On Fish And Originalism

One strange thing about Stanley Fish’s defense of an originalism based on discovering the intentions of the author is that most defenders of originalism see the obvious fallacy involved. In addition to Scalia, who Fish mentions, even Robert Bork’s notoriously flimsy defense of originalism understands that “[t]he requirement that the judge know what the specific intention of the lawgiver was regarding the case at hand would destroy all law.” (TTOA, 162) In addition to the philosophical problems Matt notes is the additional problem that when it comes to law there is no meaningful individual “intent” because statutes and constitutional provisions have multiple authors, and hence multiple subjective intentions. Indeed, many of the most interesting problems of statutory and constitutional interpretation arise because ambiguity is useful in generating the support necessary to ratify them; different actors can assume that they mean different things. As Bork and Scalia realize, if you define originalism in this way, then originalism fails as a grand theory before you even get out of the starting blocks.

This also explains why Fish can go in this direction, since he is quite open about the fact that originalism completely fails to produce anything resembling determinate results. And Fish is also right, of course, that Scalia and Bork’s textualist originalism–while passing one obvious killer objection–also completely fails to produce determinate results. To talk about deriving determinate meanings from broad and/or ambiguous texts ultimately runs into all the same problems that the cruder form of originalism has. This can be easily seen by looking at originalist defenses of Brown v. Board. It’s not strictly accurate to say that you can’t come up a plausible originalist defense of Brown, but you can do so only by defining legal principles at such a high level of abstraction that anybody can call themselves an “originalist,” and this then leads you to Dworkin’s point that choosing among the multiple level of abstraction at which constitutional principles can be read is something for which “originalism” provides no help, permitting the “originalist” judge to make arbitrary choices that are congenial to the outcome she desires. And even in cases in which originalism would seem to produce a fairly compelling result, in practice its purported adherents generally feel free to set it aside. But I don’t think Fish’s move backward solves any of these problems, and it remains unclear why the point of interpretive work “will always and necessarily be the specification of intention.”