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Norms of Form Norms Constraining Intended Meanings as Antidotes to the Foregoing Infelicities

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INFELICITIES OF THE INTENDED MEANING
179
counts as a “vote” by a legislator to enact a rule, which “vote” not only signifies that the voting rule maker’s intention will be counted but also
marks the moment in time at which the relevant intention must exist. One who votes aye when the roll is called is counted as in favor of the
proposed bill for purposes of determining whether the bill has become law, even if she is subjectively opposed to the bill, and even if, moreover,
she believes aye means “opposed.”
Notice that in the case of the rule maker who votes aye thinking it means no, if that person provides the necessary vote for passage, the law
is deemed to have been passed even though a majority of the rule makers intended that it not pass. In such a case, the law is not what the majority
of the rule makers determined ought to be done. When the law comes to be applied, what does it “mean”?
We could have a norm that provided that in the case just described, the law means what the rule makers voting in favor intended to mean by
it, except that for the person mistakenly voting aye, the law means merely what she thought it would mean if passed. She herself did not intend that
meaning because she did not intend for the law to exist as law.
We need some such procedural norm because we have a gap to bridge: the gap between what the majority of rule makers determined ought
to be done – nothing – and what our norm regarding voting provides is the case, namely, that a law was passed. If we say that because of the
mistaken and pivotal aye vote a law was passed but it has no applications, we undermine the norm regarding what counts as aye and no votes. And
without that norm, there will be continued uncertainty regarding what laws exist, an uncertainty that undermines the rule-of-law value of the
knowability or accessibility of the law.
It is a short step from familiar procedural norms about voting to some similar but perhaps less obvious procedural norms. Consider the
following procedural norms that might constrain the rule makers’ deter- minations. 1 All texts shall be interpreted as if they were written in
the standard English of the date of enactment, with respect both to the meanings of the words used and to grammar and punctuation.
10
2 All
10
That the monkeys’ marks resemble marks made by writers in English makes no difference. Is the flagpole outside my office the letter I? And suppose there were a language Shmenglish
that resembled English in every way, except that the nouns and verbs were switched around,
180
REASONING FROM CANONICAL LEGAL TEXTS
texts more than one hundred years old shall be deemed of no legal effect or, more limitedly, of no legal effect if the standard English meanings of
any of the text’s words have changed in the hundred-year period.
Norm 1 reflects the rule-of-law value of legal accessibility. It bars authoring legal texts in the rule makers’ private code or in a different
language from the populace. It thus prevents recondite law. We discuss norms such as norm 1 more fully in the next chapter when we consider
textualism as a theory of legal interpretation.
Norm 2 reflects the same value – that recovering rule makers’ inten- tions becomes more and more difficult as the moment of enactment
so that “dog” meant a domestic animal that meows, and “cat” meant a domestic animal that barks, “whale” meant an ink-squirting mollusk, “harpoon” meant a rapid-firing gun,
“walk” meant to move on one’s legs as quickly as possible, and so forth. Would we be able to interpret the monkeys’ novel in such a case? Because they had no linguistic intentions,
how can we decide in which of the infinite possible languages that could employ such marks their “novel” was typed? In this connection, consider the following column by Dave Barry
in the San Diego Union, Dec. 4, 1993: “Meanwhile, out in Pinedale, Wyo. we have a situation involving artists painting on cows. You may have heard about this. Three artists got
a 4,000 grant, some of which came from the federal government, to paint words from a pioneer woman’s diaries on the sides of live cows. I am not making this up. The idea was
that the cows, with the words on their sides, would wander around and poop on symbolic representations of U.S. taxpayers.
“No, seriously, the idea, as explained by one of the artists, was that the wandering cows would scramble the words so as to ‘create a new text.’ I think this is a terrific idea, and I
believe the government should seriously consider using wandering painted cows to generate the instructions for filling out federal tax forms. I bet the cows would do a MUCH better job
than whoever is doing this now my guess is hamsters.” For a good sampling of the literature in support of the general proposition that texts qua
texts mean only what their authors intend them to mean, see Steven Knapp and Walter Benn Michaels, Not a Matter of Interpretation, 42 San Diego L. Rev. 651 2005; Steven Knapp and
Walter Benn Michaels, Intention, Identity, and the Constitution: A Response to David Hoy, in Legal Hermeneutics: History, Theory, and Practice 187–99 Gregory Leyh, ed., Berkeley:
University of California Press 1992; Richard S. Kay, Original Intentions, Standard Meanings, and the Legal Character of the Constitution, 6 Const. Comment. 39, 40–5 1989; E. D. Hirsch Jr.,
Counterfactuals in Interpretation, in Interpreting Law and Literature: A Hermeneutic Reader 55– 68, 57 Sanford Levinson and Steven Mailloux, eds., Evanston, Ill.: Northwestern University
Press 1988; Steven Knapp and Walter Benn Michaels, Against Theory 2: Hermeneutics and Deconstruction, 14 Critical Inquiry 49, 54, 60 1987; E. D. Hirsch Jr., Against Theory, 8 Critical
Inquiry 723, 725–30 1982; Walter Benn Michaels, The Fate of the Constitution, 61 Tex. L. Rev. 765, 774 1992. Even Stanley Fish, usually associated with the “reader response theory” of
interpretation, which minimizes the role of the author and her intentions – see, e.g., Robin West, The Aspirational Constitution, 88 Nw. U. Law Rev. 241, 257–58 1993 – has actually
endorsed the centrality of authorial intention to interpretation. See Stanley Fish, There Is No Textualist Position, 42 San Diego L. Rev. 629 2005; Stanley Fish, Play of Surfaces: Theory and
the Law, in Legal Hermeneutics, supra, at 297–316, 299–300.
INFELICITIES OF THE INTENDED MEANING
181
recedes further and further into the past. With norm 1 in existence, norm 2 is perhaps less important but surely not unnecessary, especially
if modified as indicated in parenthesis.
Norms 1 and 2 should be contrasted to proposals that might appear to be similar. For example, some have proposed that statutes be
given the meaning their words would standardly carry if authored at the time of interpretation or application.
11
One impetus behind such a proposal is to make law’s meaning even more accessible than it would
be under norm 1, although there are also substantive concerns about policy obsolescence that underlie that proposal. This form of “updating”
of statutes, however, has a markedly different effect from norm 1 on the rule makers’ ability to carry out their role. Norm 1 forces rule makers
to consult the dictionaries and grammars of their time in order to max- imize their ability to effectuate their determination of what ought to be
done. The “updating” proposal, on the other hand, reduces their control to that of selecting the language English and the marks but then leaves
the translation of their determination to the fortuity of subsequent changes in the language.
12
Calabresi has proposed that statutes be declared of no legal effect when they become “obsolete.”
13
Unlike norm 2, Calabresi’s proposal is not motivated primarily by rule-of-law concerns but rather is based
on substantive policy considerations. Calabresi’s test of statutory obso- lescence is not one of mere age or even obscurity of meaning but is
rather one of substantive consistency with more modern statutes and judicial decisions.
14
Norms 1 and 2 are purely procedural norms that attempt to recon- cile the role of rule makers – to determine what ought to be done – with
the rule-of-law value of legal accessibility. Norm 2 effects the recon- ciliation by restricting the temporal scope of the rule makers’ authority.
Norm 1 effects the reconciliation more or less well depending on the
11
See Larry Alexander, Of Two Minds about Law and Minds, 88 Mich. L. Rev. 2444 1990; T. Alexander Aleinkoff, Updating Statutory Interpretation, 87 Mich. L. Rev. 20 1988.
12
Query: do we have criteria for distinguishing when a language has undergone a change from when a new language has supplanted it? See Anthony Dardis, How the Radically Interpreted
Make Mistakes, 33 Dialogue 415, 420–21 1994.
13
Guido Calabresi, A Common Law for the Age of Statutes 2 Cambridge Mass.: Harvard University Press 1995.
14
Id. at 2, 129–31.
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REASONING FROM CANONICAL LEGAL TEXTS
rule makers’ skill in drafting so as to communicate their determinations accurately according to the grammar and diction of the time. Where the
reconciliation is imperfect – where the rule makers fail to draft so that their determinations are conveyed in standard English – the law will not
be what they determined ought to be done. Rather, the law will be a product of their determination regarding marks or sounds and the inde-
pendent process of codifying standard English meanings and grammar. It will be to some degree “mindless,” in that the codification of meanings
and grammar will not be a reflection of anyone’s determination of what ought to be done in the world beyond dictionaries and grammar books.
Unlike the “updating” proposal,
15
however, norm 1 does not deprive rule makers of control over effectuating their determinations. It demands
linguistic skills but not linguistic prescience.

2. Norms for Failed Law


The procedural norms in this category are somewhat different from the norms of form in that, instead of addressing the problem of how to
make the rule makers’ determinations more accessible, they address the problem of what to do when the rule makers appear to have determined
an issue but actually have not. Such cases of failed law, as we call them, are phenomena associated with multimember legislative bodies, though
they occur as well in other multimember rule-making bodies, such as administrative boards, appellate courts, and constitutional ratifiers. They
occur when the rule makers individually intend different applications and thus mean different things, despite having agreed on the language of their
legislative text. In other words, norms for failed law deal with the problem of conflicting intentions within a multimember rule-making body.
When the general legislative norm is that rule makers’ determinations have the force of law only if a majority or supermajority of the rule mak-
ers concur, and members of the apparent majority have made different and potentially conflicting determinations regarding what ought to be
done despite having agreed on the words of a text, then it is possible that there is no majority determination having the force of law. Multimember
legislative bodies have no intentions regarding what ought to be done.
15
See Aleinkoff, supra note 11, at 13.
INFELICITIES OF THE INTENDED MEANING
183
Or, put differently, the only intentions such bodies have consistent with the role that rule makers are supposed to play are some aggregation of the
individual intentions of the members. Aggregation of individual inten- tions is not a problem if a majority has identical intentions. Where those
intentions come apart, however, the passage of a law may be illusory in this sense: despite the appearance of legislative majority agreement that
there be such a law, every possible intended meaning of that law would have been opposed by a majority of the legislative body. Put differently,
no majority determined any possible meaning for the law.
A norm of form such as one that irrebuttably assumes that all laws are intended to mean what they mean in the standard English of the date of
enactment can save some laws from the failure to command a majority of consistent individual intentions. Such norms will not handle all cases,
however, for even standard English will leave open the possibility of ambiguity. And in such instances, by application of Arrow’s theorem,
16
we face the possibility of majorities in favor of a law and its language but against all possible meanings of that language.
Consider this stylized representative case. Rule makers A, B, and C vote on term T. T is vague and can mean W, X, and Y or W, X, and Z. A
votes aye, intending W, X, and Y. B votes aye, intending W, X, and Z. C votes no. A would have voted no had he been presented with B’s definition
as his only choice. B would have voted no had he been presented with A’s definition as his only choice. Moreover, a truncated version of T, one that
covered only W and X and neither Y nor Z, would likewise have been rejected. It is clear in this case that we have no majority of the authorities
in favor of any possible meaning of T, even though we have a majority in favor of T itself.
17
16
See Kenneth J. Arrow, Social Choice and Individual Values 2d ed., New Haven: Yale University Press 1963. Arrow established that democratic procedures for determining policy cannot
avoid the possibility of the following dilemma. When the policy choices are A, B, and C, and the voters are V
1
, V
2
, and V
3
, it is possible for V
1
and V
2
to favor A over B; it is possible for V
2
and V
3
to favor B over C; and it is possible for V
1
and V
3
to favor C over A. Id. at 2–3. In such a situation, majority rule produces indeterminate results. Id. at 3, 51–59. Every
policy a majority favors can be trumped by another policy favored by a different majority in an endless cycle. Unless restrictions are placed on the voters’ agenda, extra weight is given
to some voters’ votes, or some other objectionable constraints are placed on the voters, this possibility of endless cycling is unavoidable. Id. at 22–31.
17
See Kenneth A. Shepsle, Congress Is a “They,” Not an “It”: Legislative Intent as an Oxymoron, 12 Int. Rev. Law Econ. 239 1992.

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