Calvin Johnson has a post entitled What does Quentin Skinner (Words are Deeds) Mean? Here's a taste:
"Original intent" or "motive" is commonly used to refer to non-binding motives. Only the meaning of the authors of the Constitution are binding on us, but not their motives or their intents. Jed Rubenfeld, Revolution By Judiciary (2005) uses intent as the part of the Founder's statements that are not binding on us. Sometime motive refers to the private, off the deal intents that do not get incorporated into the meaning.
I am not very fond of the terminology. An author has an intent in writing. To strip the author's intent from the words leaves the words as random. I understand that a contract draftsman can be bound by things he said as the other party understands them even if that is not what the draftsman meant or intended to say. Still what the author meant or intended to say is a perfectly sound basis of what words mean.
One of my favotire topics. Is Johnson right? Is it the case that "To strip the author's intent from the words leaves the words as random"? One way to get at this question is via Paul Grice’s distinction between speaker’s meaning and sentence meaning.
Grice’s idea of speaker’s meaning is actually quite familiar. We get at the idea of speakers meaning all the time in ordinary conversations: “What did he mean by that?” In the context of legal texts, we ask questions like: “What did the legislature mean by the provision?” “What did the judge mean by that sentence in the opinion?” “What did the framer’s mean by that clause in the Constitution?”
Grice contended that speaker’s meaning, in turn, can be analyzed in terms of a speaker’s (or author’s) intentions. And so far, Grice and Johnson are in agreement.
Grice's point about speaker's meaning and intentions is illustrated by the following thought experiment:
Imagine that you have stopped at an intersection at night. The driver of another car flashes his lights at you, and you make the inference the reason for her doing this is that she wants to cause you to believe that you lights are not on. And based on this inference, you now do, in fact, realize that your lights are not on.
In this example, the meaning of the flashing lights is the product of the following complex intention—as explicated by Richard Grandy and Richard Warner:
1) The driver flashes his lights intending
2) that you believe that your lights are not on;
3) that you recognize her intention (1);
4) that this recognition be part of your reason for believing that your lights are not on.
In the case of imperatives, the intention is that the audience (or reader) perform a certain act on the basis of the reader’s recognition of the author’s intention that the reader perform the act. When Johnson asserted--To strip the author's intent from the words leaves the words as random--he was thinking about what Grice calls speaker's meaning.
But this is where it gets interesting. Because Grice differentiates "speaker's meaning" from "sentence meaning." What is sentence meaning? In its simplest (and perhaps simplified) form, the idea is that words and expressions have standard meanings—the meanings that is conventional given relevant linguistic practices.
There is an obvious parallelism between Grice’s discussion of speakers meaning and sentence meaning and contemporary debates in constitutional theory. In that debate, a distinction is drawn between two forms of originalism—“original meaning originalism” and “original intentions originalism.”
In the case of a constitution, speaker’s meaning (or author’s meaning) can be redescribed as “framer’s meaning.” Framer’s meaning depends on what the framer’s intended, given what they knew about contemporary ratifiers and interpreter’s knowledge of their intentions.
Likewise, “sentence meaning” can be redescribed as “clause meaning.” Clause meaning is the meaning that would be assigned to a clause, on the assumption that the clause was written with the knowledge that it would be ratified and interpreted by readers who would have very limited access to information about the framing and who would be under normative pressure to disregard any information wasn’t universally accessible. The meaning of the Constitution is best understood as the clause meaning of its provisions. But this does not entail that history and evidence about original meaning is not relevant to the process of constitutional interpretation.
Clause meaning is not ahistorical or acontextual. Linguistic conventions change over time. Words and phrases that once had one public meaning may come, over time, to acquire another. Of course, in the case of the Constitution, the Constitution itself acts as a check on this process. That’s because the Constitution is itself public, widely available, and central to our legal culture. Constitutional usages are likely to be preserved, simply because they are repeated, studied, quoted, and interpreted--processes that provide a great deal of historical continuity. But in those cases in which the original public meaning of the Constitution has been swept away by a shift in the linguistic (or political) winds, the clause meaning is the “sentence meaning” that would have been assigned at the time the constitution was ratified and not the sentence meaning that we would assign based on contemporary linguistic practices.
What does this mean for Johnson's assertion--To strip the author's intent from the words leaves the words as random? That assertion is based on an erroneous assumption--that all meaning is speaker's meaning--or in the case of a constitution, that all constitutional meaning is framer's meaning. That's false. Framer's meaning can be distinguished from clause meaning. And constitutions (including the United States Constitution) should be interpreted in accord with their clause meaning, not framer's meaning, But that's another argument.