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Argument Three: Meaning Cannot Be Autonomous from Intent – One Must Always Identify an Author

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NONINTENTIONALIST INTERPRETATION
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without authors and intended meanings are not texts; and texts with intended meanings are texts only with respect to the intended meanings.
22

4. Argument Four: Texts Can Have “Deviant” Meanings Because Those Meanings Are Intended


How did “cat” come to mean jazz musician? Because it was used by some people with the intent that it be understood as referring to a
jazz musician. That is ultimately how all words acquire their meanings. And the word “cat” meant jazz musician the very first time it was used
with such an intention, even before it was listed as a definition in the dictionary. Similarly, if a speaker says “Gleeg, gleeg, gleeg,” it means
what the speaker intended it to mean, even if to others it sounds like nonsense.
23
And if your mom is Mrs. Malaprop, and she asks you to make sure the “autobahn” is pulled next to the sofa when she comes to visit
you – and you know that she intends for you to move the “ottoman” – then if you are a dutiful child, you will pull up the ottoman and not
attempt to relocate a German highway.
24
“Strategery” has entered into common use at least in some circles as a synonym for “strategy.” It
acquired that meaning as soon as Will Farrell of Saturday Night Live so used it; and it continues to have that meaning because President Bush,
his political aides, and the public continue so to use it.
22
Put a different way, texts are individuated by their intended meanings. Consider the word “cats” that we cut out of a magazine article on “The Big Cats of Africa” and paste it into
our ode to tabbies. In the magazine article, those marks meant one thing – lions, leopards, and cheetahs – because that is what the article’s author meant by them. In our poem,
those identical marks mean something else because that is what we intend by them. The marks themselves contribute to two different texts, distinguished by two different authorial
intentions. They are capable of bearing an infinite number of meanings, just as an infinite number of marks, sounds, or other forms of conduct are capable of referring to lions or to
tabbies.
By contrast, the shape of the marks in the Constitution found in the National Archives varies from the shape of the marks in the Constitution found in most casebooks or indeed
the Spanish translation of the U.S. Constitution. Yet we take these various marks to mean the same thing because we assume the same authors with the same intention.
23
“Gleeg, gleeg, gleeg” is the attempt at a reductio that textualists throw up at intentionalists. The problem is that it is not reductio. “Gleeg, gleeg, gleeg” can be as meaningful as the
third-base coach’s pulling on his cap with the successful intent to convey the idea “Bunt”
24
Is Mrs. Malaprop misspeaking in English, or is she speaking “Malapropenglish”? Is slang that has yet to be validated by the Oxford English Dictionary “English” or something else?
We cannot see that this is answerable in any way other than by arbitrary stipulation. What we can say is that it does not matter insofar as we are trying to discern what Ms. Malaprop
means by “autobahn.”
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REASONING FROM CANONICAL LEGAL TEXTS
B
.
IMPURE TEXTUALISM AND THE CONSTRUCTION OF RULES BY

INTERPRETERS
” 1. The Algorithmic Textualist
When confronted with the conceptual impossibility of pure, intention- free textualism, textualists usually retreat to a less pure position. They
admit that we must refer to authorial intentions to determine that the marks we are supposed to interpret do in fact constitute a text – an attempt
by some rational being or beings to convey a meaningful proposition to others. And they go further and admit that we must refer to authorial
intent to determine in what language the text is written or spoken.
25
At this point, however, the textualists claim that we should jettison the search for the speaker’s intended meaning and rely solely on the textual
utterance meaning.
So how would a textualist interpret a canonical legal text? After she ascertains that it is in, say, English, she would have recourse solely to
dictionaries and books that set forth proper grammar, punctuation, and usage. Those, she argues, tell us what the utterance – the text – means,
not what its authors intended to mean by the text. And the text is “the law.”
25
Walter Sinnott-Armstrong, although not taking sides in the intentionalism-textualism debate, does argue that once we know what language a text’s author was intending to
use, we can dispense with authorial intent and employ word meanings in that language. See Walter Sinnott-Armstrong, Word Meaning in Legal Interpretation, 42 San Diego L. Rev.
465, 471–77 2005. We think, however, that leaving aside the normative issues and prob- lems of ambiguity, incorrect grammar, and the like, the position Sinnott-Armstrong gestures
toward rests on an oversimplification. Only in unusual cases – say, when a speaker is in a foreign country and must choose between speaking in the local language or in his native
tongue – does a speaker or author intend a language. In the usual case, he just intends to say something. And as we pointed out, the line between a language spoken incorrectly and an
idiolect spoken correctly will be arbitrary. See note 24 supra. That we can draw such a line for particular purposes – as, say, when we examine students on their French – does not refute
the point.
Consider this stylized case. Frankie, an American, encounters a stranger, Johnny, in Tan- zania. Frankie, believing Johnny to be a speaker of Swahili, decides to ask Johnny in Swahili
for directions to Arusha. Unfortunately, Frankie’s Swahili is terrible. She believes that the proper question in Swahili is, “Wich w¯a t¯u Arusha?” Actually, in Swahili that means “I want
to flee Arusha.” But Johnny, who in fact speaks English, takes her to be asking for directions to Arusha, which was, of course, Frankie’s intended meaning. Johnny has in fact understood
Frankie perfectly. If, realizing she is attempting to speak Swahili, he tells her what she would have been requesting had she been a competent Swahili speaker, he is being perverse.

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