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Dynamic Interpretation of Canonical Legal Rules

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With all due respect, these positions are hopelessly confused. To show why, we need to disaggregate three different things: what the meaning of
a statute or other canonical legal text is – the ontological question; what things should one look to in order best to discover the meaning of the
statute or other canonical text – the epistemological question; and what one should do in response to the meaning of the statute or other canonical
text once one has discovered that meaning – the authority question.
Suppose one agrees with us that, as an ontological matter, a statute means whatever was the intended meaning of the legislature that the
statute was enacted to transmit. Obviously then, of all the items on the lists of the proponents of dynamic statutory interpretation, only
legislatively intended meaning pertains to the meaning of the statute and, indeed, is synonymous with it. On the other hand, legislative purposes
and the text qua utterance meaning would be material evidence of that statutory meaning. The history of the statute’s applications might be weak
evidence as well, insofar as it reveals what other interpreters thought the statute’s intended meaning was. On the other hand, the consequences
of the statute and whether those consequences offended currently held to be true values would not bear on the meaning of the statute at all,
neither ontologically nor epistemologically. They could bear on its legal authority, however, if there are higher-order legal rules or standards that
refer to such values and constrain the legislators whose text is at issue. And the history of the statute might bear on its authority as well, either
through the doctrine of precedent or through reliance, again if there are higher-order rules or standards that so dictate.
What is surely not a possibility, however, is that a statute could onto- logically consist of such combinations of factors. Some of these factors
are factual matters, and some are normative. Some are about facts at one historical moment, and some are about facts at different histori-
cal moments. If the dynamic-interpretation approach is ontological – if it purports to tell us what statutes are – then why is not the meta-
physical mixing of facts about one time, facts about another, and moral norms as incomprehensible as asking someone to mix pi, green, the
categorical imperative, and the Civil War? Dynamic statutory interpre- tation, were it a real possibility, would most definitely involve a spe-
cial form of reasoning not employed outside the law. It is not a real possibility, however.

III. Other Nonstarters

For the sake of completeness we should mention some other views that are thought to be competitors of intentionalism in the interpretation
of canonical legal rules. Much of what we say about them here has already been said or has been clearly prefigured in this and the two
preceding chapters.
Some theorists of legal interpretation suggest that the meaning of a canonical legal text is not the meaning intended by its authors but is rather
the meaning that would be attributed to it by some members of the public at the time of its enactment – its original public meaning. On one
construction, this view is really a version of the form of nonalgorithmic textualism that employs the construct of the idealized reader. We argued
that the notion of the idealized reader, if it at all differs from giving canonical legal texts the meanings we determine their authors to have
intended, is to that extent indeterminate.
On another construction, this view is really a version of the form of nonalgorithmic textualism we called “textualism as rule-of-law-restricted
intentionalism.” That view is just intentionalism with certain types of evidence of intent deemed inadmissible. One might argue that “original
public meaning” interpretation is just intentionalism, but with evidence of intention that would not be generally accessible to the public at the time
of enactment ruled out of bounds by a legal rule of higher authority than the one being interpreted. That is a cogent notion of legal interpretation;
but because it is intentionalist in nature, it is not special to law and legal reasoning.
One statement of original public meaning is that given by Larry Solum, to wit, “the meaning that i the drafters of the text would have
reasonably expected ii the audience to whom the text is addressed iii to attribute to the drafters iv based on the evidence public record
that was publicly available at the time the text was promulgated.”
Lawrence B. Solum, Pluralism and Public Legal Reason, 15 William Mary Bill of Rts. J. 7, 15 2006.
reference to public availability suggests a concern with secret or inacces- sible evidence of authorial intended meaning. But, in our opinion, this
is a red herring. The text’s authors want their audience to take as the intended meaning the meaning they the authors intend. If we say “X”
and intend that our audience take us to have intended A thereby, then the meaning of our utterance just is A. It would make no sense for us
to claim to have intended a secret meaning B when we anticipated our audience would take us to have intended A.
Moreover, given that authors want their audiences to have the uptake the authors intend, authors will be quite cognizant of the circumstances
of and evidence available to the audience. And the audience will in turn be striving to understand the authors’
intended meaning, which is what the authors want, which is why there is no danger of a “secret” intended meaning or even of its possibility. The
authors and their audience have complementary goals – the authors to convey their intended meaning, the audience to infer it.
If there is space for a difference between the original intended meaning and the original public meaning, therefore, it must be because of the
possibility that the original public might attribute an intended meaning to the authors that was not the actual intended meaning. The proponent
of original public meaning over authorially intended meaning must argue that where the original public is in error, that error should nonetheless
be controlling.
Schematically, assume the authors’ intended meaning is X, but the public misunderstands it to be Y. We would say the meaning is X. The
proponent of original public meaning would say it is Y. But why go with Y? The argument cannot be based on “fair notice.” We are not
dealing with a criminal trial or some other upset-of-expectations case. Those fairness issues can be handled without letting the original public’s
mistaken interpretation be controlling.
Moreover, not only does fairness not militate in favor of Y, neither does proper deference to the original public. After all, the public itself
was trying to get at the authors’ intended meaning X and would regret that it misunderstood it to be Y.
We have been assuming that the entire public would have interpreted the authors’ intended meaning differently from how those seeking autho-
rially intended meaning would interpret it. But that is hardly conceivable.

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