JUDGE ALITO WILL BE REVIEWING THE CLIFF NOTES VERSION (via Robert Schwartz):

Law & Language: a review of Law’s Quandary By Steven D. Smith (Antonin Scalia, First Things)

The portion of Smith’s book I least understand—or most disagree with—is the assertion, upon which a regrettably large portion of the analysis depends, that it is a “basic ontological proposition that persons, not objects, have the property of being able to mean.” “Textual meaning,” Smith says, “must be identified with the semantic intentions of an author—and . . . without an at least tacit reference to an author we would not have a meaningful text at all, but rather a set of meaningless marks or sounds.” “Legal meaning depends on the (semantic) intentions of an author.”

To prove his point, Smith recounts a hypothetical case devised by Paul Campos:

While walking in the desert near the border between the United States and Mexico, you come across marks in the sand forming the figures “REAL,” and you wonder what these marks mean. Your first step will be to guess whether the marks were made by an English-speaking or Spanish-speaking agent. If you think the marks were made by an English speaker, you probably will interpret them to mean something like “real” in the sense of “actual” or “existing.” If you suppose instead that the marks were made by someone speaking Spanish, then you will understand them to mean something like the English term “royal.” But if you think the marks were made by no one, and were instead simply the fortuitous effect of wind on the desert sand, then you will not suppose that the marks actually mean anything at all; they are merely a strange accident devoid of meaning.

The example is inapt because it assumes a reader of the symbol who functions under two different symbolic conventions, English and Spanish. But when we approach the text of a statute or Constitution, we know what linguistic convention is in play. Try this hypothetical instead: Two persons who speak only English see sculpted in the desert sand the words “LEAVE HERE OR DIE.” It may well be that the words were the fortuitous effect of wind, but the message they convey is clear, and I think our subjects would not gamble on the fortuity.

Smith confuses, it seems to me, the question whether words convey a concept from one intelligent mind to another (communication) with the question whether words produce a concept in the person who reads or hears them (meaning). The bridegroom who says “I do,” intending by that expression to mean “I do not,” has not succeeded in communicating his intent; but what he has said unquestionably means that he consents to marriage. As my desert example demonstrates, symbols (such as words) can convey meaning even if there is no intelligent author at all. If the ringing of an alarm bell has been established, in a particular building, as the conventional signal that the building must be evacuated, it will convey that meaning even if it is activated by a monkey. And to a society in which the conventional means of communication is sixteenth-century English, The Merchant of Venice will be The Merchant of Venice even if it has been typed accidentally by a thousand monkeys randomly striking keys.

Smith claims his assertion that “legal meaning depends on the (semantic) intentions of an author” is “a modest and commonsensical claim.” It strikes me as an extravagant and nonsensical one. That is why Humpty Dumpty’s statement of the claim (“When I use a word it means just what I choose it to mean—neither more nor less”) has always been regarded—by all except Carroll’s game-playing Logicians—as hilarious nonsense. Alice and I believe that words, like other conventional symbols, do convey meaning, an objective meaning, regardless of what their author “intends” them to mean—unless, of course, the text announces that it is departing from conventional meaning (“black shall mean white”).

What is needed for a symbol to convey meaning is not an intelligent author, but a conventional understanding on the part of the readers or hearers that certain signs or certain sounds represent certain concepts. In the case of legal texts, we do not always know the authors, and when we do the authors are often numerous and may intend to attach various meanings to their composite handiwork. But we know when and where the words were promulgated, and thus we can ordinarily tell without the slightest difficulty what they meant to those who read or heard them.

Of course, even if I could persuade Steven Smith that words do have meaning apart from their author, he would still reject textualism—for the same reason that he rejects the positing of a hypothetical author who is “the normal speaker of English”: Merely giving English words their normal meaning would not enable law to perform its “more ambitious functions,” such as “establishing social policy.”

But in a democracy, it is not the function of law to establish any more social policy than what is fairly expressed by legislation, enacted through prescribed democratic procedures. It troubles Smith, but does not at all trouble me—in fact, it pleases me—that giving the words of the Constitution their normal meaning would “expel from the domain of legal issues . . . most of the constitutional disputes that capture our attention,” such as “Can a macho military educational institution dedicated to what is euphemistically called the ‘adversative’ method admit only men? Is there a right to abortion? Or to the assistance of a physician in ending one’s life?” If we should read English as English, Smith bemoans, “these questions would seemingly all have received the same answer: ‘No law on that one.’”

That is precisely the answer they should have received: The federal Constitution says nothing on these subjects, which are therefore left to be governed by state law. Smith’s response is revealing: “We have not been content with this sort of modesty in our law.” The antecedent of the pronoun is unspecified, but I fancy it refers to the legal academic community which establishes the permissible boundaries for Smith’s thinking, or at least his writing. Many Americans outside that community yearn for this sort of modesty.