"I related case concerns typos."

You're a funny guy, Matthew Yglesias.

I know precisely zero about philosophy, but doesn't "intentionality" mean something different from what's being discussed here?

"That's not true at all.  There is a whole body of law devoted to what is termed the "parol evidence rule"

Isn't actually resorting to the law to win the argument kinda, sorta cheating?

I defer to someone who's actually been to law school.  I can only play a lawyer on TV.

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And on topics that really matter, the Shareef acquisition means the Nets might actually be in a position to challenge this year...

Abdur-Rahim don't like it.  Rockin' the Casbah.

Fish's article is the kind of thing that gives bullshit a bad name.  In addition to Matt's good example of unintended meanings, authors can also have intentions that are NOT intended to become part of the readable meaning of the document.  Lies, propaganda, etc.  Laws are not immune to these kinds of disguised intent.

Isn't actually resorting to the law to win the argument kinda, sorta cheating?

Not really, since I obviously hardly remember what the parol evidence rule is anyway.  (I hate when you forget things you used to know like the back of your hand... Hrmph.)

Anyway, I'm not counting my Shareef before I see him on the podium between Thorn and Kidd holding a #3 (#33?) Nets jersey.

Gee, this discussion is academic in the extreme.  Isn't anyone interested in discussing what Fish is trying to say about the Constitution?

I don't know that much about Fish other than that he's one of the stars of Postmodernism in academia and an occasional contributor to the Times Op-Ed.  His analysis of Kerry's verbal style from before the election was right on the mark.  However, my bone to pick with this article is his intolerance for ambiguity, intentional or otherwise.  By his reading, the great literature of the world can be read only according to the authors' original intent.  Clearly, works that last in the culture take on meaning far beyond what what was intented at the time of writing.  Fish himself would be out of work if limits were placed on the interpretation of literature.

In the case of the Constitution, the question of intent becomes murkier still.  First, the document represents many compromises among a disparate group of founding fathers.  So who's intent are we seeking to gauge when interpreting the Constitution?  Must we learn who wrote each individual sentence?

Second, I believe much in the Constitution is intentionally left open to interpretation.  The drafters did not set out to produce a clear, unambiguous document.  Their goal was to build a nation out of conflicting opinions and interests and to create a document that could hold it together.  So far, it has survived the shifting beliefs and concerns of the population.  This could not have been achieved through rigidity.

Third, it seems to me that original intent is a sort of fetish.  Why would we constrain our evolving society to the idiosyncracies of individuals born nearly 300 years ago?  Don't get me wrong, they did a great job, but they did so by bequeathing us a framework with enough structural strength to withstand constant interpretation.

Al, I was beginning to think you got hit by a bus or something.

OMG, a bus? It's been so long I thought it was that he enrolled in the "Fitness Protection Program", LMAO!!

If I recall correctly, in Is There a Text in this Class (1980), Fish argued that an author’s intended meaning is not the sole meaning of a text; rather, meanings are ascribed to a text by its readers.  Interpretation is a creative act, not a passive reception of the author’s meaning.  This does not mean, however, that texts cannot have stable meanings.  Because groups of people share ways of reading texts, interpretations of a text are constrained by the norms shared by communities of interpreters.

This strikes me as a useful theory of interpretation to apply to constitutional law, because it allows a justice to take into account not only the framers’ original intentions, but also the ways in which the Constitution was understood by the voters who ratified it, as well as the last two centuries of judicial interpretation.  In this op-ed, Fish seems to revert to the old idea that a text means simply what its author intended.  Can anyone familiar with Fish’s work help me out here?  Has he moved away from his reader response theory?

Also, Matthew, could link to any of the criticisms of Fish to which you allude?  Thank you.

Well, it's nice to know I've been missed!  Maybe I shuoldn't post this, but I find this blog less fun than the old yglesias.typepad.com (even though that halfway sorta survives).  I don't know why.  Is it just me?  Sigh.

I'm more familiar with Fish's literary criticism than his legal theory, but a better general statement of Fish's interpretative model is that while intentions precede texts, they can't be derived from them. He's certainly not a standard reader-response critic, but he's also certainly not a Wimsatt & Beardsley

That's to say, authors have intentions and those intentions produce texts, but the texts themselves are not a container of intentions. Instead, 'intention' is a function of interpretation, but deriving intention from the interpretative process is itself extra-textual, and thus open to argument and revision, since 'any conclusion you reach about the intention behind a text can always be challenged by someone else who marshals different evidence for an alternative intention.' That's because the evidence for intention found outside the text itself is found... in other texts. Interpretation is thus a contingent process, both textually and socially. It's about reaching consensus on where and when to stop interpreting.

It matters what was the understood meaning by each signer [of the Constitution].  epistemology

But since the people of the thirteen states gave up/transferred some part of their sovereignty to the Federal government, wouldn't we need to know how "they" understood the meaning of what they were doing -- or at least how their elected representatives in the several state legislatures understood it?

I posted some hastily written thoughts on Fish's Op-Ed here.

In general, I would agree that in formulating a persuasive interpretation some thought should be given to how the text in question was produced.  But Fish's position that interpretation is by definition about intent is not defensible.

Like I said earlier, the example of the rock conflates two points. Point one says "it makes no sense to interpret something that wasn't intentionally produced as language" and point two says "all interpretation is about intent." If Fish had used as an example a novel or a poem the fallacy of his argument would become more apparent. His rock example is just a clever way to paper over his superficial analysis.

If I recall correctly, in Is There a Text in this Class (1980), Fish argued that an author’s intended meaning is not the sole meaning of a text; rather, meanings are ascribed to a text by its readers.  Interpretation is a creative act, not a passive reception of the author’s meaning.  This does not mean, however, that texts cannot have stable meanings.  Because groups of people share ways of reading texts, interpretations of a text are constrained by the norms shared by communities of interpreters.

Yes, Fish actually does say both these things. One, that interpretation must always be about author's intent. Two, that how we decide what an author's intent is will depend on what reading community we pertain to. Now, that's not much of a methodology, is it? Postmodernism means never having to take a position.Having defined a dogmatic approach to the interpretation of texts he can then backtrack from having to follow through on this approach since any claim of "author intent" is as valid as the next one since all interpretations are relative to the positon of the interpreter.

All very clever, but sad to see it being applied to a debate on how constitutional law should be established.

http://plato.stanford.edu/entries/law-interpretivist/

"Interpretivist Theories of Law" at Stanford

http://plato.stanford.edu/entries/legal-reas-interpret/

"Interpretation and Coherence in Legal Reasoning"

"Fiss' view is criticised by Stanley Fish (1989), who contends that Fiss' ‘disciplining rules’ would themselves require interpretation in order for judges to know what they mean and require of them, and hence cannot supply constraints upon judicial interpretation. Fish's contention that all potential candidates which might constrain interpretation are themselves susceptible to being interpreted in a variety of ways results in his claiming that texts or originals cannot constrain judges at all in the way in which is commonly supposed, as texts do not have meanings in advance of particular interpretations of them. This seemingly radical indeterminacy is deceptive, however, for although Fish removes the constraints on interpretation provided by legal texts or supplementary norms of the judicial profession, he replaces them with the conditioning and training processes of ‘interpretive communities’, which ensure that, ‘...readers are already and always thinking within the norms, standards, criteria of evidence, purposes and goals of a shared enterprise’, such that, ‘the meanings available to them have been preselected by their professional training.’ (Fish 1989, 133)."

The paragraph appears relevant, but contradictory?

As for "six' versus "sex" that example does not in any way undermine Fish's theories of interpretation.

It is true that if you wrote "I went to the store and bought sex toys." and you wrote nothing else, we would still be able to render an interpretation and the statement would have meaning for us. But that's not because the words themselves outside of context contain that meaning. It's because there is a perfectly reasonable context in which to read such a thing and have it make sense and seem like your intention. We won't have interpreted your message correctly because it will have a mistake in it that obscures your intention rather than reveal it. (And you would have nobody but yourself to blame for that.)  But, there's a good chance that if the sentence before it read something like "To prepare for my niece's 3rd birthday, I remembered how disappointed I use to be to receive only 1 toy." Then "I went to the store and bought sex toys" may in fact still be interpreted correctly as images of dildos and vibrators wouldn't make much sense, but 6 as opposed to 1 would. We may have to give it a longer look--and a nod to Freud no doubt--but the mistake may be uncovered.

The point is that it is still the context that allows the meaning. There is no, as you say, "meaning of the sentence" outside of context. Even if we had nothing else to go on that is helpful to us as intepreters, we would simply and naturally assume a context that allows the statement to make sense. But a context will be applied nonetheless. The fact that we would all arrive at the same understanding--using the same context--isn't a magical inherent feature of the sentence, it's owing to the fact that there are no competing theories (that I can think of) that would cloud the issue in a simple sentence like that one. The truth emerges out of the consensus, not the shapes of the letters or the definitions of the words. It is a matter of context, evidence and argument.

With respect, I think you're missing the point. He's not offering a methodology for interpretation, he's offering a definition, one that rules out some of the cliches and metaphors some typically use to try and gain rhetorical advantage:"strict construction" and claiming my interpretation takes into account the author(s)'s intent and yours does not (an impossibility, since interpretations always are attempts to understand the author(s)'s intent.

And yes, that means that there can and will be competing visions of that intent, and for that matter competing visions of who should count as an author. And we will settle them the way we always settle disagreements of interpretation--not by an "everyone's equally valid" approach Fish would never ever say that--but through argument and evidence and earnest persuasion.

Obviously, after seeing "help" and realizing it was a coincidentally-shaped erosion, you'd not bother trying to "help" the rock, as no help is being requested.  But if someone asked what you saw on the rock, you'd most likely say "The word 'help'."  Moreover, whenever you'd think about that rock, you'd probably think of it as "The rock with the word 'help' on it."

Although the process of communication requires an attempt to interpret intended meanings, the process of living in a world full of diverse stimuli requires classifying things in ways that have meaning in our own minds.

Each of us, from the Chief Justice to the village idiot, brings a unique personal perception of how government works and the laws that define it.   Originalism attempts to ignore this perception and textualism attempts to obscure it, but while the intentions of the legislators and the consensus understanding of the words may inform our perceptions, so do our desires for a particular outcome.

Al,<p>It is good to have you around. You are right, IMO, that it is less fun, but I am hopeful that is a temporary thing until they get the kinks worked out here, implement a few other things and then settle in a little bit. The commenting module here, while somewhat interesting is not 'right' yet -- it is a combination of poor layout (the Josh Marshall narrow center column special), weird nesting, and bizarrely off-the-beaten-path formatting scheme. It should get better, but the key part is the community, so if you can stick around until it does, that would help more than anything.

While I have frequently expressed my  awe at    analytic philosophers's ability to confuse issues and delay their resolution indefinitely, when I do this I  in no way mean to denigrate or minimize the powers of literary critics and post-modernists in this regard.

The analytic Brian Leiter recently made a post so obnoxious  that I was forced to defend the odious David Brooks for the first (and hopefully the last)time in my life.

Leiter vs. Brooks

Matt must know a little something about Emerson Hall and Hilary Putnam. His Brains in a Vat is a seminal article in philosophy of mind--something to read and enjoy:

http://www.uwichill.edu.bb/bnccde/ph29a/putnam.html