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Tuesday, July 19, 2005
Fish Again
Stanley Fish continues his domination of the public sphere with yet another op-ed in the NY Times today. It’s of interest in these parts because, in an unsuccessful effort to have something new to say about Supreme Court appointments, Fish makes heavy weather of the argument made by Against Theory. In fact, Fish all but directly quotes the book’s renowned central example. Here’s Fish’s reprise of Knapp and Michaels’s hypothetical of the sea tossing up a line from “A Slumber Did My Spirit Seal”:
The problem is that there is no such object [as what is simply “said” by a text like the Constitution]. Suppose you’re looking at a rock formation and see in it what seems to be the word “help.” You look more closely and decide that, no, what you are seeing is an effect of erosion, random marks that just happen to resemble an English word. The moment you decide that nature caused the effect, you will have lost all interest in interpreting the formation, because you no longer believe that it has been produced intentionally, and therefore you no longer believe that it’s a word, a bearer of meaning.
Myself, I’m a Walter Benn Michaels partisan. But even I can see that in the piece included in TE John Searle deals a devastating blow to Knapp and Michaels’s argument, as John does in his Poetics and Problematics essay.
Knapp and Michaels have acknowledged, at least to some degree, the seriousness of Searle’s criticism. Fish ignores it here, and that leads him into a farrago of misleading suggestions.
E.g., there’s this remark:
This does not mean, however, that interpreting the Constitution is a free-form activity in which anything goes. The activism that cannot be eliminated from interpretation is not an activism without constraint. It is constrained by the knowledge of what its object is - the specifying of authorial intention. An activism that abandons that constraint and just works the text over until it yields a meaning chosen in advance is not a form of interpretation at all, but a form of rewriting.
Rewriting is what is being done by those who talk about the “living Constitution” and ask, “Why should we be constrained by the dead hand of the past?” This makes no more sense than asking, “Why should we be constrained by wills and contracts?”
I could be wrong about this, but I don’t think anyone’s spoken in quite this manner since the early twentieth century heyday of legal realism in the U.S. Fish strangely gives life here to one of the non-existent boogie men of the Federalist Society.
Then, there’s this follow-up:
So, if you want to know how someone is likely to act on the bench, you will have to set all the labels aside and pay attention to the nominee’s reasoning in response to the posing of hypothetical situations. What bodies of evidence does he or she cite on the way to deciding that the Constitution or a statute means this or that? What weight does he or she give to precedent? (Invoking precedent, I should add, is not interpreting, because in doing so one substitutes the meanings delivered by a judicial history for the meanings intended by an author.)
Now, despite the earlier rejoinder to Scalia, this amounts to little more than a version of Scalia’a originalism--and, of course, a recipe for extreme judicial activism. Precedent (i.e., prior interpretation of the Constitution) is not interpretation but the substitution of historical meaning?! Fortunately, the Senate is unlikely to encounter any nominee with a view quite so absurdly extreme.
Fish surely knows this. The essay looks like a characteristic Fishism--provocative, exaggerated, unilluminating. And, for an avowed pragmatist, strangely unpragmatic. He takes an unlikely theory, reifies it further, and then deduces meaningless consequences from it.
Comments
For those of us who were too lazy to read Searle’s essay in Theory’s Empire, and who aren’t quite sure what exactly the positions of Searle, Benn Michaels, Knapp, and so on are on matters of intentionalism vs. textualism, would you mind very much spelling it out?
Secondly, you lose me when you interpret that passage from Fish about hypotheticals at the end of your post as a proxy for originalism. I don’t see how you’re making the jump.
This appeal to intentionalism by Fish (and blatant quasi-plagiariam of Michaels) strikes me as pretty weird. Wouldn’t Fish’s position be that the meaning of the constitution is whatever the “interpretive community” of the law profession says it is right now (within constraints, of course, determined by legal precedent)? Or has he totally ditched the idea of interpretive communities? I haven’t followed Fish’s various theoretical shifts - not worth the bother. You just can’t pin that wriggly little bugger down to a consistent or even coherent position most of the time.
I haven’t read Searle’s article, but I don’t see that Holbo has dealt Michaels and Knapp’s thesis a “devastating blow” in the paper linked to in the post you cited. As far as I can see, Holbo’s only argument against Michaels and Knapp in that paper is basically that the “utterances” of computers have meanings, but don’t have intentions behind them. And while Holbo may be right, it seems clear to me that there are several counter-arguments that could plausibly be made, and that Holbo would have to do a lot more work to make his argument a “devastating blow.”
Fish’s piece is amazingly thin. It’s almost as if it were written on auto-pilot (to a greater degree than most of his pieces), with the following paint-by-numbers steps:
1. Appear to be cutting through the clutter of the arguments of others, by making a simple but “controversial” claim.
2. Take what appear to be equal jabs at those on the left and the right, so that the argument won’t be dismissed as ideological and biased.
3. Set up some straw men (eg “the dead hand of the past” quote that Sean puts to) to knock down, to make it seem that you’re really providing a new perspective, changing the frame of the debate, and making a sounder argument than all the “confused” people on each side.
And so forth. But this time, Fish’s argument yields nothing new at all, and provides no basis for evaluating whomever the nominee might be. I guess retirement isn’t suiting Fish very well.
I don’t begrudge Fish cribbing from Michaels and Knapp here. The “Against Theory” argument is heavily indebted to Fish, and I’ve always thought of Walter Benn Michaels (especially of that era) as very much under Fish’s influence (and they’re good friends, were in the same dept. in the late ‘70s, etc.). But the idea that all we need to do is look for the “meaning intended by an author"--especially in this context, a constitution--is ridiculous. Even if one were at all persuaded by the “Against Theory” argument (and I’m not--as Searle mentions, George Wilson’s long response is perhaps the sharpest), the Constitution is not the same as a poem by Wordsworth. Who is the “author” of the Constitution? It begins, of course, “We, the People of the United States . . . do ordain and establish this constitution for the United States of America.” Are “We, the People” the “author”?
The Michaels/Knapp argument at least had the virtue of trying (if unsuccessfully) to displace other models of literary interpretation (E. D. Hirsch, for instance). Fish isn’t seriously engaging with any other forms of interpretation here, but if it does have any rhetorical effect, I fear it is, also as Sean suggests, to reinforce the Scalia and Federalist Society position of standing against those who would “rewrite” the Constitution.
Does anyone else get the feeling from his cocksure prose that Fish takes a sadistic pleasure in knowing that this piece will drive a lot of literary scholars, on all sides of the theory debates, a bit batty, and in knowing that in his role as a Times legal analyst he can get away with making no reference to the lit-crit (nor even to the legal) history of this argument? It’s as if he’s rubbing our noses in the fact of our field’s relative invisibility in the public sphere. Or is that being too sensitive?
Should we at least appreciate the mere fact that he’s airing the concept of the inevitability of interpretation in a discourse dominated by the idiotic use of the term “activist judges”?
Knapp and Michael’s argument, Amardeep, is that it’s impossible to conceive of meaningful language without intention and that all reading is therefore reading for the author’s (or speaker’s) intent. When you think of language without intention you’re treating it as a natural accident--like something tossed up by the sea. That example works well for K and M because it shows that, while we might have an experience of something tossed up by the sea, we won’t have any interest in what the sea means. In their view, we won’t be treating what it produces as language, but just as material stuff. The larger polemical point K and M take from this premise is that, since it’s impossible to separate intention from langauge in the first place, it’s also impossible to imagine intention as a supplement that could be either added to or lost from a text--which means that literary theory (in the sense of a larger account of the proper relation between intentions and texts) is impossible. Neither E.D. Hirsch’s idea that we should be seeking out evidence of a writer’s intention to add to our interpretation of a text, nor the Derridean sense that intention can be lost from language makes sense. The only kind of interpretation we’ll be able to do, then, won’t be theoretical, but pragmatic: case by case interpretation of the meaning of texts.
(In his latest book, The Shape of the Signifier, btw, Michaels details the numerous ways that recent theorists and creative writers have been determined to go in precisely the opposite direction--treating texts not as creations whose meaning we interpret but as virtual accidents whose material qualities we experience. The consequence of this attitude, Michaels contends--and the motivation for it, it might be added--is the impossibilty of genuine disagreement. Completely convincingly, I believe, Michaels sees a widespread contemporary attitude that says: since we all only have different experiences of words, there’s no sense to arguing about their meanings. As Scott has noted, this is closely related to Michaels’s account of the epistemology of identity politics (we all have our own, incommensurable experiences). But the book features a number of other tightly sewn-in corrolaries. Among other of its delights and surpises is an implicit defense of vulgar Marxism and the charge that what you read in Judith Butler or Hardt and Negri’s Empire is logically symmetrical to Bush’s talk of a war on terror.)
Searle and Holbo say in rejoinder to this argument that it’s perfectly possible to imagine a minimal “sentence meaning,” as Searle puts it, that can be distinguished from the intention motivating an utterance. (Searle distinguishes between sentences--basic syntactic units--and utterances, intentional productions of speakers.) Because language is a set of conventional codes, we can read the meaning of a sentence, without necessarily being interested in the intention of the speaker. (Since K and M’s account is of language per se, Adam, if this argument is true, it does indeed amount to a serious challenge.) I imagine Searle would say that, even before we could agree to have different experiences of a poem, we’d have to be able to decipher the syntax of its sentences. It’s possible, in other words, to imagine two readers of English who, taking no interest in Wordsworth’s intentions, agree to have completely difference experiences of “A Slumber Did My Spirit Seal”. But the same couldn’t be said of a non-English reader, who wouldn’t be able to do the basic deciphering necessary to have a reading experience. Put differently, K and M think that when we are indifferent to intention, we treat all readers as people for whom it doesn’t matter whether they speak the language of the text or not. (In fact, recent sci fi literature is, I understand, full of stories of people who have striking experiences of texts they cannot read.) Searle would say different. (As he notes, at one point K and M seemed to have accepted a version of this claim, but I gather they’ve rethought. I hope to find out more and to be blogging about this in the future.)
Two features make Fish’s piece a proxy for originalism, I think: (1) the dismissal of precedent as “judicial history.” And (2), more importantly, this remark: “What bodies of evidence does he or she cite on the way to deciding that the Constitution or a statute means this or that?” It could be that I’m misreading Fish here, but I think the standard reading of this would be that “bodies of evidence” was referring to something like historical information that could inform us of the intent of the founders. If so, that would be a departure from K and M and I believe quite close to the search for original meanings.
All this does seem to me inconsistent with the whole “interpretive communities” shtick, Stephen, but I’m not a close Fish reader either. No doubt he could wrap me up in knots about all this. Still, I agree with Gannon and Jeffrey, the piece is provokingly glib. (Among other things, it doesn’t even consider the possibility that a constitution might be generically distinct from a call for help.) And that’s surely Fish’s intent.
Thanks Sean, that’s quite helpful; I need to go read these various texts. I realized that after the last exchange around WBM, but then Theory’s Empire happened. Now I’m ordering the book.
Incidentally, there is an interesting response to the Fish piece from a scientist in the comments on my blog. He says this:
But this premise is entirely wrong, of course. Evolutionary biologists routinely ascribe ‘meaning’ to products of chance (& necessity), products that have not been designed/authored.
Back in 1996, Eric Lott wrote an excellent review for *Transition* (no. 72, 1996, 108-135) of WBM’s *Our America* (along with David Hollinger’s *Postethnic America*, Stanley Crouch’s *The All-American Skin Game*, and Albert Murray’s *The Blue Devils of Nada*) that criticized WBM’s attempt to discredit various progressive discourses by demonstrating their logical homology with conservative or racist discourses. Logical homology doesn’t, ultimately, mean two things are identical. For example, a woman who claims self-defense in killing an attacker is using reasoning that is logically homological to Bush claiming self-defense in attacking Iraq. This doesn’t allow us to equate the woman and Bush, although WBM’s work often uses such strategies to discredit certain forms of thought. It’s basically a type of guilt by association.
As far as intention goes, it seems that WBM and SK ignore Husserl’s distinction between expression and indication, a distinction that informs Derrida’s work. Take a smile. We might think it expresses “happiness,” but it also indicates the presence of various muscular and neural activities. And it’s only the latter of which we can be sure; the expressivity is always a matter of interpretation (i.e., her beautiful smile might really be the result of gas).
So that in the case of a rock formation that seems to spell out “Hello,” we can say that while it expresses nothing, it indicates a whole lot: it is symptomatic of the eroding powers of waves, of the physics of wave motion, of the mineral makeup of the rocks themselves and the water, etc. Just like the cross-section of an old tree indicates age, various environmental traumas, and so on.
Similarly, we don’t just interpret what an author’s expresses; we also tend to look for what a text indicates, how its language, form, and so on are symptomatic of various social forces. That’s really what WBM does in his own readings; he rarely takes a novel (say, *The Sun Also Rises*) at its expressive level. Instead, he layers texts on top of each other, so that a Thomas Dixon racist plot is seen as mirroring a Willa Cather plot, allowing us to read a Jew as a black as an Indian . . .
And we’re back to homology.
This isn’t to say that I don’t find WBM’s critique of identity powerful. Still, I’d say even there, WBM tends to treat human subjects as isolatable atoms, as if individuality is prior to relation to a group. Which is to say, WBM should take on sociologists and anthropologists and not just conservative historians and theorists—if he wants his critique of identity to have any real intellectual value.
Luther, I haven’t read the Lott piece in question, but so much depends upon whether or not the woman was actually being attacked, doesn’t it? Assume for a moment that she wasn’t. Now the Iraq comparison looks pretty good. Assume that she was and that, for instance, Iraq plausibly planned to attack and kill the U.S. Still looks pretty good. If she was actually attacked, then the relative truth-content of each claim renders the comparison meaningless, as self-defense and aggression are distinct. In one case, the aggression is in reaction to a threat; in the other, a threat is sometimes invented or greatly exaggerated to justify the aggression.
Whereas women who claim to act in self-defense almost always tell the truth, states who so claim almost always lie. I doubt that Benn Michaels woul advocate this as sound homological reasoning. Having now read the piece, I think you’ve muddied his simple example about race.
The most amazing thing about Fish’s piece from my perspective is the way he ignores how the purpose of a document and the purpose for which you are interpreting it alters the techniques by which you will need to interpret it. He teaches law and humanities, I thought; shouldn’t he be familiar with these issues? Even if he doesn’t like it, the purpose of legal reasoning is to find “the law,” not “the intention of the guy who wrote the statute.” These are extremely different.
Legal analysis is definitely different from literary analysis. The goal isn’t to find the original intent of the authors, its to find “the law.” Yes, that’s reified. Yes, some people believe “the law” is coterminous with “the intent of the authors.” But there’s way fewer than you’d think, because in the world of statutes the authors are a large committee of people who hate each other, who disagree, who argue for phrases that each thinks cuts the knees out from the other (and therefore each author holds different intents regarding those phrases), and who are working on behalf of a Principle (the citizenry) who imbues the law with legitimacy by collectively approving of the process and results, but who do so largely by reference to the text, not the intent.
The law has a purpose, to create rules with legitimacy, that is not necessarily satisfied by reference to “the author’s” thoughts. The predominant view seems to be that legitimacy stems from having, and following, a series of procedural law making rules that honor certain values. The various interpretive techniques that Fish dismisses as being all the same all view legitimacy in different manners.
Further, the law has practical concerns which normal literary interpretation does not. In general, finding the intent of an author is a rather speculative task, and people often disagree. I’m sure everyone here is aware of novels, for example, on which there is a wide array of opinion regarding the intent of the author. If intent, but not precedent, is to be our guide, this means certain laws must necessarily be in flux. There are practical downsides to this. Long term planning becomes difficult, as changes to the supreme court will have greater effect on the state of the law. In addition, those procedures which create legitimacy are undermined. Why amend the constitution (a difficult task) if you can just wait a few years, and file a lawsuit under a new court? This places the court in the position of making constant edits to “the law,” ie, the actual real life rules people have to follow. This is arguably already the case. Its probably best not to make it worse, even if we do so for reasons which are philosophically more pure than current ones.
Anyways, that’s probably not entirely clear. Suffice to say that legal interpretation regards concerns of political science and politics that are less relevant, or differently relevant, to interpretation of text. Fish dismisses them all with a waive of his hand.
Just to clarify: the example of self-defense is my own, not Lott’s.
What Lott actually writes:
“[WBM’s] neopragmatist version of negation just says no to any account of American culture which would make reference to raced and ethnic identities. Michaels briefly pokes fun at Schlesinger’s liberal nationalism in *The Disuniting of America*, but *Our America* promotes a default nationalism in trumping racial and ethnic struggles with American citizenship’s rights and responsibilities. Even this, as I say, is only implied—Michaels is too cynical to allow himself to be *for* anything.” (123)
“Michael’s critical strategy is a perfect match for his uncritical politics. In familiar new-historicist fashion . . . Michaels collapses distinctions between disparate discursive domains . . . to demonstrate their immanent conceptual similarities, anaologies, or parallels—neopragmatist homologies, as it were . . . Michaels indeed uses white-supremacist Stoddard as a sort of evil genie; deep into the book, I came to expect Stoddard to materialize whenever any pluralist simpleton made the case for anti-assimilation, as though devotion to ethnicity or race were interchangeable with white supremacy . . . In other words, if you invoke any notion of race in the cause of antiracism, you are racist.” (124)
“Conceptual similarities often underlie antagonistic positions, but this hardly means that the positions are indistinguishable or that we should care more about conceptual underpinnings than political conflicts.” (125)
“In Michaels, ethnics and other pluralists interested in indigeneity are nativists for their commitment to difference, while the fascists (not only Pound and Eliot but Hitler) elude the charge, since their commitment to a supranational ideal of civilzed culture depends upon an appeal to nonnegotiable standards in which pluralism never comes up. (Michaels is surely tickled by the irony that Pound would wind up less ‘racist’ than, say, Countee Cullen because Pound’s investment in a culture higher than that of the mongrels wasn’t explicitly rooted in race.)” (125)
I don’t think Searle poses a serious challenge to Knapp and Michaels. In fact, a close reading of his essay suggests that he agrees with them on the fundamental point.
Searle thinks that there are only two things that could be meant by “the meaning of a text”:
1. sentence meaning - which depends on conventions of language, but not on the intention of the particular speaker/writer
2. speaker meaning - which he identifies (roughly) with intention of the speaker/writer
He argues that intentionalism is “trivially false” about (1) and “trivially true” about (2). (I don’t have the Searle in front of me, but this is pretty much a direct quote.)
He is no doubt right to say that Knapp and Michaels were careless about the distinction between (1) and (2), and that they are wrong about (1). But in conceding that they are “trivially right” about (2), he actually accepts the doctrine of “Against Theory”, that literary-critical interest in “the meaning of a text” can only be interest in the author’s intention. After all, it is clear that literary critics are not (for the most part) concerned with sentence meaning, or meaning-(1), which their readings or interpretations take for granted. If Searle is right that the only alternative is speaker meaning, that this is a matter of the speaker/writer’s intention, and that this identity is “trivial”, then his conclusion is exactly the same as Knapp and Michaels’. All he’s done is to iron out a wrinkle in their argument: their carelessness about sentence and speaker meaning. Searle’s essay contains no “devastating blow” to their intentionalism about literary interpretation, and in fact defends it.
The real issue here is one that Searle apparently fails to see: whether there is something else to mean by “the meaning of a text” than (1) or (2), and whether literary criticism is concerned with anything worth calling “the meaning of the text”, to begin with. Knapp and Michaels say “no”. Searle does not even raise the question.
Kieran Setiya:
Is it feasible to define ‘meaning of text’ operationally, i.e., as the output that results after applying a(ny) particular set of interpretive techniques to a text ?
Kumar
>I could be wrong about this, but I don’t think anyone’s spoken in quite this manner since the early twentieth century heyday of legal realism in the U.S.
This isn’t such a strawman. The “living constitution” was the standard constitutional interpretation when I went to law school in the early 90s. This makes sense. The constitution doesn’t mention a “right to privacy”. If you want to have a constitutional “right to privacy”, you need the “living constitution” interpretation.
Plus, the legal realists were right.
I see your point, Kieran. But Searle’s distinction still seems significant to me because K and M argue that it’s inherent to language that there can’t be meaning without intention. The pay-off of that argument is to disallow the various kind of reader response attitudes (spoken for on this site occasionally by Matt, Ray, and Luther Blisset) that stress a reader’s interpretive freedom with sentences. K and M want to argue, I believe, that whatever readers with that kind of attitude are doing, they aren’t actually reading and whatever they see in a text it’s not meaning. The virtue of this strong argument, in turn, is to say (contra Hirsch) that we don’t need anything like reading protocols to concentrate people’s interest in a writer’s intention. From K and M’s perspective, there’s no legitimate choice between being interested in a writer’s meaning and a reader’s interpretation--and, of course, nothing like the idea of the intentional fallacy. People who read as the idea of the intentional fallacy would encourage are just making nonsense.
I think Searle’s distinction damages that argument. There’s nothing inherent to the structure of language that requires us to be interested in a speaker’s intention to generate meaning. I think John Holbo would be a lot clearer and more forceful about this point, but I haven’t yet read his completed dialogue.
Joe O, it’s not just that Fish invokes the living constitution that provoked me, it’s that he equates it with rewriting (as opposed to interpreting) the Constitution and claims that people who speak about a living Constitution say, “Why should we be constrained by the dead hand of the past?” But there’s no necessary conflict between the idea of a living Constitution and constitutional constraint. I’ve never heard an advocate of a living constitution say it should impose no restraints or that they’d like it to be a tabula rasa. I think Patrick’s dead right.
Patrick, I totally agree. The striking thing about Fish’s argument is his (unpragmatic) complete lack of interest in generic distinctions.
LB, I’m a big fan of Eric Lott and owe many a debt to him, but I have to disagree with you strongly about that review. I don’t think it’s one of Lott’s finer moments. The review doesn’t amount to much more than saying Walter Benn Michaels is a bad guy because he has different values than I do. It doesn’t give attention to whether Michaels’s account of American modernism is right or wrong or whether his argument that the invocation of culture (in the sense of group identity) is typically dependent on an assumption of racial inheritance that it disavows. Lott just says, true or not, Michaels’s claims are politically bad--a classic example of political invective replacing argument.
Note in the passages you quote the charge of cynicism, the claim that Michaels promotes a default nationalism, the charge that his politics are “uncritical.” These are all baseless and prejudicial claims. If I remember correctly, the point about Pound too is just wrong, and the product of a tone deaf prosecutorialism. Michaels doesn’t say that Pound, Eliot, and (a parallel for him) Lawrence weren’t invested in racial inheritance much in the way the American modernists were--only that (in all liklihood for reasons of context) they weren’t racial pluralists the way American writers who obsessed about America in the twenties arguably were.
Unfortunately, in a piece that amounts to little more than saying, these writers are bad and don’t deserve our respect, Lott doesn’t actually rise to the occasion of defending his political preferences. At the end of the day, it would be completely fair for him to say he thinks Michaels’s political preferences are misguided, and even that he believes those preferences have affected Michaels’s view of literature. But in that case, he should make some dispassionate effort to say what be believes the virtues of cultural pluralism to be and why they’re preferable to whatever Michaels stands for. Instead, “raced and ethnic identities” are just an unquestionable good in his view and anyone who “says no” to them is automatically regarded as a cynic. That is weak. In my view it adds to the evidence that, as Michaels charges, American literary academics have grown allergic to argument.
Here is scalia on the Living Constitution. He is pretty indistinguishable from fish to me.
It is not that scalia and fish are proposing an unreasonable interpretive strategy, it is that they are proposing an interpretive strategy that will have bad effects. An interpretive strategy that will lead to a restriction of personal rights: a rollback of gay rights, contraceptive rights and a repeal of Roe v. Wade.
If it wasn’t for the bad effects of the scalia/fish interpretive strategy, I would be sympathetic. It isn’t a joke or somehow incoherent. It is very reasonable. They are the same type of arguments that FDR supporters made against the Lockner era court.
The ad hom’s ("cynical", “in other words”, “is surely”, etc.) do weaken the critique that Lott is making -I’m down with his claims that Michaels arbitrarily chooses reasoning that will support the most provocative conclusions, but Lott seems to be doing the same thing (not with reasoning but with explanations).
Speaking of co-opting the arguments of others, isn’t this critique of Michaels (perhaps thanks to the author’s space limitations) largely a rehash of points made in the original Against Theory forum?
Joe wrote: “It is not that Scalia and fish are proposing an unreasonable interpretive strategy, it is that they are proposing an interpretive strategy that will have bad effects."
Yikes. That statement strikes me as casually elitist and contemptuous of democracy.
The U.S. Constitution once was, and widely still is, thought to embody foundational social principles approved by the majority of society. Joe, meanwhile, treats those same principles as if they’re mere linguistic “tokens” panting to be exploited by whoever happens to find themselves confirmed to the Supreme Court.
Joe seems to presuppose (and do correct me if I’m wrong about this, Joe--because I’d feel better if I was) that the Supreme Court is actually just a covert Legislature of Nine merely masquerading in flashy “interpretive” drag.
If the role of the Supreme Court is simply to produce beneficial social strategies--regardless of the intent of the framers of the Constitution and, lest we forget them, their constituents--debates about the “meaning” of that seminal social compact, its interpretation, and the wider democratic intent it was intended to embody, all become irrelevant.
Joe seems to assume that a majority of Americans--should their views ever be seriously entertained by the judiciary--would criminalize abortion, throw homosexuals in prison, and perhaps even dustbin the fruits of the Enlightenment altogether. The Constitution, recall, was fashioned to represent in written form the views of the representatives of the majority of voting Americans. As such, it was (wisely) subject to alteration via amendment: when and if those views change.
If you have no faith in the collective wisdom of American citizens you’ll naturally prefer an ideologically acceptable legislative cabal of “Supreme Sages” over the plebeian specter of nine fallible lawyers attempting to interpret the written intent of the majority of their fellow citizens during a specific time and place.
But if and when you do decide to prefer the former over the latter, you also surrender any claim to being a democrat.
joe o
Actually, Scalia is pretty different from Fish. They both hate the “living constitution” and claim that its just a cover story for judicial intervention into the meaning of the constitution, but Scalia is at least a few steps ahead of Fish in terms of what to do about it.
Scalia is smart enough to know that “intent of the authors” is nonsense. In fact, Scalia is known to refuse to look to legislative history when interpreting the law. Legislative history is the set of writings and documents detailing the thought processes of the legislators as they pass a bill, so if your goal were to find the intent of the “authors,” that’s where you’d go. I’ve heard Justice O’Connor remark that “certain people” will not even sign opinions that cite legislative history- I think she meant Scalia.
The reason he doesn’t look to legislative history is because he acknowledges that the law is made up of many different people, some who contribute to the legislative history, some who do not. If 300 congressman vote for a bill, but only 3 write comments in the legislative history, to Scalia that means that a citation to the legislative history risks ignoring the equally valid intents of the other 297.
So what does he do instead? He looks to the “meaning at the time the law was passed.” This references things like the common meanings of words at the time the law was passed, the common view on the law’s meaning at the time it was passed, how it was implemented and whether its implementation was uncontroversial at the time it was passed, and so forth.
Now, Scalia’s still a hack, but that’s not worth going into. Suffice to say that his “originalism” in practice is close enough to legal necromancy in which he summons forth the zeitgeist of the american people of 1776 and attempts to interrogate it on its opinion the constitution. This is difficult to justify when, as you apply this strategy, you discover more and more than such an opinion really doesn’t exist on the interesting questions. Every disagreement in the authors of the constitution was mirrored in the views of the american people, and in many cases there simply was no opinion. But, as a justice, you have to decide the case somehow. You can’t punt it back with an “eh, I dunno.” So you clutch at what threads you have, tenuous as they may be. This is where the allegations come in that Scalia engages in large scale judicial activism.
Eventually, Scalia will realize that the phrase “the constitution does not render one clause a nullity by the operation of another.” is really just the same as “we will presume that the constitution was not intended to render one clause a nullity by the operation of another.”
Once he realizes that the intention in the second phrase is merely window dressing, and this whole argument is really just structuralism, then, and only then, will Scalia obtain enlightenment.
I don’t think calling a scholar, as represented by his work, “cynical,” is an ad hominem attack. What Lott describes as cynicism is WBM’s purely logical and conceptual critique of *political* strategies without any constructive element. Another reviewer has described WBM as a consistently “against” critic; that is to say, he is among the most rigorously analytic thinker, but he never really *takes* or posits a positive position (I believe this other review was in *Theory and Event*).
I agree, Sean, that Lott’s review isn’t as substantial as it could have been. At the same time, he covers four texts in about 20 pages (with all sorts of pictures strewn throughout by the editors), and he centers not on WBM’s literary discusses (which he calls “brilliant” and “acutely suggestive") but on the wider issue of race and identity. That seems fair to me, especially given the fact that *that* would be the direction WBM’s work has gone in since *Our America*.
I do think Lott offers some substantial criticism of his own:
a) that behind *Our America*’s critique of appeals to identity and cultural tradition is a longing for a strictly national engagement in politics
b) that WBM ignores the “affective stances” behind various discourses and instead treats them as purely logical statements. If you believe x, then you must also believe y and z if you aren’t to be contradictory. But of course, politics (and the rest of human existence!) *is* contradictory, and only a robot doesn’t revel in holding opposing ideals.
c) To quote Lott, “Caught in a racist bind, are you just going to claim race is an essential mistake or (as you do) claim some racial territory of resistance? The question is moot for Michaels . . .” (125). Thus, Lott claims that WBM “often misdescribes political investments as predicaments of identity” (126).
There is a bitchy-ness to Lott’s review, but in his defense, everyone but Albert Murray is at the receiving end. I do think a more “WBM-style” critique of WBM is necessary (although one without his use of homology, because then a critic could equate any critics of anti-racism, from the left or the right, with each other, and WBM and Thomas Sowell will be bedfellows in no time).
Such a critique would need to begin with WBM’s atomistic vision of the subject and of culture itself. If we think of culture as a langue/parole sort of phenomenon, then identity as “what one does” could still entail other practices that one isn’t doing (just as speaking English means that one has available an infinite number of utterances beyond those one is uttering at any given moment). This is still anti-essentialist, but it means that, say, when one identifies as Jewish, that means that one may only perform one out of a vast set of cultural practices (say, Passover seder) but one still identifies with the entire set of possible, historically-available Jewish practices. This then brings in William James’s distinction between live and dead options, and helps to explain why, for a cultural Jew, going to synagogue is more of a live option than, say, going to the Russian Orthodox Church services. All of which is to say that cultural practices aren’t distinct, positive “entities” (as WBM would have it), but that they are a mutually informing system of differences, like a language (something that WBM gets wrong in his critique of Derrida: D isn’t an upholder of some material aspect of language, but rather he uses its partial materiality to undermine the belief in the pure ideality of language).
But as I said before, I think WBM’s critique of identity, race, and ethnicity is powerful, and I would like to see more intellectuals actually engage his work. But this is a problem perhaps of discipline as well. *The Shape of the Signifier* doesn’t reference, say, Gilroy’s *Against Race* or Amy Guttman’s work on identity politics, and sociology/political philosophy is where the real work on identity is going on.
Sean,
Thanks for the reply. My point is that, for Searle, it is only *sentence meaning* that is independent of the author’s intention, and that this is a very small concession for K&M to make. Sentence meaning does not include metaphor, irony, allusion, implied character, theme. According to Searle, all of those things, the standard objects of literary interpretation, do depend on the author’s intention. Since “reader-response” criticism is not just about sentence meaning, Searle agrees with K&M that there is nothing (or, at least, no “meaning") for it to be about.
In order to damage the intentionalist argument, we would have to show (as you suggest) that other aspects of meaning are independent of intention. I agree that this is possible. But Searle does not attempt to do it, his arguments give no support to it, and it is a possibility that he explicitly rejects.
While interesting, per se, I do not find the analysis of textual strategies, either as commonly articulated in legal communities or as parsed by Fish, sheds much light on the USSC’s practice of Constitutional adjudication.
Fish does hint at what I take to be a significant difference, however, which is the preference in the American legal community for law over equity.
Fish writes:
“Rewriting is what is being done by those who talk about the ‘living Constitution’ and ask, ‘Why should we be constrained by the dead hand of the past?’ This makes no more sense than asking, ‘Why should we be constrained by wills and contracts?’”
Fish’s question is rhetorical, of course. I imagine the intended reader response to be something like: Yeah, what he say! Snap! You go dawg! Q.E.D! Quite! Just imagine if we were not constrained by wills or of contracts? Heavens! Chaos would ensue! That would not make any sense, at all!
Fish does not seem to expect the reader to pause here and ponder whether we ought to execute the wishes of dead people or to say: oh, but wait, the courts will not enforce certain parts of wills or certain contracts, and thank goodness for that. Some types of covenants and wills are prohibited by law, of course. But also, courts may nullify parts of instruments or laws when to enforce them would create an unjust result.
When Fish, answers his own ‘rhetorical question,’ he takes sides in this age-old law versus equity dispute (e.g. Shylock versus Portia), and he tellingly ‘rewrites’ the duo of ‘certainty and predictability’ as ‘law and predictability.’
So how come courts don’t just say ‘caveat emptor’ or ‘always read the fine print’ or ‘hey, it’s their money?’ How come they sometimes refuse to enforce some wills and contracts?
This power of the court derives from its equity powers, the duty to see that in every case, justice is done, because American courts are courts not only of law but of equity and because “Equity is a court of conscience,” and “Equity does not suffer a wrong to go without a remedy.”
Messy business, equity, modern legal theorists think. Very messy. Not very scientific. No telling what a judge will do on any particular day. Very, ‘uncertain.’ Very ‘unpredictable.’ Very bad. Not like the law. Law is certain, predictable. “Hard cases make bad law.”
But then vagueness and uncertainty are inherent in the conflicts which bring parties before the courts, especially the appellate courts. Appellate judges can, do, and must ‘legislate’—that is, create new law--from the bench.
Scalia claims to be constrained by the original meaning of the Constitution, but Scalia’s own inconsistencies in practice show that his methodology is not dispositive. That is, I take his reading strategy to be a rationale, not his true reason.
Scalia does substitute a narrower, contemporary, law-favoring, ‘legal realist’ jurisprudence for the more broadly understood ‘law and equity’ ‘natural law and rights’ jurisprudence of judges in the time of the founders. A preference for interpretations and remedies that privilege ‘certainty and predictability’ over ‘equity and justice’ is, however, an anachronism, and one can argue that some ‘strict’ readers abdicate a key role of the judge in the balance of powers; the duty of the judge to bring his or her personal sense of justice to bear on the case at hand.
The pressure of trying to tweak the law to craft a just result in real cases and controversies is what makes Anglo-American case law great, it is why the USSC does not issue advisory opinions, it explains why justices such as Justice Souter sometimes disappoint their sponsors and why Justice O’Connor sometimes seems wishy-washy. O’Connor has been neither unable nor afraid to make decisions; she has been willing to make hard choices (and willing sometimes to look the fool and to suffer Scalia’s ingracious and unmanly taunts and rebukes. By the way, if any A student in Con Law at any elite law school can tell you how Justice Scalia will vote on any given case and give a fairly good accounting of his rationale, then who is simple-minded?)
Scalia is the one without any brass. He blithely shrugs his shoulders at a bad result and with a wink and a nod say “lookit, if you don’t like the law, change it. For us to change this would be undemocratic.” Call me a cynic, but I doubt he loses a lot of sleep over being undemocratic (n.b. Bush v. Gore).
So, back to Professor Fish: Should we be constrained by the ‘dead hand’ of the past? Not when the result would be unjust, when it would shock the conscience. Whose conscience? The judges’. That’s the job. Don’t want it? Don’t serve.
These folks with the super-duper consciences we trust to make these decisions for us are nominated by the President and confirmed with the advice and consent of the Senate. In vetting these candidates, Senators are under different constraints than judges; they may balance the dictates of conscience with the dictates of vox populi. Smarts and a good resume are a good start for a nominee, but anything goes, really: reading strategies, judicial temperament, personal philosophy or religion, video rental history, publications, history of electioneering, enemies, public opinion, what-have-you. (The evidentiary rules are somewhat more relaxed in the Senate than in the federal courts.)
And, of course, the Senate may consider how a nominee might alter the future decisions of the court, as well. Nothing undemocratic there.
Kieren, that was precisely my point to John in the discussion of the first draft of his “Poetics and Problematics” essay, where I tried to say words to the effect of: while you can conceivably have sentence meaning without intention, you can’t have artfulness without it. Since I’m a Benn Michaels partisan, I was glad to believe too that conceding sentence meaning would be a small concession for K and M to make (even though, as Searle notes, the rhetoric of Against Theory so emphatically rules the possibility out).
Apparently, though, that’s not the way K and M see things. I believe they have new work coming out that effectively retracts their concession about sentence meaning. I hope to read it and blog about it soon. I suppose that one reason they might care about this is that, if there is sentence meaning, it will in fact be possible for readers indifferent to authorial intention to discover things like irony, etc. in a text. The meanings they discover will be the readers’ meanings, of course, and effectively a misinterpretation of the author’s meaning. But that won’t mean that they aren’t describing meaningful language. Nor, I think, would it effectively mean that, say, a reader’s interpretation of found poetry would be creating a new text rather than simply misreading an existing one.
In any case, I should mention that John has, I believe, a completely alternative view: that in fact implication can be a property of a purely formal language. But I haven’t digested his essay and don’t know that I understand it.
Luther, I simply don’t recognize many of the things you say are the case about Michaels--his alleged atomism, say, or his reference to entities. The whole langue/parole thing, too, escapes me, but if I understand what you say correctly, it’s no challenge to Michaels’s argument. If the things we do and say imply other possibilities, that in and of itself would be no reason to claim that, say, Jewish and Russian Americans have distinct cultures to which they have special privileges and obligations by virtue of their parentage.
You have a pretty high threshhold for the ad hominem. I think by pretty much every one else’s definition, calling someone cynical counts. I’m not sure either why equal opportunity “bitchyness” is much better than narrowly targeted ad hominem. If it means reading carelessly and placing invective over argument, it’s shoddy either way. In any case, the claim that that “behind *Our America*’s critique of appeals to identity and cultural tradition is a longing for a strictly national engagement in politics” is both a complete mischaracterization and an argument about alleged motive rather than about the claims of Michaels’s book. To use the term raised by Mark, it’s a genetic argument. Of course, sometimes ad hominem and genetic arguments are warranted, but a fair book review should explain why, not begin with the charges.
A critic of Michaels could legitimately say about some aspects of his work, that it’s not especially concerned with the affective (though that would miss the many places he emphasizes the emotional allure of the ideas he describes) or perhaps other significant aspects of the work. But, emphasizing one aspect of a work at the expense of another is usually described as a limitation whose consequences can be evaluated, not as a mark of political illegitimacy. Nor is there anything in Michaels’s arguments that says people cannot experience contradiction or be devoted to irresolvably incompatible desires. There’s no reason, though, that a critic shouldn’t identify where such contradictions lie--especially if, as Michaels (reasonably, I belive) contends, a goodly amount of recent literary criticism is much more interested in muddying than in clarifying distinctions.
I think, btw, that’s the far more plausible explanation for the reluctance on the part of some literary academics to engage with Michaels. It has nothing to do with discipline. Michaels wins most of his arguments. It’s a lot easier to throw back-handed compliments at his brilliance and to impugn his motives than to actually argue against him.
I share Patrick’s view of Scalia (and will be glad to retract my too hasty overidentifcation of him with Fish). It’s not the case that, as Joe says, the problem with his ideas is that they’ll have bad effects, it’s that those bad effects are in no way, as Scalia argues, necessitated by a reasonable view of Constitutional interpretation.
dandragna,
The supreme court is an anti-democratic institution. Sometimes the majority tramples on the rights of the minority. In a pure democracy, there is nothing to stop this. In the US, the supreme court is sometimes able to stop it.
Some states made gay sex illegal. Thus gays could and were put in jail for for having sex. These laws were enacted through democratic methods, and presumably were supported by a majority of citizens in the state. There are a lot more non-gay people than gay people.
The supreme court, under a “right to privacy” interpretation which scalia/fish strongly disagree with, overturned the state law. Thus, the scalia/fish interpretation would have the bad effect of keeping a bad law in place. Do you disagree?
Sean, I always thought ad hominem attacks took the form of:
(a) Jim favors abortion
(b) But Jim is a glue sniffer
(c) So abortion must be wrong because Jim is a glue-sniffer
To me, Lott says:
(a) *Our America* criticises well-intentioned anti-racist movements by equating them with racists
(b) *Our America* doesn’t offer constructive advice on how better to combat racism
(c) *Our America*, and hence WBM, is cynical
This is the difference between saying “Jim got bad grades so his ideas must be dumb” and saying “Jim’s ideas are dumb so Jim must be dumb.”
In “Race into Culture” (Critical Inquiry, 18.4, Summer 1992, 655-685), an article version of *Our America* arguments, WBM writes, “the ‘something stronger’ required to derive our beliefs and practices from our identity—required to connect who we are with how we should behave—has historically taken the form of race.”
This is where I would intervene by seeing culture as a langue/parole phenomenon. Our identity is formed not only out the beliefs and practices we currently perform, but also by the beliefs and practices that are “live” to us, that we could articulate out of the same pool of options, the same cultural langue, as others of our beliefs and practices. So in this way, we can derive beliefs and practices from identity, and not simply vice versa.
This is also to say that the seemingly unified black Southern rural culture Albert Murray describes gives far different resonances to any individual belief or practice than, say, a white Northern urban culture. For example, Scooter, the Murray persona in his novel *Train Whistle Guitar* never goes to church, but his ability to read and hear the speech around him is informed by certain black preaching styles. So that when Scooter “signifies,” it resonates with other aspects of the culture around him. In contrast, a white kid might read the MTV *Snaps* books and tell “your mama” jokes, but his practices will resonate with an entirely different set of practices.
Let’s imagine that these two kids only actually ever performed one action: signifying. For Walter Benn Michaels, we have no identity prior to our beliefs and practices, and so we don’t have privileged access to other beliefs and practices on the basis of something called our “cultural identity,” because our “cultural identity” is nother more than what we do and believe at any given moment. This is why passing makes no sense to WBM: if I act white, and then I act black, I have changed, not repressed or hidden anything. OK: so we have these two kids limited to one action. Now, in “Race into Culture” WBM rejects any notion of cultural theft or appropriation. If the white kid starts rapping, it’s no different that the black kid’s rapping, because rapping is a practice isolated from other practices and not tied to anything like “roots” or “soul” or “identity.”
What WBM neglects is the way beliefs and practices intersect and call other beliefs and practices into presence through opposition. The only way WBM can say that the white kid’s rapping is not “theft” is to see the practice of rapping as purely material and always open to re-articulation (a position he critiques in *The Shape of the Signifier*). Otherwise, if we really are to pay attention to intention, we can say that there’s a difference between “wearing beads” and “being a Mashpee,” a difference WBM refuses to acknowledge in *Race into Culture*. Wearing beads *means* something totally different when different people do it, and what it means is not restricted to what one person “intends”—intention is social as well as individual. Similarly, when some black kids rap, they are invoking a whole set of cultural beliefs and practices that *they don’t necessarily believe or practice at that moment* but which the vast majority of white kids’ rapping can’t invoke. Much of this has to do with “the presence of the cultural past in the individual present,” another belief that WBM rejects in *The Shape of the Signifier*, in his discussion of *Beloved*. I knew someone who could flawlessly tell the difference between a white and black jazz pianist. She claimed it had to do with “soul,” but in our argument, we saw how what she was recognizing was traces of other black cultural practices in the black piano playing. Because these traces were as much unconscious and conscious, we can’t say they were part of our culture in WBM’s sense: “ . . . that something belongs to our culture, cannot count as motive for our doing it since, if it *does* belong to our culture we *already* do it and if we don’t do it (if we’ve stopped or haven’t yet started doing it) it doesn’t belong to our culture” ("Race" 682-683).
Here we see the isolated idea of subjecthood WBM adheres to. Despite his plural subject ("we"), WBM is taking about an individual—the royal we. What he ignores is that culture is a group phenomenon—the very idea that there is a self prior to the group is itself a group-cultural belief. So if I do something while another member of my culture doesn’t, that doesn’t mean that practice is only part of my culture—because then there’d be as many cultures as there are people. WBM’s argument makes more sense for practices that a culture has completely abandoned and then later recuperated. But even here, there’s no doubt that, like the black piano players, these historically past cultural practices survive in traces in historically present cultural practices.
Two final points. The first regards WBM’s assertion in *The Shape of the Signifier* that belief in the materiality of the text necessarily leads to belief in experience over meaning. That’s patently wrong. Even if—as I do—one believes that a literary text is imbued with intention, one still must admit that the critic has no access to that intention. This is why many critics simply write off intention entirely (as when Hegel, in *The Phenomenology of Spirit*, writes that we don’t need to even deal with Kant’s noumena because, if we can’t know it, we also can’t know it exists or not, and so we can bracket it off entirely from a phenomenological investigation).
So I have a text—right now I’m struggling with some Hawthorne short stories for my Toni Morrison chapter—and I know Hawthorne *meant* something by his symbols (say, the may pole in “The May Pole of Merry Mount"). But all I can do is offer an interpretation. My interpretation will be different from others, based on what I accept as evidence, on what other texts by Hawthorn I think may help read this one symbol, based on my own attitudes toward gender and culture (i.e., the history of criticism of this story is very much the history of American love and hate for the Puritans described by the story and the Puritan heritage these critics still see at work in the present), and so on. Which means we’re back to experience and subject position, even though at no time did we think about the text’s materiality. QED. Or whatever.
Last point: WBM also asserts that identitarian politics have replaced class politics. What he fails to acknowledge is that class politics are themselves reduceable to identity politics. The idea that Jim’s ten cars are unequal with my one car—or the idea that profits are the workers and not the investors or the creators—are a matter of perception or experience. What WBM really has a problem with is not some odd binary between experience and ideology (a difference WBM never really defines in *Shape*), but with cultural relativism itself. And one can be relativistic about ideologies as much as one can be about subject positions. What WBM really wants is debate—and I agree. He aruges that the idea that “my culture is only better because it is mine” is the root of our failure to have true debate. But of course, I know no one who really thinks that. One needn’t be an essentialist to believe that “my culture is better for me because of what I want to accomplish and how I want to live,” nor need one then also believe that “my culture is better than your culture objectively.” The Protestant work ethic is the best cultural technology I’ve ever seen for making money. The real question is not “Is Protestantism better than, say, Sunni Islam?” but rather, “What do you want to do with yourself and how do you want to relate to others?” Debate here is still open, even if we’re talking about experience and subject position.
In *The Shape of the Signifier* (17), WBM criticises identitarianism
That last line should have been deleted. Apologies for it and the countless other typos!
(Another final thought: the conflict between Alexandra and her brothers in *O Pioneers!* about whether it’s the “idea man” who owns the land or the workers is a perfect example of what I discussed above in my last paragraph. In the novel, this argument is at once cultural (Alex is a pioneer and a pioneer is American and an American is someone with practical imagination) as well as ideological (the brothers are Populists). So can’t we simply say that ideology, experience, culture, and ethnicity are all forms of the same social process?
I knew someone who could flawlessly tell the difference between a white and black jazz pianist. She claimed it had to do with “soul,” but in our argument, we saw how what she was recognizing was traces of other black cultural practices in the black piano playing. Because these traces were as much unconscious and conscious, we can’t say they were part of our culture in WBM’s sense: “ . . . that something belongs to our culture, cannot count as motive for our doing it since, if it *does* belong to our culture we *already* do it and if we don’t do it (if we’ve stopped or haven’t yet started doing it) it doesn’t belong to our culture” ("Race" 682-683).
WBM’s response to this would be, simply, that “race” doesn’t exist, and therefore what your friend discussed was the legacy of an arbitrary cultural distinction with material effects, in this case a recognizably “black” style. However, since race doesn’t exist, your friend’s confused an historical contingency embedded in a cultural tradition which has, for no logical reason, become associated with a cultural categorization in which the arbitrary facts of history have been naturalized, i.e. “race.”
He would then go on to argue that that culture doesn’t exist either, that what we call “culture” is act of performing the culture, and that the claim that a fictional entity