Stanley Fish takes up a lot of space on the op-ed page of the New York Times to play a silly game. He notes that Justice Scalia thinks that constitutional interpretation should not be concerned with the “intent of the Framers”: “Textualists insist that what an interpreter seeks to establish is the meaning of the text as it exists apart from anyone’s intention. According to Justice Scalia, it is what is ’said,’ not what is ‘meant,’ that is ‘the object of our inquiry.’ The problem is that there is no such object. . . . Justice Scalia has it backwards: if you’re not looking for what is meant, the notion of something being said or written is incoherent. Intention is not something added to language; it is what must already be assumed if what are otherwise mere physical phenomena (rocks or scratch marks) are to be experienced as language. Intention comes first; language, and with it the possibility of meaning, second. And this means that there can be no ‘textualist’ method, because there is no object—no text without writerly intention—to which would-be textualists could be faithful.”

Scalia’s point, I take it, is that if we want to know the meaning of, say, the First Amendment, knowing the Framers’ views about religious freedom does not settle the matter. The illustration usually brought up here is that if a secret letter from James Madison saying “what we had in mind was to prevent our new Congress from hiring chaplains,” it wouldn’t matter. What matters is what the ratifying public of the time understood the words of the amendment to mean. There is no attempt to divorce words from intent in the strong sense that Fish needs for his argument to work: Our interpreter would be inquiring as to what the ratifiers understood themselves to be doing when they ratified the amendment—in other words, what they intended in the act of ratification. One might say that Justice Scalia is interested in objective and public, rather than subjective and personal, intent; and it would not be unreasonable for him or anyone else to use the words “original meaning,” or “textualism,” to distinguish his idea from the idea that we should look to the “framers’ intent.”