An AALS smackdown on philosophy of language?

As I complained in an earlier post, I'm a bit disappointed by what I take to be the dearth of interest in the philosophy of language at law schools. But Larry Solum's work is an exception that proves the rule: Larry has defended a dense and rigorous brand of "semantic originalism" using Gricean semantics. (You can download the Reader's Digest version here). Given that Larry, Mitch Berman, Ian Bartrum, Laura Cisneros, Amy Barrett, and I are all panelists at the AALS conference charged with discussing "The Interpretation – Construction Distinction in Constitutional Law" (on Saturday, January 9th) and given that Mitch and Larry have tussled over Larry's originalist argument in print, this seems like a good opportunity to provoke some pre-conference discussion on a linguistic issue close to my heart -- the principle of charity. Specifically, is the principle of charity a normal part of "interpretation," akin to dictionaries, rules of grammar, etc., as a guide to norms of linguistic usage? Or is it a matter of "construction" to which we should resort only when the text is otherwise ambiguous?

"Charity" is simply the idea that we construe someone else's words to correspond as closely as possible to what we believe to be true: Interpretation, on this account, should maximize normative or factual agreement between interpreter and speaker. In Donald Davidson's words,"it is impossible for an interpreter to understand a speaker and at the same time discover the speaker to be largely wrong about the world." (Subjective, Intersubjective, Objective at 150). When some theory of usage makes speakers say something really weird (to our lights), we discount that theory, favoring other plausible theories of usage that eliminate the oddity as much as possible.

Larry seems to argue that our own normative or empirical notions cannot play a role in fixing the semantic content of constitutional text: In his words, the belief that "semantic content is determined after the fact of communication on the basis of what we would like an utterance to have meant given our practical concerns" is a "fundamentally confused" way to think about interpretation (page 103). Larry includes three pages (pages 146-49) on the principle of charity, Quine, and Davidson in Semantic Originalism, but he treats charity as a way of reducing ambiguity through "construction" rather than as a form of "interpretation."

I think that I disagree with Larry on the role of charity, which I take to be built into interpretation just as deeply as any anthropological examination of dictionaries and rules of grammar. But an illustration from some specific constitutional text -- Article I, Section 2, Clause 3, calling for a decennial "enumeration" or census -- might help clarify why I think that Larry is mistaken.

Article I, section 2, clause 3 requires that an "actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct." Are statistical sampling techniques that do not involve the actual individual counting of citizens an "actual enumeration" within the meaning of this clause? SCOTUS has not decided this question, preferring to resolve the issue on statutory grounds in Department of Commerce v House of Representatives, 525 U.S. 316 (1999). But Justice Scalia, concurring separately, suggested that "[f]or reasons of text and tradition, fully compatible with a constitutional purpose that is entirely sensible, a strong case can be made that an apportionment census conducted with the use of sampling techniques is not the actual Enumeration that the Constitution requires." Dep't of Commerce at 349. "Text and tradition" were established to Justice Scalia's satisfaction by "[d]ictionaries roughly contemporaneous with the ratification of the Constitution" as well as the early republic's conducting its censuses of 1790 and 1800 through the actual counting of heads.

I want to draw attention to Justice Scalia's reference to "a constitutional purpose that is entirely sensible." Even a good originalist like Scalia felt the need to supplement his dictionaries with some account of the purpose served by limiting the definition of "actual enumeration." Moreover, Scalia felt that he should describe this purpose in a way that rendered it intelligible -- "entirely sensible" -- to us. (According to Justice Scalia, the term excluded enumerations made through complex statistical techniques, because such techniques would give Congress too much discretion to skew the population count for partisan reasons). We could not eliminate the possibility that statistical sampling constituted an acceptable "enumeration" simply by looking at dictionaries or early censuses. Even if these sources indicated that head counts were the universal method for conducting censuses in 1790, we could not exclude the possibility that those folks simply had not considered the possibility of using advanced statistics. If statistical sampling were a much more accurate and cheaper way of counting the population, then it would be akin to taking a spoonerism literally to exclude this practice from the term: Why in the world would we assume that the framers and ratifiers and general public had some fetishistic aversion to good social science? To make sense of the constrained definition excluding sampling, we need some account of 18th century purposes that rings true to us.

Why this invocation of normative considerations by the arch-originalist? Because this is how ordinary interpretation is always conducted: Charity is essentially similar to conventions of grammar, "textual" canons of construction, dictionary definitions, etc. It is part and parcel of ordinary interpretation. Just as we read a series of terms by deploying ejusdem generis, thereby preventing a broad final term from rendering the other terms redundant, so too, we read apparently wacky assertions in light of our own norms of morality, empiricism, etc. We invoke the canon, because we impose on speakers a norm against redundancy; We invoke charity, because we impose a norm of rationality. But both the canonical and the charitable readings are equally "literal" albeit normative: They eliminate ambiguity only in the trivial sense that all texts are ambiguous until we invoke all of the semantic resources necessary to interpret them. When William Spooner referred to Queen Victoria as "our queer old dean," we do not first discover that the terms "queer" and "dean" are somehow obscure and then deploy some ambiguity-reducing norm because ordinary semantic resources have failed us. Rather, we know from the outset that the terms are perfectly clear when read in light of the appropriate norms of usage: Spooner said that Queen Victoria was a "dear old queen" and did not (even ambiguously) say that she was an eccentric staff member of a university. Moreover, we reverse the letters in Spooner's statement not because we are looking to his subjective intent ("speaker's meaning") or because we are judicial activists who ignore fidelity to the text in favor of our own values. Instead, we read Spooner charitably, because charity is just as much a usage norm as, say, the rule that "and" should be read conjunctively and "or," disjunctively.

Does Larry disagree? I cannot say for sure. But, if he agrees, then why are our norms not built into interpretation from the outset?