The Right Coast

July 19, 2005
Avoid old fish
By Tom Smith

Stanley Fish has an op-ed piece in the NYT about originalism, sort of. Prof. Althouse pokes a hole in it here. As I understand Fish's position more generally, his view is something like, meaning comes from intention and you can't know what intentions are. Maybe his views have changed, but it was roughly that 20 years ago, and last time I checked. So for Fish, intentionalism is just a raft floating on a bottomless ocean of ignorance. This is one of many reasons English professors should not be allowed to practice philosophy without a license. It is reason law schools should hire PhD's in philosophy. If philosophy is going to corrupt law, at least it should be good philosophy.

The idea of objective meaning is pretty standard in contract law and has been since Holmes. You can believe in it without taking a position on what words really mean. This is law, not philosophical semantics. If I promise to pay you Tuesday for a hamburger today, my idiosyncratic subjective meaning for Tuesday (perhaps I don't use the Gregorian calendar! Perhaps I suffer from day of the week reversal! Perhaps I am a complete idiot!) just don't count. Maybe there's even a default rule that says Tuesday means, end of normal business hours Tuesday. You didn't know that? Tough shit. You will next time. It doesn't take a lot of imagination to see why contracts should be interpreted according to what the reasonable person would take the words in them to mean.

I think the significance of ratifying constitutional language comes from the fact that the Constitution had to communicate something from the Framers to the ratifiers (not to mention among the framers themselves, and not to mention subsequent generations). You can imagine other uses for language, but if the idea is to use it to get agreement on terms, as in a contract, or in a constitution, then taking it to mean what it communicates, seems pretty fair and reasonable. Of course, if you are an anti-liberal (as in anti- consent of the governed and all that) such as Fish seems to be, that's far too straightforward. Interpretation has to lead you into some inescapable quagmire from which only authority can extract you. So my guess is that's why Fish favors intention--because he thinks it leads to a paradox. Meaning must be intention, but it is unknowable, oh well, I guess you all will have to do as I say now. Thank goodness English graduate students don't make very good storm troopers. I think he's really more of a Hobbes fan or even an Augustine (compel them to come in) sort of guy, without the God part, of course. Very creepy stuff. Imagine Straussianism, but instead of a cult of the ancient philosophers and various Leo Strauss whisperers, your cult is around a mish mash of has been European lit crits and the Fish himself. Yuk-o-rama. And we're all supposed to be so dazzled by it that we can't see that it's a load of insincere, third-rate amateur philosophy pretending to be the latest and the deepest. He reminds me of the Grand Inquisitor (but the grandeur is pretty faded) or, better, that evil Jesuit in The Magic Mountain.