The lawmaker's intended meaning as the goal of legal interpretation

Less extreme, more everyday examples show that legal interpretation's proper focus is on the lawmaker's intended meaning. In Nix v. Hedden,^[15] the US Supreme Court had to decide if a tax on vegetables applied to tomatoes. As a matter of botany, a tomato is a fruit. Nonetheless, the Court held that the lawmakers did not intend the botanical meaning of vegetable but rather its culinary meaning, which includes tomatoes. And more recently, in Smith v. US,^[16] the Court had to decide whether one who uses a gun as an item of barter in acquiring cocaine ‘uses... a firearm' ‘during [a] drug trafficking crime'. The majority held that he does, whereas the dissent held that ‘uses... a firearm' means uses a firearm as a weapon. The debate between the majority and the dissent was over which meaning of ‘uses... a firearm' was intended by Congress.

Our point here is that just as we do with requests from our parents and children in our daily life, when we wish to interpret a legally authorita­tive communication - a statute, an administrative rule, a judicial rule or order - we must ask: what meaning did the speakers intend to convey in these communications? As in life, interpretation in law is a search for speaker's meaning (Fish 2005). It is so because we have invested those speakers - the legislature, the administrators, the courts - with the authority to determine what norms should govern us; and it is the meaning they intend that constitutes the norms they have chosen (see Alexander 2013). Seeking their intended meanings is authority preserving.

At this point we anticipate an objection. Have we not unjustifiably elevated speaker's meaning over utterance meaning? The distinction between speaker's meaning and utterance meaning is this: speaker's meaning is the meaning a speaker intends to convey through words or other symbols (for example, hands and fingers, flags, smoke, facial expressions, pictures, and so on) on a particular occasion and in a particular context; utterance meaning is what those words or symbols conventionally mean in various grammatical and syntactical contexts but apart from any particular occasion of their use (Grice 1991). Your aunt intended ottoman when she said autobahn, but ottoman is not what autobahn means (Grice 1991). Dictionaries tell us that. And the objection we are considering is that we are begging the question when we insist that proper interpretation of legal rules turns on the intended meaning of the rules' promulgators rather than on the utterance mean­ing of their words.

This objection is easily answered. Utterance meaning is wholly deriva­tive of speaker's meaning. Utterance meaning is merely a report of what most speakers mean by certain marks or sounds at a particular time and in a particular geographical area. When enough speakers use a particular sign to convey a certain meaning, the dictionaries will report this by giving that meaning as the definition of that sign.

Speakers often mean something different from the utterance meaning. They may be ignorant of the utterance meaning - your aunt believ­ing autobahn means a footstool, for example. Or they may be ironic. (Often, if enough speakers use a word ironically, as with using ‘bad' to mean ‘really good', the ironic meaning will become one of the diction­ary's listed utterance meanings.) Indeed, even calling your aunt's use of autobahn mistaken is somewhat arbitrary, as it could be said that she is correctly using her version of English, an English idiolect very similar to standard English, except that in it, autobahn means footstool (Alexander and Prakash 2004).

The relations between symbols and meanings in languages cannot be pried apart from speakers' intended meanings. Indeed, we cannot even tell what language is being used without referring to the intent of the one using it (Alexander and Prakash 2004; Whittington 1999; Fish 2005; Knapp and Michaels 2005). You, the reader of the book, are almost cer­tainly thinking that we are communicating to you in standard English. And you are undoubtedly also thinking that our symbols are the black marks on the pages rather than the white spaces between them. But if you were told we are Esperanto speakers, or that we belong to an exotic community whose alphabet is represented by the white spaces, not the black marks, your understanding of what we are communicating to you would change.

Now it is true that the marks on the pages of this book could have been made by someone other than us intending to convey a different mean­ing from the meaning we intend to convey (Alexander and Prakash 2004). That follows from what we have said. But that does not make the meaning of the marks autonomous from the intended meaning of their author. What it shows is that any sign - any symbol - can be used to signify anything. ‘Autobahn' can be used to signify a German highway. But, as we have argued, it can be used to signify a footstool, or, for that matter, a ‘butterfly', ‘shut the door', or anything else.

Symbols signify whatever their users intend to signify thereby. When the ‘symbols' are created in the absence of an intent to signify

something, however, they are not symbols at all, even if they look like symbols. If one sees a cloud formation that resembles a C, an A, and a T, then unless one believes it is a message from God and not just a natural atmospheric process, it would be odd to wonder whether that cloud formation means ‘domestic cat' as opposed to ‘any feline', or whether the cloud pattern is in English or in French (Alexander and Prakash 2004). In the absence of a speaker with an intended meaning to convey through them, the clouds are just clouds, their resemblance to letters notwithstanding.

And just as recourse to speaker's meaning is necessary to identify the particular language being used or whether a language is being used at all, recourse to speaker's meaning is necessary for resolving ambigui­ties. Even if we know that the speaker is intending to convey a meaning, is intending to convey it in standard English, and is a competent user of standard English, if the speaker uses, say, the word ‘cat', we must look to the speaker's meaning to determine whether ‘cat' means ‘domestic tabby', ‘any feline', or ‘jazz musician'.

Of course, it is possible to imagine a legal regime in which interpreters of the law - judges, administrators, lawyers, and ordinary citizens - are instructed to interpret legal rules as if they had been authored by a hypothetical person or body with certain characteristics (Alexander and Prakash 2004). As an example, the interpreters might be instructed to assume that the author(s) of the rules wrote (or spoke) the rules in standard English (as set forth in a particular dictionary), complied with the rules of grammar (as set forth in a particular style book), and, when the word has two or more meanings in the dictionary, always chose the first listed meaning. Because the actual lawmakers would know how their rules would be interpreted, they would try to craft them so that this method of interpretation would capture their actual intended meaning. If they failed, however, interpreters would have to ignore the intended meaning, no matter how obvious. In the case of the Seventeenth Amendment, for example, if the hypothetical author used standard punctuation, then the constitutional amendment would be deemed to have expired six years after ratification, even though that was obviously not the intended meaning of the amendment. Or, in the case of the Arkansas scrivener's error, the entire legal system of Arkansas would be deemed to have been repealed by a minor law despite the absurdity of thinking that was the lawmakers' intended meaning.

Interpretive norms such as those just described function as higher-order norms than the laws the interpretation of which is at issue (Alexander and Sherwin 2002; Alexander 1995). They tell the lawmakers that the laws they enact will not be interpreted based on their intended mean­ings but based on the symbols they use and the dictionaries, grammars, and so forth through which those symbols are filtered. If the laws thus interpreted are constitutional laws, then the interpretive norms are metaconstitutional.

We shall come back to the topic of authoritative norms governing interpretation in a later chapter (see Chapter 3). But one point to stress here is that when an interpretive norm such as the one just described is employed, the result is a law that is not the product of human delib­eration about what law is best. It is instead the product of a mindless process in which the putative lawmakers furnish only the symbols but not their meaning.

Why does this distinction between interpreting - seeking the speaker's intended meaning - and constructing a meaning based on what some hypothetical speaker would have intended the symbols to convey matter? It matters for your aunt, your parents, and your children because we wish to comply with their requests. And in the case of lawmakers, we care about the norms they intend to have govern us for the very reasons we invested them with the authority to choose those norms. The symbols they employ are their means of conveying to us the norms they have chosen. Those norms are their symbol's intended meaning. To seek the lawmakers' intended meaning is to preserve their authority. To seek the meaning of a purely hypothetical author of the lawmakers' words is to flout that authority and produce governing norms that no one actually has chosen.

Thus, when the lawmakers enact the prohibition on property owners' keeping wild animals within one thousand feet of others' residen­tial property, we want to know what the lawmakers meant by ‘wild animals', ‘residential property', and so forth, not what the lawmakers' symbols mean in Esperanto, Bantu, or Turkish, or even what a hypo­thetical author using standard English would have meant by those symbols, except insofar as this is evidence of what the actual lawmakers did mean by them (Prakash 1998; Lawson 1997; Goldsworthy 1995).

If we know that the lawmakers use non-standard English or are prone to malapropisms, we will discount the probative weight of standard English meanings (Whittington 1999; Goldsworthy 1995)·

Compare the interpretation of lawmakers' symbols to the interpreta­tion of a recipe written by a famous chef· If the recipe calls for ‘salt', then because we are seeking to take advantage of the chef's consider­able expertise, we will then want to know if the chef means ordinary salt, sea salt, or kosher salt· If she meant ordinary salt, then the fact that those same symbols - ‘salt' - could have been made by someone who meant kosher salt will be irrelevant given our desire to ascertain what the chef meant (Lawson 1997)·

The same is true of the lawmakers' rule about property owners and wild animals. The lawmakers intend a certain uptake by those to whom the rule applies, their lawyers, and the courts. And these parties will want to understand what uptake by them the lawmakers intended· Both the lawmakers and their addressees will employ semantic and pragmatic conventions and other relevant information to achieve their mutual goal that the lawmakers' rule - the one they chose to enact, not a different rule expressed with the same symbols - be understood·

The lawmakers' task is to settle what ought to be done and avert the various moral and prudential costs of disagreement and uncertainty· And when they choose what ought to be done and attempt to com­municate that choice to the community in symbols, the meaning of those symbols is the meaning the lawmakers intend by them· Thus, the meaning legal interpretation seeks is not to be equated with the dictionary-plus-grammar meaning of the symbols that constitute the rule's canonical formulation (the utterance meaning)· Nor does it seek what various hypothetical authors would mean, or what various hypo­thetical readers with stipulated deficits of information would under­stand the rule to mean· Nor is legal interpretation a quest for the more general purposes the rule is intended to further, or the overall moral judgment of whoever is called on to apply the rule· The objective of authoritative settlement dictates that the only meaning that should count and guide legal interpretation is the meaning the lawmakers intended to convey through their rule·

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