Academic journal article Washington and Lee Law Review

Text as Tool: Why We Read the Law

Academic journal article Washington and Lee Law Review

Text as Tool: Why We Read the Law

Article excerpt

I. Introduction

A.

Suppose I fill a balloon with helium and release it. This helium balloon has a diameter. Indeed, it has to have a diameter and would not be a helium balloon without one.

But what is its diameter?

As the balloon ascends and the helium expands, the diameter continuously changes. Yet while the balloon can thus have an infinite number of diameters, it cannot have just any diameter. The diameter is limited at the short end by the degree to which the helium can be compressed within the balloon and at the long end by the elasticity of the balloon's surface. The balloon rises; the diameter grows larger; but at some point the balloon will burst.

Now here is a question that, unfortunately, will be recognized as philosophical: Have I just described one helium balloon with a changing diameter, or is the balloon a different balloon at every moment that its diameter changes?

I say "unfortunately" because this is the kind of question that gives philosophy a bad name.

B.

The perennial debate over the significance of authorial intent in the interpretation of legal texts has taken a new and interesting turn. A decade ago, two English professors, Steven Knapp and Walter Benn Michaels, originated an account of textual meaning that holds, not that appeal to authorial intent is the preferable way, among various ways, of interpreting texts, but that it is the only way of interpreting texts.(1) Indeed, interpretation can be nothing more or less than the determination of authorial intent because "the meaning of a text is simply identical to the author's intended meaning."(2)

This account has recently found its way into the legal literature, partly through the efforts of Knapp and Michaels, themselves,(3) and also through the essays of Paul Campos.(4) The implication of Knapp and Michaels's arguments for legal interpretation can be simply stated: The meaning of an appellate decision, a statute, or a constitutional provision is necessarily the meaning intended by the authors--the judge, the legislators, or the framers, respectively.(5)

Now, intentionalism is nothing new in law. There is a long history of legal scholars from Joseph Story(6) to Raoul Berger(7) who insist, for example, that the meaning of a constitutional text is just the meaning intended by the framers and that "[t]o 'interpret' [a particular provision] in diametrical opposition to that intention is to rewrite the Constitution."(8) Moreover, Hans Baade has recently identified intentionalism as the dominant, albeit controversial, judicial approach to statutory interpretation.(9)

The issues for debate within this tradition are conceptual (e.g., what it means for a group of individuals--framers, for instance--to have authorial intentions), empirical(e.g., whose intentions the text in question represents), and methodological (e.g., how best to identify what the author's actual intentions were).(10) But the tradition is unified by the basic intentionalist principle: Textual meaning is identical to the author's intended meaning.(11)

Knapp, Michaels, and Campos take pains to point out that this principle does not resolve the conceptual, empirical, and methodological debates. To say, for instance, that the meaning of a statute is the meaning intended by the legislators does not tell us whether the best way of identifying that meaning is to focus on the plain meaning of the text, to analyze carefully the official legislative reports, or to read the personal diaries and letters of the legislators.(12) The basic point is that, if one is truly trying to interpret the statute, then one is necessarily trying to determine the meaning intended by the legislators, however one does that.

What makes the writings of Knapp and Michaels particularly important is that they provide arguments from another discipline--literary theory--to support a principle that has been heretofore largely dogmatically assumed by some legal theorists. …

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