The portion of Smith's book I least understand--or most disagree with--is the assertion, upon which a regrettably large portion of the analysis depends, that it is a "basic ontological proposition that persons, not objects, have the property of being able to mean." "Textual meaning," Smith says, "must be identified with the semantic intentions of an author--and . . . without an at least tacit reference to an author we would not have a meaningful text at all, but rather a set of meaningless marks or sounds." "Legal meaning depends on the (semantic) intentions of an author."That, my friends, is an example of a reputation well-deserved. And it gets better. Read the whole thing.
To prove his point, Smith recounts a hypothetical case devised by Paul Campos:While walking in the desert near the border between the United States and Mexico, you come across marks in the sand forming the figures "REAL," and you wonder what these marks mean. Your first step will be to guess whether the marks were made by an English-speaking or Spanish-speaking agent. If you think the marks were made by an English speaker, you probably will interpret them to mean something like "real" in the sense of "actual" or "existing." If you suppose instead that the marks were made by someone speaking Spanish, then you will understand them to mean something like the English term "royal." But if you think the marks were made by no one, and were instead simply the fortuitous effect of wind on the desert sand, then you will not suppose that the marks actually mean anything at all; they are merely a strange accident devoid of meaning.The example is inapt because it assumes a reader of the symbol who functions under two different symbolic conventions, English and Spanish. But when we approach the text of a statute or Constitution, we know what linguistic convention is in play. Try this hypothetical instead: Two persons who speak only English see sculpted in the desert sand the words “LEAVE HERE OR DIE.” It may well be that the words were the fortuitous effect of wind, but the message they convey is clear, and I think our subjects would not gamble on the fortuity.
Tuesday, November 01, 2005
Speaking of the Supreme Court
A book review by Justice Scalia:
Posted by Tom at 8:15 AM