Dworkin makes the distinction between Semantic and Expectation Originalism in statutory interpretation and uses the Brown case to illustrate the differences. The former does what the law intends to do and the latter does what the original writers expected to happen. When I was reading these two forms of judging, I started to compare these forms with art interpretation and I came to the conclusion that the two views are not mutually exclusive. As Scalia says in his response, "those two concepts chase one another back and forth to some extent, since the import of language depends on the context".
In art as well, the viewer creates an interpretation of what they think the art represents, but it is impossible to interpret the artwork without knowing the context. For example, lets take Marcel Duchamp's infamous contemporary piece "Fountain" (on side). When you look at this out of context, it is a urinal that is upside-down. It even asks the question whether this can even be considered art. However, once one understands that the artist's intent was to ask the question "to what extent can something be art because of the space (gallery) it is in", the work seems to have meaning and artwork did what the artists intended it to happen. In Conceptual Art, the object or the physical work itself is not as important as the idea/concept behind the work. This is why, if the interpreter is blind of the context and the nature of the conceptual artistic movement, it is hard to truly be able to understand why this piece of artwork is even considered art. In order to be able to get the "true message" you have to understand the context. But, that does not necessarily mean that all interpretations other than the artist's intent are wrong because he did not expect them. In fact, especially in art, the message or the emotion that the viewers receive can be unintended but also valid interpretations as long as they are justified. And sometimes that interpretation can shape the meaning of that piece later on and impact the artist himself. I think this thought process parallels very well with what statutory interpretation is like, and I agree with Scalia in the point that the context matters because it is truly important to understand context in order to understand anything. 
There is actually a small Duchamp exhibit at the Norton Simon museum in Pasadena. It doesn't have the "fountain," but it does have the bottle rack sculpture.
ReplyDeleteAlso, what are the two concepts that Scalia thinks chase each other around? If they are semantic intent and semantic import, then it is not clear that expectation intent is involved in the "chase."