It's a Full Moon Tonight: Speaker Meaning and the Interpretation and Construction of Executive Orders (with Related Reflections on Legislative Speaker Meaning)
Wake Forest Journal of Law & Policy (Forthcoming)
53 Pages Posted: 7 Sep 2017 Last revised: 2 Oct 2017
Date Written: September 5, 2017
This Article explores the interpretation and construction of executive orders using as examples President Trump’s two executive orders captioned “Protecting the Nation From Foreign Terrorist Entry Into the United States.” President Trump issued these orders in the wake of (among other things) Candidate Trump’s statements such as: “Islam hates us,” and “[w]e can’t allow people coming into this country who have this hatred.” Subsequent litigation involving the orders resulted in Presidential tweets such as: “People, the lawyers and the courts can call [the second executive order] whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” This Article asks what (if anything) we should make of words such as these when seeking the “true” speaker meaning of such executive orders.
In search of such an answer, this Article parses between interpretation (finding speaker meaning in applicable contexts) and construction (determining further legal effects of speaker meaning) and maintains that accurate interpretation and construction of Presidential and other speaker meaning require: (1) recognizing the necessary discourse and other context needed to make sense of text (such as the prior discourse context needed to make sense of “Bring me what I mentioned yesterday” or the prior discourse context calling for “a total and complete shutdown of Muslims entering the United States” needed to make accurate sense of “TRAVEL BAN!”); (2) recognizing that words used to express speaker meaning often deviate from “prescribed” or model usage (such as the phrase “It’s a full moon tonight” used in this Article to direct employees to work late at night or “talking territory instead of Muslim” to avoid “upsetting” people by use of the term “Muslim”); (3) recognizing therefore when references to predominantly-Muslim countries should be taken contextually as references to Muslims in light of a speaker's prior attacks on Muslims, in light of a speaker's express admissions of “talking territory instead of Muslim,” and in light of common knowledge that all territories at issue are predominantly Muslim; and (4) recognizing in every case that one cannot accurately interpret and construe speaker meaning (however “neutral” text might purport to be upon its face) without a good grasp of the ways real-world speakers actually use language in day-to-day speech in applicable context (the study of which day-to-day speech in applicable context is called “pragmatics.”)
Again parsing between processes of interpretation (finding speaker meaning in applicable contexts) and construction (determining further legal effects of speaker meaning), this Article maintains that: (5) reasonable judges who are thoroughly versed in legal theory, legal practice, and the pragmatics of real-world speaker meaning would conclude that President Trump has unlawfully targeted Muslims with his travel restrictions; (6) such judges would recognize that both rule of law and respect for the Presidency require accurate interpretation of unlawful as well as lawful Presidential speech acts lest we substitute unelected speech acts for those of the President; and (8) such judges would recognize that rule of law and respect for the Presidency also require construction of unlawful Presidential speech acts as unlawful. In making these and related points, this Article also touches on speech act parallels between executive orders and legislation with notes on how such parallels shed further light on both executive orders and legislation.
Keywords: executive orders, legislation, meaning, speaker meaning, interpretation, construction, semiotics, pragmatics, originalism, legislative intent, speech acts, legislatures, context, general terms, extension, vagueness, Constitution, First Amendment,Trump v. Int’l Refugee Assistance Project, intent
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