I love reading Fish - one of my thinking heroes, although he can be maddening. He has a piece in today's NYT about the words we commonly (mis)use in evaluating judicial temperaments. There's not enough space there for him to work his typical rhetorical magic, in which he announces a counterintuitive notion (like "there is no such thing as free speech, and it's a good thing"), applies an essentially simple argument to it over and over until you realize--oh shit--he's right. So quoting out of this brief piece will be especially unhelpful, and this is far from his most compelling ideas, but here's a taste:
(I)f interpreting a document is to be a rational act, if its exercise is to have a goal and a way of assessing progress toward that goal, then it must have an object to aim at, and the only candidate for that object is the author's intention. What other candidate could there be?His books, "Is There a Text in this Class?", "There is No Such Thing as Free Speech", "The Trouble with Principle", "Doing what Comes Naturally", and "Professional Correctness" are all fascinating reads, if you're willing to rethink some of the cliches you have come to depend on as supporting (what you think are) your most deeply held principles. I'm glad to loan you my copy of any of them.
One answer to this question has been given by Justice Antonin Scalia and others under the rubric of "textualism." 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."
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 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.
And if there is no object - no plain and lucid text to which interpreters could be faithful - neither is there an object to which interpreters could be unfaithful. Consequently, "judicial activism," usually defined as substituting one's preferred meaning in place of the meaning the text clearly encodes, becomes the name of a crime no one could possibly commit. After all, you can't override a meaning that isn't there.