--- Doug Henwood <dhenwood at panix.com> wrote:
> andie nachgeborenen wrote:
>
> >You see why Judge Easterbrook and I love
> textualism?
> >It makes life, or anyway law, _so_ much easier.
> . . . The law is the
> >text enacted or (here)ratified by the authoritative
> >bodies. If it is clear, you enforce/obey it, or
> try
> >to change it by whatever means. You don't have to
> >worry about what was in people's heads.
>
> Man, I hate to sound French, but do you think the
> meaning of a text
> is so clear, stable, and universally shared? People
> have been
> breaking their heads over the text of the second
> amendment for a long
> time, and generally interpret it to mean what they
> want it to mean.
One doesn't even have to be French to play those games. I cut my teeth in grad school on Quine and Davidson, so I am intimately familiar with the indeterminacy of meaning and the opacity of reference.
These are fun games to play in the academy. Quine and Davidson and for all I know Derrida and DeMan, raise hard questions thata re extremely difficult to answer, and impossible to answer in a way that will satisfy everyone.
However, I am with Rorty, who agrees with Q & D about meaning (which I do not), and likes Derrida DeMan and Heidegger -- and thinks that politics and law should absolutely NOT NOT NOT be based on anything so contentious and deep as theses in the philosophy of language. This is one of the great insights he gets from Rawls, who wanted in his later work to base his theory of justice on political lowest common denominators rather than deep philosophical theses about which there could never be agreement.
OK, leaving the name dropping aside, there ia a range of unclarity in law. I am intimitelt familiar with the practical difficulties of interpretation of legal texts, statutes and constitutional provisions, thsi is what I do for a living. My experience is that in many cases, probably most cases, even if the interpretation is hard to arrive at, there is a right interpretation.
In one case I was working on recently, the issue arose of whether a certain filing was a "third party complaint" under the Fed. R. Civ. P. Well, the language of R. 14 isn't transparent, but it does require that the claim be a claim for indemnification, basically A has to be suing a third party C, who will bi liable to A if A is libale to B. Typically C is an insurer. The point is, this wasn't a 3rd Party complaint, it was a counterclaim, but the lawyers involved struggled heroically to make a case that it a 3rd party action. And they will lose on this issue, and they should lose. There is a fact of the matter about whether something is a 3PC, once you have done with smoke and mirrors.
On the other end there is something like the equal protection clause -- no person shall be denied the equal protection of the laws by any state. Or the die process clause, like with due process of law. Or the 1A: Congress shall making no law abidging the freedom of speech. That language is open-textured. It can be interpreted, quite plausible, in lots of ways. It's not evident that there is a right answer about whar it means. Reasonable minds can differ. Reasonable minds cannot differ about whethera complaint not involving indemnification is a 3PC.
The 2A is in the middle, but I think it is leaning towards the first sort, the one about which the meaning is pretty obvious. Take the principle that the you read the whole thing together, you ask, why are they talking about well regulated militia and the security of a free state? How does that relate to the right to bear arms? Even if the language suggests that you are supposed to be able to grab your gun offthe mantlepiece and run down to the militia grounds if the Indians or the British show up, it also suggests that the context in which the right to have the gun over the mantlepiece exusts is collective defense in a militia of the security of a free state. I am not really up on the literature about the 2A, but it seems to me that this reading is _so_ obvious that anything that comes out otherwise is just cleverness for the sake of tenure or politics.
I should say that I am not a really strong gun-control advocate as a mater of policy -- not that I wouldn't necessarily be one if we were to start with a blank slate, but we're not starting with a blank slate. Given the political reality on the ground, I think gun control is probably a lost battle, and I'd be willing to cede most of the ground the NRA wantsw if we got something in return. (Not as far as assault weapons goes, though.)
So my reading is not driven by policy. It's just the language of the 2A. Anything else just seems tortured and implausible to me. And in a world where we don't want philosophy of language about which people cannot agree to infect legal interpreattion, that should settle it.
In addition there's the 70 years of authoritative precedent -- that counts for a lot. Precedents can be overturned, but you need a pretty good reason. With Brown we had a pretty good reason. The text was open textured and segregation was evil. With this, what's the great reason? The text is prety clear the other way, and even if gun ownership is not evil, which I grant on balance it's not (though I think that as far as handgoes goes it's stupid in most cases), even if I'd be willing to say, OK, go cuddle your Glock, see if I care as a mater of policy, there is no string moral or political imperative that would overcome the combination of fairly clear language and uterly undeviating precedent based on a 2A case.
I am not, as I have said impressed by arguments about original intent - whether from Justice Scalia or Dan Lazare. Who cares what they meant, if what they said is clear?
So that's what I think.
jks
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