April 1, 2012

Why progressives must resist both “originalism” specifically, and the Constitution more generally.

Terry H sends me the link to a very useful throwback article that speaks to a running theme here on pw — namely, that what is we think we’re doing when we interpret matters not only philosophically and methodologically (or if you prefer, theoretically), but materially, as well.

For the purposes of judicial interpretation, to conceive of a text as a set of fixed signs intended by its author(s) and ratifiers is to conceive of an actual thing — a document, finished and promoted, that is given the force of law by virtue of the legislative mechanisms assigned to completing such a procedure. Alternately, to conceive of a text as “living” is to conceive of it not as a text at all. Instead, what is imagined and promoted is a procedure for determining applicable law, one that is by its very nature unstable — based as it is not on the text-as-thing, but rather on the whims of those engaging it, who conceive of it as a set of marks over which they have superlegislative jurisdiction and powers.

That is, a “living” text is not a text at all, properly understood: it is instead an assertion — the argument being that “a text” is always but a potentiality, and so it means only (or also) what those interpreting it can conceivably make it mean by a process of resignification now unencumbered by appeals to legislative intent. As a result, those who promote the idea of a “living Constitution” rationalize for themselves the power to create law (though many do so by incoherently promoting their rewritings as legitimate additions to the original text allowed for by the marks presented them) as well as lay claim to “interpreting” it.

And it is this procedure — in all its several methodologically-promoted forms — that has led both to the weakening \(and deconstruction) of the Constitution as originally conceived and ratified, and the expansion of governmental powers as granted by a supposed co-equal branch.

Again, some have argued that looking at precisely how we’ve lost our way — at least, on the level of language (and, as a result, epistemology) — is “fundamentally unserious”; they care only about the tangible, the power struggle, the winning of elections and the promotion of conservatism through numbers and will and public persuasion.

Me, I think these perhaps well-meaning pragmatists miss the forest for the trees. Those who control the language — not just the message, but the rules for how messages can legitimately be determined and promoted — control the entirety of the game.

Until we insist on a fidelity to linguistic coherence — and in terms of judicial interpretation, originalism, working within established conventions for how legal language must operate, is the only legitimate judicial philosophy that can lay claim to actually interpreting — we will be subject to the whims of motivated interpretative “communities” and a kind of softly-disguised mob-rule collectivism.

And because of that, all of “our” victories are Pyrrhic and temporary, and the country cannot help but to move inexorably left, governed as it is by the left’s linguistic rules, entrenched and institutionalized and, as Stanley Fish recently showed, increasingly unapologetic.

Posted by Jeff G. @ 12:23pm

Comments (12)

  1. “. . . governed as it is by the left’s linguistic rules, entrenched and institutionalized . . .”

    This is correct and strange beyond belief — all at one and the same time! For how, we wonder, can we arrived at “entrenched and institutionalized” (as tokens of permanence) on the grounds of an entirely incoherent epistemology as a basis?

  2. The proclamation that all things are and ought to be open to fluid interpretation is merely a stratagem, not a principle. The Left knows its proclamation is a load of hooey, but it also knows enough people will be fooled by it to give the Left the opening it needs to entrench itself.

    Once it has established its permanence and isolated all opposition, it can uphold the lie of interpretive fluidity for however long the lie serves — because the Left will have the means to ensure that whatever interpretation itn prefers, will never be sufficiently challenged as to be overturned.

  3. Hey, it’s quiet as a library in here McG. Which is odd, considering that this place stands at the center of an armed insurrection against tyranny.

  4. Everybody’s more interested in L’Hommedieu pickup lines, I guess.

  5. Today is a day of rest, ya heathens.

  6. Well, fellers, I guess I finally have something to thank Obama for; citizens are waking up to the fact that they’ve been taking their freedoms for granted.

    We’ll have to wait to see if it does any good.

  7. Today is a day of rest, ya heathens.

    You mean discussing weighty and complex matters isn’t your idea of recreation?


  8. [Looks around to see if there is an adult beverage within reach.]

    Not at this precise moment, McG.

  9. Tyranny is the dog shit that covers the twin paths leading to safety and utopia. Smell your shoes america.

  10. Did someone say “armed insurrection against tyranny”? Damn, I must have missed it when I was at the range yesterday. Day of rest, ya know.

  11. You didn’t miss anything RI Red, seeing as how you were born in America. Right (I don’t have insight into your place of birth, but make an assumption)? In any case, I think all Americans as Americans stand in the midst of an armed insurrection against tyranny. That’s our deal, and pretty much always has been since about the 1750s on, if not earlier.

  12. Skepticism and relativism are two-edged swords. They can be wielded to question the powers that be to promote a greater inclusiveness, but they can also be employed to question any kind of knowledge whatsoever.

    It seems to me that you can’t do the former without in fact doing the latter, owing to the methodology.