At the philosophic nub of his review, Justice Scalia tries his hand at semiotics. He digs in his heels and takes the firm stand that words are signs or symbols that have meaning independent of any sign-giver. Standing alone, they have meaning unto themselves. He accuses Steven Smith’s “Law’s Quandary” of confusing the question whether words merely “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).” Obviously, he understands the primary function of words as symbols to “produce” concepts.
Launching into concreteness, he asserts that “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.”
Or “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.”
Or, “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.”
Perhaps a rejoinder to this could be the amusement that a parrot or mynah bird would produced if trained to squawk “I do” in a matrimonial setting. We laugh because the symbolic sounds, “I do,” mean: “I intend to give myself to you forever. ” Those sounds are our conventional symbols signifying the interior intention of a self – an “I” – to give self to another. What’s funny is there is no “I” to give. Incongruity is funny. However, when the bridegroom – a self - says “I do” but means “I don’t,” the “I do” does mean something because there is an “I” who can intend meaning and therefore the words “I do” should “mean” “I do”(when in reality they “mean” “I do not”). Where there is an "I" speaking a word, the word is a symbol that should make sense (have meaning) because the "I" intends it. If he doesn't intend it, Scalia is right: the words still carry meaning; but not because they have self-evident meaning or some autonomous and objective intelligibilityi in themselves. Rather, every "I" before this has intended the words to mean "I give myself to you." This is convention. You cannot separate meaning from the intentionality of a subject. “I do” is assumed to have meaning in the mouth of the bridegroom because it is assumed that words as symbols have the meaning that an “I” intends them to have precisely as symbols. Otherwise, they would not be "symbols." However, the symbols may be false because “I do” should really be “I do not.” And so, we may say that symbols may be false, but not that they have meaning independent of an intending subject.
In the case of the fire bell, as the Justice says, the bell has meaning from convention that has been given to it by an intending subject or subjects. And that intention of persons has been so understood even if set off by a monkey.And indeed, The Merchant of Venice is The Merchant of Venice precisely because one thousand monkeys randomly striking keys could never have written it in an infinity of time.What is astounding is that Scalia takes Smith’s claim that “legal meaning depends on the (semantic) intentions of an author” as “extravagant and nonsensical.” Equally astounding is that he contrasts meaning with convention, as if convention has nothing to do with meaning.
Scalia and Dualism:
Scalia shows himself to be a child of his time as he and Alice in Wonderland “believe that words, like conventional symbols, do convey meaning, an objective meaning, regardless of what their author `intends’ them to mean.” He next says that “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.” But, one must ask, what is convention at all but the participated meaning that subjects impart to objective signs and symbols? Such a radical separation of subject and object is nothing but the defunct dualism that has impaired the very use of reason and has led us into the “dictatorship of relativism” and the nihilism of absolutes that then-Cardinal Ratzinger announced on the cusp of his becoming Benedict XVI.
Ratzinger: Toward a Solution:
Since Scalia’s point turns on the hermeneutic of words, the analogy of Josef Ratzinger’s (now Benedict XVI’s) discoveries in the interpretation of the words of Scripture could be helpful. Ratzinger had difficulty with his director Michael Schmaus in the approval of his habilitation thesis as professor of theology in Germany. In his research, he had found in St. Bonaventure that the words of Scripture were not in themselves “revelation” as in “meaning.” Rather, that Revelation was an action of the Person-subject of the revealing Christ that was “deposited” in the words of Scripture. That Scripture itself was not revelation, and that its real meaning could not be found objectively in itself independently of the revealing Subject and the believing self. The words themselves did not have the full meaning. He wrote: "`revelation’ is always a concept denoting an act. The word refers to the act in which God shows himself, not to the objectified result of this act. And because this is so, the receiving subject is always also a part of the concept of `revelation.’ Where there is no one to perceive `revelation,’ no re-vel-ation has occurred, because no veil has been removed. By definition, revelation requires a someone who apprehends it. These insights, gained through my reading of Bonaventure, were later on very important for me at the time of the conciliar discussions on revelation, Scripture, and tradition. Because, if Bonaventure is right, then revelation precedes Scripture and becomes deposited in Scripture but is not simply identical with it. This in turn means that revelation is always something greater than what is merely written down. And this again means that there can be no such thing as pure sola scriptura (`by Scripture alone’), because an essential element of Scripture is the Church as understanding subject, and with this the fundamental sense of tradition is already given.”
It is revolutionary in an epistemological climate dominated by positivism to affirm “that revelation is always something greater than what is merely written down.” I submit that if the involvement of the self as believer is constitutive of the revealed meaning of the words of Scripture, it is analogically supportive of Smith’s contention that “legal meaning depends on the (semantic) intentions of an author” and far from “extravagant and nonsensical” as Scalia maintains. The question is large and involves the escape from or imprisonment within the hard dualism of mind and matter that has come to us for the past 400 years. Scalia works within that dualism, and being a lover of truth and impatient with subjective whimsicalness, he takes the hard road of the plaster cast that protects the broken leg until it heals. As he once wrote, “You can’t beat somebody with nobody.” Within dualism, he has nothing real except the word. As a judge, his task is the interpretation of the law. His workbench is words that express and hold that law. His mission is not judicial activism that would make law. That is the task of the elected legislature in a representative democracy. The received philosophic heritage has given him no tools to ground truth ontologically on the side of subjectivity. So he chooses the objective realism of words and - not being able to refute philosophy without doing philosophy – he inevitably backs himself into the corner of legal positivism.
One of the great minds in semiotics, Owen Barfield (an “Inkling” with J.R.R.Tolkien, Charles Williams and C.S. Lewis, the latter calling him “the wisest and best of my unofficial teachers”) remarked, “Lovers do not intend to talk about the emotion of love; they intend to talk qualitatively about each other, and a speaker’s intention is his meaning; indeed it is another word for it.”
Breaking the Dilemma of Dualism.
How great it would be if Scalia could open himself to the discovery that the “I” can be experienced as being, in fact, as the “privileged locus for the encounter with being, and hence with metaphysical enquiry” (Fides et Ratio #83) and so ground the “self evident truths” and “inalienable rights” that are symbolized in the wording of America’s constitutive law. When asked why he has no recourse to natural law as the intention that is the meaning of our law, he retorted (to me), “which natural law, Brennan’s or mine?”
The One "Natural Law:"
Irving D. Yalom, long time professor at Stanford University, in his existential therapy suggests that the anxieties experienced in society, such as fear, guilt, yearning for ecstacy, sadness and depression, correspond to the real absolutes of Christian Revelation such as death, judgment, Heaven and Hell. We fear death; we are guilty in the anticipation of judgment; we yearn for joy, and not finding it in the asceticism of self-gift, procure it for ourselves in orgasmic sexuality and the technology of drugs; we experience sadness in isolation that ends in depression. There is no escaping the effects of the inner ontology of the human person that grounds the one "natural law" (or, better, law of the person). Man is constantly experiencing the truth or falsity of the real self. If the self were not real, there would be no experiences. The cartesian self of consciousness is an abstract fiction.
Remarking on the deep experiences of man's revealed origin, John Paul II suggested that "The important thing is not that these experiences belong to man's prehistory (to his `theological prehistory'), but that they are always at the root of every human experience. That is true even if in the evolution of ordinary human existence, little attention is paid to these essential experiences. They are so intermingled with the ordinary things of life that we do not generally notice their extraordinary character" ("Theology of the Body," 51) .Corresponding to these experiences, which are ultimately "conscience" is the above mentioned ontological structure of the person. Ratzinger commented: "This means that the first so-called ontological level of the phenomenon conscience consists in the fact that something like an original memory of the good and true (both are identical) has been implanted in us, that there is an inner ontological tendency within man, who is created in the likeness of God, toward the divine. From its origin, man's being resonates with some things and clashes with others. This anamnesis of the origin, which results from the godlike constitution of our being is not a conceptually articulated knowing, a store of retrievable contents. It is so to speak an inner sense, a capacity to recall, so that the one whom it addresses, if he is not turned in on himself, hears its echo from whtin. He sees: That's it! That is what my nature points to and seeks" (Conscience and Truth, 1990). To grasp this would liberate Scalia from the tyrrany of being trapped in symbols the meanings for which he cannot explain except by bluster. The truths of the American founding cannot be mined only in the wording of the Constitution and Bill of Rights but in the original intent behind them, which historically was a Christian experience.
It is worth repeating: without the lived experience of Christian faith as an act of self-transcendence, there is no breaking the dilemma of Enlightenment dualism with the bogus choice of subjective relativism or reductive objectivism. The fact that faith is an act and involves a lived experience means that the believing subject is being. This experience of self-transcendence is accompanied by the consciousness of the “self-evident” truths and inalienable rights grounding the American experiment in liberty. By the experience of self-transcendence, we regain the self-evident consciousness (truth) of the dignity of the human person with inalienable human rights that ground and protect the separation of Church and State, and the consciousness that is the truth and intention of the words of our law that must be sought out in judicial interpretation.
 J. Ratzinger, Milestones, Memoirs 1927-1977 (1997) 108-109. Own Barfield, “Language and Discovery,” The Rediscovery of Meaning and Other Essays, Wesleyan (1987).