favor of any of the infinite possible meanings someone else might have intended through this set of symbols, then we are ignoring the legal norms promulgated by those with legal authority in favor of norms promulgated by persons who lack that authority. If, for example, Congress has the legal authority to make federal statutory law, then to ignore the congressionally-intended meaning of a federal statute in favor of a meaning that was not congressionally intended is to construct a federal law that lacks constitutional authorization. So, too, if the ratifiers of the Constitution and its amendments are the persons with authority to make and change constitutional norms, then to "interpret" the Constitution as if it had been authored by someone other than its ratifiers is to make constitutional "law" without authority to do so.

What do nonoriginalists say in response to this argument, an argument advanced by Rick Kay, (6) Steve Smith, (7) and me? (8) They typically do not deny that Congress is the body authorized to make federal statutes, or that the ratifiers are persons with authority to make and amend the Constitution. Rather, they concede this, but then go on to argue that the authority to make statutory or constitutional law is the authority to make the texts--the set of symbols--but not the authority to determine what those symbols mean.

Now, to repeat a point made earlier, it is true that the text-the symbols--of statutes and the Constitution could have been used to convey all sorts of meanings other than those authorially-intended. And it may well be true that frequently the symbols lawmaking...