Tuesday, July 19, 2005
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.
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.
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 ?
>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.
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.
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.
“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.
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 called “race” is bound to another fictional entity called “culture” is not only the source of the arbitrary injustice built into our social structure, it is also what will prevent anyone from ever rectifying that injustice to the satisfaction of all (or any) involved parties.
Luther, saying someone is cynical typically implies that they are motivated by base considerations that they conceal. Or that they claim that other people’s beliefs are motivated only by base considerations. There isn’t much evidence that either is true about Michaels. He clearly is strongly dedicated to his beliefs and recognizes that others he disagrees with are dedicated to theirs, even if he may also think those beliefs are incorrect or misguided. What Lott has really said is: Michaels does not share my understanding of things, and (although Lott does not consider Michaels’s account for his beliefs, preferring to ascribe them to an unstated motivation) that Michaels is for that reason a wholly unpalatable individual.
Our America does not in fact criticize well-intentioned anti-racist movements. It talks about the beliefs implicit in the ideas of a group of writers who shared an interest in the developing theory of national or racial culture. Yes, it notes provocatively that there are parallels in the way that, say, Langston Hughes and Lothrop Stoddard refer to culture. But that doesn’t necessarily mean that Michaels believes that there’s a moral or political equivalence btw them. That’s an issue he simply leaves aside. Now conceivably you could say he shouldn’t leave it aside. And you might even charge him with overemphasizing formal or logical similarities at the expense of contextual differences. But that’s not what Lott appears to object to. He objects to the comparison being made at all.
It’s only in the context of the American academy of the late twentieth century, I think, that noting a shared interest in inherited culture among politically opposed writers could become so controversial. The writers of the Harlem Renaissance frequently made no bones about their own belief in the reality of racial inheritance. (E.g., Hughes: the eternal tom-tom beating in the Negro soul.) But for the late twentieth century academic, anachronistically enough, that’s an embarrassment, with the result that people tie themselves into knots. I think some of those knots are evident in your post.
It’s certainly possible to believe that some people deserve authority over or ownership of certain practices or ideas by virtue of their inherited identity such that when white kids rap you could call it stealing. (I personally find that a repellent belief, and I think it should be noted in this context that it’s quite possible to describe what seems offensive about the history of the success of white musicians at the expense of black musicians without describing it as cultural theft). What you can’t do is simultaneously maintain that those people don’t have an inherited identity—i.e., be an anti-essentialist. If you believe that people have a privileged relation to practices or skills or whatever because of their race, you can’t logically believe at the same time that their race is non-existent. That’s Michaels’s main point in this area, and it’s a simple one. (It was made before him quite clearly by Appiah in the piece on DuBois in the Race, Writing, and Difference volume that is reprinted in In My Father’s House.)
Your idea that we all have a repertoire of beliefs and practices that we can draw from actually underlines this point. Logically, that repertoire is potentially endless, since I can conceivably always learn new things. (To be more concrete, there’s patently a huge overlap in the “live” possibilities available to black and white American kids, even if systematic injustice means that there is nothing like equal access to the whole range.) Any boundary we draw will therefore have to come from somewhere else—not be product of the repertoire itself. Where does it come from in appeals to cultural identity? Where do you get the authority to say to someone: you can do this, but you can’t do that; you should do this, but you shouldn’t do that? There are a number of possibilities, of course. (Your criteria could be, as you suggest at the bottom or your post “what I want to accomplish and how I want to live”—which, of course, doesn’t require anything like racial identity at all.) But so long as you’re talking about cultural identity, you’ll need something like race to perform the normative task.
Yes, Michaels believes that the recent obsession with cultural identity not only systematically obscures its reliance on the racial categorization that it disavows, he also believes that this is unfortunate to the degree that a concern with difference has been emphasized at the expense of a concern with inequality. And so, yes, he thinks identity politics are an alternative to class politics. I’m afraid I just don’t understand the rest of your paragraph, but I can tell you pretty confidently that Michaels would in fact not be convinced that the difference between 10 and 1 cars is a matter of perception. He’d say it’s a fact, and a material inequality, and he’d be right.
Joe, you wrote: “The supreme court is an anti-democratic institution." You leave the impression that that’s a good thing and, further, that it’s always been so. But as Thomas Jefferson noted to Edward Livingston back in 1825: “[The Supreme Court] was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”
Jefferson’s reservations about Marbury v. Madison aside, I submit that the Supreme Court remains a democratic institution so long--and only so long--as its members dedicate themselves to parsing the intent of the majority of their fellow citizens as embodied (albeit imperfectly) in the U.S. Constitution. Contrary to the above claim that inquiring into original intent is a form of “legal necromancy,” the Constitution has remained as it has for so long by the persistent consent of the majority. (Or else those rights and clauses would be repealed or amended.) The Constitution certainly is a “living” document, but those who continue to replenish its life are the People--rather than the judiciary. It’s the people who did and will decide whether it requires revision or elaboration. Unlike many other texts, the Constitution is a document with which we’re each complicit. If not as original drafters, then as editors-at-large. The option to leave it intact or alter it remains always at our disposal. If we’re every really uncertain about what some particular clause means, or how far it extends, we can always ask ourselves again.
So, in answer to your question, I do agree that a “scalia/fish interpretation would have the bad effect of keeping a bad law in place” in the circumstances you describe. But I also believe that bad laws produced democratically are preferable to judicial despotism--benign or otherwise.
The “minority rights” you mention, after all, are neither brute facts nor judicial constructs: they’re created and sustained by the majority of the people. And until such time as those rights are revised and/or extended via amendment, they ought naturally to be interpreted as strictly as possible. (To do otherwise serves to make the document itself increasingly irrelevant.) The notion that the Constitution ought instead to be interpreted broadly, in the interests of one perceived social good or another, is itself what strips the Court of its reflective democratic virtues.
And that broad interpretive license, once granted, is entirely capable of producing far worse social effects than any bad law written by a legislature--and therefore vulnerable to public debate and repeal.
Imagine, for example, a Court stacked with fundamentalist Christians granted the same broad power to interpret the Constitution in light of their peculiar notions of the social good. Forget worrying about Roe being overturned and the question of abortion returning once again to the states: these puritanical Justices would likely set about criminalizing abortion throughout the entire country. (I’m sure they could uncover a useful “penumbra” or two justifying their creative interpretation.) Upon what grounds could you possibly object once you’ve announced that broadly interpreting the Constitution is a perfectly legitimate activity? On the grounds that this particular instance of embellishment is unacceptable, while that other one wasn’t?
I agree that both the ideological conservatives and liberals on the Supreme Court are often “activists” when it’s in their interests to be so and “strict constructionists” only when opposing opinions they find personally or politically odious. For myself, I’d much prefer that those nine sages dedicated themselves to the arduous (and perhaps even impossible) task of teasing out exactly what the majority of their fellow citizens meant (whether they agree with those meanings or not), rather than the only apparent alternative: exploiting the Constitution as a means to achieve one’s own social and political ends.
dandragna, I would have to disagree strongly.
But first, a warning, this post is poorly organized. My apologies.
First, on the general issue of democratic legitimacy- as long as the court is doing the job which is intended as theirs by the constitution, ie, the democratically passed document which founded our country, it has democratic legitimacy even if the job given to them is undemocratic.
There is a larger issue here which you seem to miss. It is not only important what the original intent of the people was regarding how a particular clause be applied. How the people intended that clause to be interpreted also matters.
Historical record is significantly more malleable than the text of the Constitution. Furthermore, in a democracy, one does not consent to be governed by the intentions of the majority, one consents to be governed by *the laws.* These being, of course, the text passed through the proper legal processes.
The intention of the people was not passed by congress and signed into law. A specific set of words was passed and signed into law. It is these words which must be interpreted, not what the public thought these words meant *after they were passed into law*. And remember, that’s the only point where the general public sees them.
That’s where the allure of structuralism, positivism, formalism, and so forth come in. They provide a means of interpreting the constitution in light of the intentions behind the clauses being interpreted, that relies upon the actual text, not on a guess as to what people thought the text meant. I would suggest reading up on these. Its basically impossible to understand how constitutional law is practiced at the supreme court by any judge at all without a grasp of these, as even the most ardently original intent based opinion often begins with a quoted legal precept straight from the formalist school of law. (Justice Thomas regularly infuriates me by claiming that he is doing original meaning jurisprudence, but then quoting a line like “no clause in the constitution will be read as a nullity due to the operation of another clause.” That’s a STRUCTURALIST/FORMALIST argument, Justice Thomas! What you’re really doing is a motley original formalism! That is very different!)
I would note that basically everyone is doing original intent jurisprudence in the soft sense of the term. The justification for structuralism is that the intention was to create a legal document that accomplished certain goals, and that specific clauses must be interpreted in light of the larger goal. The justification for living constitution types is that words like “cruel and unusual” are so interpretive that obviously they were not meant to lock in a specific laundry list of practices thought of as cruel and unusual at the time of the founding. Otherwise, wouldn’t the laundry list have just been written into the document? So if your concern is merely that the original intent of the nation not be completely ignored, don’t worry, no one is ignoring it. What’s really at stake is how to go about getting there, and to what extent is the constitution *intended* to be interpreted in certain ways.
Finally, as for interpreting broadly versus narrowly: it is not a contradiction to say that the constitution ought to be interpreted broadly *in light of the perceived social goods embodied in the clause being interpreted.* That is, interpreting the first amendment broadly in light of the perceived social good embodied by free speech most certainly does not strip the constitution of its democratic values. To do otherwise, I think, would be to ignore the *original intent* of the american people at the time the bill of rights was passed. Wasn’t the original intent to protect the social good embodied by free speech?
In short, lets say you’re on the Supreme Court, and the case before you involves the government chopping off a thief’s hands. There are two ways to look at a clause like “cruel and unusual punishment” in this case.
1: Is the punishment before the court today one which the original intent of the people of america would deem cruel and unusual?
2: What is the manner in which the original intent of the people of america wanted future courts to interpret this clause, and how does that manner of interpretation dictate the result of this case?
Under the first, you might make a credible argument that at the time of the founding, at least some jurisdictions still did this. This view would conclude that any practice not cruel and unusual at the time of the bill of right’s authoring is not cruel and unusual today.
Under the second, that would be irrelevant. You might instead note that originally terms like cruel and unusual were interpreted in light of evolving cultural practices, so you would interpret the clause through the same technique as the original intent wanted you to use. You’d look to whether such a punishment was popularly viewed as cruel, and whether it was unusual to implement it.
I think the second view is more faithful to both the original intent of the document, is more legitimate in terms of a governmental action, and in more cases that not (but not all), is probably more objective.
I hope I’ve explained these well. I’m not totally happy with this post. I think I’m repeating myself in an effort to make this more clear.
A previous post states that ´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´´.
I therefore thought it might be interesting to point out that (as most of you are probably aware) some theories of meaning distinguish between three aspects of meaning;
1) sentence meaning (roughly, dictionary meaning),
2) utterer´s meaning (roughly, a meaning that is not conventionally tied to the words of the sentence or text under consideration), and
3) utterance meaning (quoting an article by Jerrold Levinson, ´the meaning a linguistic vehicle has in a given context of presentation [...], which context arguably includes, in addition to directly observable features of the act of utterance, something of the characteristics of the author who projects the text, something of the text´s place in a surrounding oeuvre and culture, and possibly other elements as well´).
Disregarding the problematically vague reference to ´other elements´, the point is that the speaker´s meaning contains both idiosyncratic elements (utterer´s meaning) and conventional/contextual elements (utterance meaning). Therefore people like Levinson distinguish between ´actual´ and ´hypothetical´ author intentionalism. Of course, this ties into an earlier post´s comment that ´n 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´. I think that utterance meaning is an attempt to group these ´other aspects´.
"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.)”
If this objection were valid, it would certainly destroy the claim that there can be no meaning without intention. Iirc, Michaels’ response in The Shape of the Signifier is that without a covert appeal to the speaker’s intention, there are no grounds for asserting that the “sentence” is actually in English, even though it appears to be. To take Fish’s example, we would have no basis for interpreting the “HELP” produced by the waves’ natural action as an English word in preference to a word in a hypothetical language in which “help” means “go away,” “God,” or “potato.” (To the objection that no such languages actually exist, Michaels would reply that if the “speaker’s” intention is irrelevant, why should we posit that the “sentence” is in an actually existing language?)
To be more formal about it, Michaels is in effect asserting that any supposed sentence belongs to an infinite number of possible languages, and without appealing to the intentions of a speaker, there are no grounds for positing that the language it belongs to must be one that has historically existed.
I don’t know if Holbo had this counter-argument in mind when he wrote his computer example (which involved a chess-playing program and chess notation, rather than English), but if he did, then as I said originally, he needed to do further work to make it a decisive blow.
While pondering all this, it occurred to me that Borges anticipated M & K’s argument in “The Library of Babel,” and that if “Pierre Menard, Author of The Quixote” is a reductio ad absurdum for intentionalism, then “The Library of Babel” is a reductio ad absurdum for formalism (in Holbo’s sense: that the meaning of an utterance is determined solely by the utterance itself and the language to which it belongs). Of course, I’m undoubtedly not the first to have had this thought.
That does indeed sound like the latest upgrade to the argument K and M are making, Adam, and I’m embarrassed to admit that I did not recall it from Shape.
I know K and M explain this view elsewhere too, and I hope to give it more thought. Forgive me, though, if I’m just being too dense to catch its significance. I’m not sure how the claim about language choice does more than restate the problem.
Let’s say that “help” is indeed a set of letters that amounts to two different words with two different meanings in two different languages--English and language X. If that’s the case, I’ll surely need to know which language is being used in order to know the writer’s intent. No argument there.
But even if as a reader I only know langauge X and the writer only knew English, the word “help” would still have a meaning for me. It just wouldn’t be the same meaning as the writer’s. The word would still be language and it would still have a meaning--whereas K and M had argued that without reference to intent combinations of letters are not language and are incapable of meaning. (By the same token, when I turn say a business letter into found poetry, I haven’t written a new document--as Fish apparently would claim--I’ve just misinterpreted someone elses.)
Wouldn’t an obvious counterexample to the multiple languages hypothetical be simply nonsense words? (Honest, I had this thought before encountering it over at Matthew Yglesias’s site.) If the sea spits up “ghzs,” no word, no meaning. If it spits up “help,” word and meaning, even if in more than one language. Or, put the hypothetical differently. Say there’s a computer that we program to randomly generate short combinations of letters and to articulate them aurally, and that we ask some test particpants to nod every time they hear a word. If the computer generates “ghzs,” they won’t nod. If the computer generates “there,” they will. The participants won’t have the context or the reference to intention that will enable them to decide whether the word they’ve heard is “there,” “their,” or “they’re.” But they will know they’ve heard a word.
It seems to me that these two are very different sorts of argument. If Mr. Stephanides version is the one advanced by M & K, then it amounts to an argument that meaning is underdetermined without appeal to authorial intention.
The version of M & K Mr. McCann cites in his post (which, fwiw, also seems to me to what M & K argue for) argues that meaning is necessarily tied to authorial intention. In other words, far from an infinite array of ‘meanings’ for any particular combination of words, they seem to argue that there is no meaning at all in a sentence, without the use of authorial intention.
The obvious limitation to Michaels’ hard linkage of intention with meaning is that he reduces literature to meaning. Meanings themselves, of course, are only another set of (related) signs. That is to say, if it’s not the sea that has washed up “Help” but rather a castaway on the beach, we say it has meaning in the sense that the single sign “Help” means “I’m in a bad situation from which I need others to extricate me.” In this way, what Michaels calls “interpretation” is inextricably tied to what he opposes to interpretation: experience. The possibility of understanding a statement has as its condition of possibility a shared experience between sender and receiver.
But even worse, the linkage of intention=meaning=interpretation(=possibility of argument) reduces text to the discursive, to a translatable summary of a text into another text (that we call its meaning). But a poem is more than some discursive meaning, and intention intends more than the discursive. Any poem worth its salt—and poetry originally, in its ritual, oral context would be at the heart here—has as part of its intention the *experience* of the poem. As Charles Olson wrote, the poet’s job is to use words to transmit experience (the breath of the poet) from the poet to the reader (sort of like the Octavia Butler example of the aliens who transmit experience directly via tentacles). For Olson, this is not about discursive sense only. It’s also about rhythm, sound, patterns, etc. These form a part of intention that can only be experienced, not “decoded” or “interpreted” by the reader.
This is why WBM’s own readings in *Our America* and elsewhere often reduce texts to brief summaries of their plot, with maybe one key image or exchange used synecdochally (ex., an old man compared to an Indian means that he *is* an Indian). He will only treat those aspects of the text he can easily translate into other words as “meaning.” This reduces the validity of his arguments, because: literature is not just its “meaning,” intention is not limited to discursive statements, and criticism is not only about WBM’s limited definition of interpretation.
Basically, WBM insists that all art be hard, modernist art-objects and that all criticism deal with all art as hard modernist art-objects. Art whose primary intention *is* affect or experience is, for WBM, about experience and so not something we can disagree about. So we have a literary critic more interested in the possibilities of debate than in any delicate, rigorous sensibility for art or language.
[Thanks for letting me air my blathering—I’m putting together a review of *The Shape of the Signifier* and this is really helpful]
This doesn’t strike me as a very good rejoinder to WBM’s argument. Insofar as a work of art has a purely “experiential” element that can’t be reduced to communicatable meaning, then I don’t see how that aspect of the text has any place in criticism. What can the critic say about it except “you had to be there, man”? I.e., the critic is reduced to effusing meaninglessly about an experience that he or she had with the work of art that can’t be translated into discursive language. And WMB is right - this leaves no possibility for debate.
In contrast, it’s very easy to do meaningful analysis of a poet’s use of rhythm, sound patterns, etc. This kind of criticism, like any other, necessarily treats these effects as intentional - i.e., as part of a pattern that the writer has worked into the poem.
Stephen’s right, LB. You’re not actually disputing Michaels seriously here. You’re mainly accepting his account and just reversing his values. The idea of aliens who translate experience directly via tentacles is precisely the kind of example he’d point to as the sort of reductio that writers who wish to render language as experience have often arrived at in recent years. It’s not hard to see why the fantasy is appealing, since it does away with the problem of other minds, but it is plainly a fantasy.
It’s not, btw, a requirement of Michaels’s view that literature be reduced to meaning and that it have no aesthetic or affective qualities, incl’g rhythmic ones--only that it must have meaning to be literature. (If I remember correctly, the opening pages of Shape demonstrate this quite clearly.)
Nor is it the case that Michaels demands that all art be modernist. (Doesn’t that seem a strange claim to you in light of Our America?) Obviously, there’s some kind of art that he believes motivated by ultimately untenable premises (which doesn’t mean that he doesn’t find it moving or beautiful or compelling). But it’s not as if there’s only one alternative to stories of aliens with extraordinary tentacles.
Michaels is an admirably economic and precise writer, a failing I wish I shared. (Check out his mentor Hugh Kenner for a similar style.) But that doesn’t mean at all that his readings are reductive--for two reasons: 1) No critic has an obligation to discuss everything. Selection is inevitable, and the big question is whether the selection is distorting or not. If you think so, you have some obligation to know what’s being left out. 2) Compact writing does not in fact mean a critic is not touching deftly on many diverse features of a work. (In fact, if you reread Our America I think you’ll see that it quite frequently considers the aesthetic and affective features of the works it discusses.) Or that his view doesn’t by implication shed light on aspects that he doesn’t feel the need to discuss at length. That’s my experience of reading Michaels. Like the very best critics, he emphasizes illuminating moments and shows why, when understood correctly, they can reorient your whole sense of a work. If that wasn’t the case-- if, say, Our America didn’t propose strongly reoriented views of classic American lit and raise extensive implications about their aesthetic and emotional appeal--the work wouldn’t be controversial.
Sean, let me just say that I agree that Michaels is an amazing critic, and engaging with his work has been one of the few truly enlightening engagements I’ve had with literary criticism in a long while. I also think his style is economic and highly readable—the very fact that I feel like I can argue with his positions is testament to the fact that, unlike with critics like Bhabha, I feel pretty sure I know what WBM is talking about. With that said:
The assumption here is that literature as a discipline has to be framed as a site of debate. But of course, that’s only one—and a relatively recent—idea of what we do when we write intellectually about literature. I think that, as professors, our job is to show students not only how to decode meanings but also how to most deeply experience a work of literature. This isn’t about “art appreciation” as much as it is about teaching students how to observe closely, how to identify patterns—even when those patterns can’t be translated into some discursive “meaning”—and how to write clearly about both meanings and experiences in art. If we only engage in debates about meaning—because debate is the profession and only meanings can be debated—we’ll miss out on not only a lot of art that isn’t primarily about meaning as well as many sides of individual art-works that don’t concern meaning.
My problem isn’t that Michaels argues in favor of intention. I accept his basic principle: works of art *do* have meanings, and we should give the name “meanings” to those discursive parts of a work of art that are intended. But of course, by opening up the can of worms of intention, you can’t just cut off discursive meanings from everything else that’s intended in a work of literature: affect, rhetoric, experience, rhythm, tone, sound, and so on. Either we pay attention to intention or we pay attention to meanings; but if we pay attention to meanings, we are already paying attention to intention, but only in part: we are ignoring how meanings are shaped by affect, rhetoric, experience, rhythm, tone, sound, and so on again.
Secondly, if meaning entails intention, intention entails conscious, individual control over a work of art. Work with crazy editorial histories thus can’t be treated as purely intended. Furthermore, the need for conscious control means that historical factors must be ignored if we are to remain in the possibility of debate. For example, if we can prove that all works of art exhibited x type of fragmentation emerged under y social conditions; then we can argue that, because a text exhibits x fragmentation and emerged under y conditions, there’s probably some sort of causation happening here. But then the fragmentation isn’t so much intended or expressive as it is symtomatic: it indicates, but doesn’t express, the social conditions. Such claims are debatable—historians do it all the time—but they aren’t about meaning as intention. So either not all meanings are intended or not not all debates are framed around meanings. Or, not all literary debates are debates about interpretation (meanings expressed the text) but can still be facts about the objects and not facts about ourselves. But WBM never acknowledges facts about a text that aren’t meanings—even though his own historicism in *Our America* is about facts about objects that aren’t meanings or intentions.
Another problem arises from his examples: note that Michaels often uses single signs as examples to prove his more theoretical points. This allows him throughout *The Shape of the Signifier* to never actually state what a text’s meaning is. His readings of novels aren’t readings of their meanings but rather logical extensions of what would have to be true if certain of the novels’ assumptions are accepted. Arguably, this is because the meaning of words is only ever more words, which require interpretation, leading to more words and more words. And what’s interesting to me would be to see what he thinks a critic does when s/he articulates a work’s “meaning” as intended.
So for example, in one of the most extended readings in *The Shape*, WBM discusses an example from Silko’s *Almanac of the Dead*, in which a Cuban Marxist is hanged because, according to WBM, he denies “the holocaust of indigenous Americans” (Silko quoted by WBM, 23). Note that there is no mention throughout WBM’s discussion of ideology vs. identity of the American Communist Party’s history of racism. Such a fact is not my private experience (that is “what the work makes me think of") but part of the—dare I say—inevitable context of this scene in Silko’s novel. This is clearly part of the “intended meaning” of this scene, and yet WBM totally ignores it. Although I do think there’s a great militant streak in Silko (which is one reason among many that I dislike her novels), WBM rejects any figurative meaning of this moment: that in ritually hanging the Marxist the revolutionaries are figuratively—for the reader, not for themselves—rejecting the idea that racial oppression can be reduced to issues of class as well as protesting the Communist Party’s abuse and exploitation of racialized groups. There is wish fulfillment here that WBM won’t acknowledge.
Take again WBM’s reading of Beloved in *Beloved”: “The ghosts cannot, in other words, be explained as metaphoric representations of the importance to us of our history becaus the history cannot count as ours and thus can have no particular importance to us without the ghosts” (139). In each case, WBM shows himself to be almost a strict literalist: here, he refuses to read the ghost as a metaphor of “our history” because events that never happened to us directly cannot be our history. But of course, the ghost is not a metaphor. First off, Beloved isn’t a ghost. She’s a child. At first, there’s a poltergeist; then there’s a child. Let’s just get the plot straight first. Then, we shouldn’t call the child a metaphor. Metaphors liken two unlike things by equating the two. The ghost and the child are not doing this. We should think of the two as symbols, just to get the literary terminology correct. Next off, a metaphor need not be logically correct to, well, be a metaphor. “Brave as a white man” is still a metaphor, even if the racist ideology behind it is false. (Fer chrissake, “brave as a lion,” the metaphor I always use to teach metaphor, is still a metaphor even though lions are no braver than any other animal!) So we *can* indeed read the ghost and the child as a symbolic—or almost allegorical—figure of history. Morrison’s idea of “rememory” is similarly figurative, though WBM also takes it literally: “history can be no more remembered than it can be forgotten” (139).
Here we see a wholesale refusal on WBM’s part to even engage the novel’s figures at the level of intention. Because what’s clear to almost every reader, as seen from popular and academic discourse about it, is that the ghost and child figure—embody—the ways in which history has discontinuous effects into the present and future. The fact that Sethe and Beloved close themselves off from the world so that Sethe can ‘be the mother she never was’ is Morrison’s way of showing that obsessive over-identification with the past, with trauma, is destructive. Just as Sethe’s love for her children led to her ability to kill one (and try to kill all) to save them from slavery, so too does her belief that she can love the very child she killed (or those who commited suicide in the Middle Passage—the child is not just Sethe’s child, remember) lead to a destructive isolation from the world. The figure of the ghost is not necessarily racial. WBM can only find racialness in it by cutting off the effects of history from those not directly affected by it, and then arguing that only race could require those unaffected by an event be effected or responsible for it (see 135 on Sethe’s daughter, Denver). But of course, Denver is directly affected by slavery: Sethe’s desire to cut Denver off from the world, and Denver’s escape into another woman’s house, are all *direct* effects of the events of slavery depicted in the novel. Quoting Adorno, James Berger in *After the End* reads this logic correctly: “We will not have come to terms with the past until the causes of what happened are no longer active. Only because the causes live on does the spell of the past remain, to this very day, unbroken” (212).
(Furthermore, WBM insists that *Beloved* is most odd because it’s an anti-slavery novel written after slavery. But of course, historical novels *use* the past typologically to figure the present. Ishmael Reed’s *Flight to Canada* uses the fugitive slave genre to talk about 1960s black literary politics. So too should we understand Morrison’s discourse of slavery as a figure for black family and community politics after Civil Rights—the subject also of *Paradise* and *Love*, unsurprisingly. These novels don’t reject debate—in fact, if you read interviews with Reed and Morrison, they welcome such debates about whether the causes and effects of slavery endure today.)
I also don’t buy the idea that a critics’ exploration of his or her experience can be reduced to “you had to be there.” Because, of course, we *do* share our experiences, and most of the time we do so successfully, and we resort to “you had to be there” as much regarding experience as regarding argument: when’s the last time you saw a debate in which one party actually admitted he was wrong and changed his beliefs? “We’ll have to agree to disagree” is more common, I’d say.
And we can also go from experience to meaning and back again. The popular rhet/comp textbook, *Writing Analytically*, offers students a valuable exercise in which all experience of a text is traced back to details of the text (so that, in WBM’s terms, a fact about the subject becomes a fact about the object). Example:
Student: Hamlet reminds me of my friend.
Teacher: What’s your friend like?
Student: Well, he won’t do anything without being sure everything will turn out exactly as he planned.
Teacher: OK, can you give an example of that in Hamlet’s character?
And so on. Here, the *experience* is the precondition of the *meaning*, in part because a text never only offers itself up as translatable into discursive statements. Texts demand that, to truly “get” them, we must experience them fully by relating to them, identifying with them, identifying against them, reflecting on our experiences, etc. And we might not be able to argue per se about such experiences, but we can certainly converse, discuss, dialogue, and share them. A great piece of criticism doesn’t simply argue me down but also changes the way I experience the text in the future.
There is also more to communication than the decoding of signs into “true” statements. Example:
(Scene: very hot day)
Friend 1: Boy, if only it would warm up.
Friend 2: Yes indeed, a little sun would sure be nice.
We can decode this conversation to mean “It’s hot,” but this scene is different than this one:
(Scene: very hot day)
Friend 1: It’s hot.
Friend 2: Yes it is.
What’s different is the actual signifiers, not the signifieds. And while WBM correctly goes after those who would reduce a text to a series of marks, he often seems to reduce a text to its signified. Why? Because while a difference in meaning (signifieds) is universal and one meaning must be true or false (it’s either hot or not), a difference in signifiers brings us back to experience. Both conversations “mean” the same thing, but both *do* very different things. Again, intention isn’t just about meanings but about every aspect, even the sound (in the above examples, it’s not just the written words that would be different, but the very sound of the conversation would be different—and that’s often the only way we know something is ironic or not. And sound can only be experienced. It can contribute to meaning, but it has no meaning on its own. That’s why Pope, in “Essay on Criticism,” calls on poets to use sound to reinforce sense and on critics to pay attention to it. (And it needs also be said that sound doesn’t always contribute to sense, but rather creates simply another set of effects alongside meaning.)
All this would seem to come apart with music. What does “Louie Louie” mean? It’s full of intention, but there’s no discursive meaning, there aren’t any signs as such (no one can agree on the lyrics).
Or a great deal of art before modernism. I’ll stick by this previous assertion. If a critic is limited to what can be argued about, and only meaning can be argued about, then what does a critic do with texts whose main purpose is affective? Following Jane Tompkins, I think WBM is a critic who applies certain modernist aesthetic principles (note his positive reference to Clement Greenberg) to all art. To exorcise rhetoric from literary criticism seems crazy to me, but rhetorical analysis is all about how details create effects.
Ultimately, this all comes down to WBM’s desire for a debate-style model for intellectual engagement. But what if we do some WBM style analysis of WBM? To privilege debate over dialogue would be to privilege defeat over consensus. But debate is then only useful when defeat or victory is possible; an endless debate is ultimately either pointless, a stalemate, or it becomes dialogue and people simply agree to disagree (a consensus, with harmony re-established). So to argue for meaning is to desire to enter into a debate, which is then a desire for victory over dissenting beliefs.
What happens with literature, when almost all the interesting debates are endless? My simple example from a while back: why, in *The Odyssey*, does Penelope agree to settle with suitors in the archery contest when she does? Another simple example: why, in Hawthorne’s “The May-Pole of Merry Mount,” does the narrator tell us the story is about the conflict between joy and gloom, and yet never give us a character experiencing or representing joy?
We analyze both because we’re convinced they are meaningful texts—symbolic forms, to use Suzanne Langer’s term (from Clive Bell). But we’ll never be able to achieve victory in these debates. We can say, “Well, the intended meaning is undecideable and multiple on purpose.” But then there’s no debate: we agree that, despite our different interpretations, the textual issues here are open to multiple interpretations.
Isn’t that really the case with nearly any aspect of a text worth writing about? Someone’s either clearly right or clearly wrong; or new information comes to light proving someone again clearly right or clearly wrong; or the textual moment is so underdetermined that we are forced to agree to disagree? And at that point, isn’t the difference between debate and sharing perspectives a difference that makes no difference?
(One last niggling point: to engage the academic interest in “material texts” only by a quick reading of one example in the creative-critical work of a poet—Susan Howe—seems reductive to me. Take on Peter Stallybrass if you want to criticize attention to textual materiality.)
at least some of these claims are more complicated than they need to be. E.g.,:
you can’t just cut off discursive meanings from everything else that’s intended in a work of literature: affect, rhetoric, experience, rhythm, tone, sound, and so on. Either we pay attention to intention or we pay attention to meanings; but if we pay attention to meanings, we are already paying attention to intention, but only in part: we are ignoring how meanings are shaped by affect, rhetoric, experience, rhythm, tone, sound, and so on again.
There’s no necessary choice here. If rhetoric is intended, it’s meaningul and its meaning can be considered. That doesn’t mean we have to treat all meaning as propositional, and it doesn’t mean that we can’t note something that seems unintended--only that, if there’s no meaning, there will be (by Michaels’s terms) no art and nothing there for us to discuss. A meaningless work of art, in other words, is a contradiction in terms.
Secondly, if meaning entails intention, intention entails conscious, individual control over a work of art.
No, not necessarily. If my colleague says to me, “I like your work,” he might mean, say: “I think you are a ridiculous pedant, but I’d rather not say that directly, and for the purposes of collegial harmony I’ll offer you a meaningless compliment.” That may not all be at the forefront of his mind. But I may be perfectly or imperfectly aware of it. For the same reason, you’re hypothetical dialogue isn’t really applicable. To say that communication is intentional doesn’t require that it be simplistic or that all utterances be reducible to easily defined propositional content. Likewise, to say that you’re reading to understand a text’s intended meaning, does not require, as you suggest, that you be able to state it’s meaning in x words or less. Here you’re asking Michaels to do something that he doesn’t need to do, and that you apparently wouldn’t want him to do, but are dissatisfied with him for not doing.
This is true: Work with crazy editorial histories thus can’t be treated as purely intended. But who would argue otherwise? And that wouldn’t mean you couldn’t discuss a work’s textual history or any of the other factors you raise.
About Silko, note that you don’t disagree with Michaels’s understanding of the novel, you’re just charging that he hasn’t valued what he’s identified as you would--in effect that he hasn’t elaborated the mitigating factors that make what might otherwise seem a shocking idea seem palatable. Michaels may well want us to recognize what is striking about the fantasy of ritual hanging to symbolically redress historical crimes. Ultimately, his evaluation may not convince you. But this doesn’t show any systematic problem, only that you and he have quite different political preferences. If you think the fantasy of hanging one person for the historical abuses of others is an appealing fantasy (as Silko arguably does), then you and Silko probably have a different set of values than Michaels does. No harm in identifying that difference and what is implied by the wish fulfillment you mention.
On the other hand, if I remember correctly, you’re misdescribing Michaels’s argument about _Beloved_--and making things more complicated than need be. (She’s a poltergeist, she’s a child, etc. Let’s just say she’s a supernatural being in the novel that represents, as you say, the “trauma” of historical events.) The big point of the argument is that it makes no sense to say that I can have experienced events that I have not in fact experienced, except through the agency of some supernatural force like a ghost or an alien with weird tentacles. No doubt at all that everyone currently alive in the U.S. is effected by the history of slavery, or that the effects of that history are unequally distributed. The argument is against the fantasy that current descendents of slaves, by virtue of their descent, have experienced slavery itself, rather than the historical effects of slavery. Believing that does require supernatural agents, which is why Beloved and similar stories are tales of the supernatural.
Lastly: “To privilege debate over dialogue would be to privilege defeat over consensus. . . . So to argue for meaning is to desire to enter into a debate, which is then a desire for victory over dissenting beliefs.
No, it’s to choose rational engagement--and the hope of arriving at some points of legitimate consensus, however partial or provisional--over force.
Sean, thanks for your thoughtful responses throughout this discussion. This is the most intelligent fun I’ve had in this discipline in a long time.
Back to the issues:
Sean writes, “If rhetoric is intended, it’s meaning[f]ul and its meaning can be considered.” But this isn’t true by WBM’s own principles. According to Michaels, “To think that you have understood an utterance is to think that you have figured out and fixed its meaning; indeed . . . the meaning of the sign is, as it were, fixed by definition, since a sign with a different meaning is a different sign (*Shape* 126-127). So here, an utterance has a meaning, and in the next clause, meaning is equated with “the meaning of the sign,” which is to say, meaning is equated with signs. WBM throughout writes of signifiers and signifieds, so I’m assuming that he’s basically staying within the boundaries of a Saussurian model of the sign (as opposed to, say, a communication model of meaning). This means that intentions are what ties a sign to a meaning, and that at some level, only signs have meaning: intention -> signs -> meaning -> reader.
So, what about intentions that aren’t producing signs, and hence cannot—in WBM’s system—produce meaning? Music doesn’t produce signs, and anything that approaches music (I’m thinking of Pater’s disctum that all art approaches music) in literature, anything that is intended and yet isn’t a sign and so isn’t meaningful, is left out of WBM’s account in *The Shape of the Signifier* or is simply relegated to “experience.” The *force* of rhetoric is not in its signs but in the interaction of sender, receiver, context, code, message, and so on. Failed rhetoric is not the same as a misunderstood message; the success or failure of affect is not a fact about the object but a fact about the interaction between subject and object. It’s not simply about signs, and so cannot be about meaning, according to Michaels, who reduces meaning to “the meaning of signs” at nearly every point in *The Shape of the Signifier*. Michaels might “really” mean that “the meaning of signs” is the only type of meaning that can be interpreted and debated. But that would be, according to Michaels himself, the affective stance, not the logical stance, of the text. The logic throughout the book is to elide the difference between meaning as such ("I meant my song to make you dance") and the meaning of signs ("The lyrics of my song are about dancing").
Intentions that aren’t embodied in signs ultimately *shape* meaning via the interplay with signs, but meaning-as-sign-meaning is not a necessary condition of such intentions. Furthermore, there are facts about art-objects outside of intentions. These facts shape meaning but aren’t themselves signs or meanings because they weren’t intended. So we have two categories of phenomena that are elided throughout *The Shape of the Signifier*: (a) intentions that aren’t signs (and so aren’t meaningful in WBM’s version of meaning); and (b) facts about the object, not about the subject, that are neither intentions nor signs, and yet which shape/delimit/define the meaning of the signs.
Sean writes, “. . . if there’s no meaning, there will be (by Michaels’s terms) no art and nothing there for us to discuss. A meaningless work of art, in other words, is a contradiction in terms.” But let’s be clear now: there are be, according to Michaels’ logic if not his affective stance, intentions that aren’t sign-producing and hence aren’t meaningful. The root of art is in intentional, ritual, but not-necessarily-sign-producing processes—let’s remember that, as Amiri Baraka wrote in *Blues People*, the prehistory of art is in ritual process, not object, and that the object-ness of art is a relatively late notion. And for many artists today, the goal of art is to return art to process. Thus, we have WBM’s footnote about Steve McCaffery and Language Poetry’s “commitment to ‘the loss of meaning’” (203).
Along these lines, let’s consider a radical example of intentions that aren’t sign-producing and yet produce things that look like signs (but are really, in WBM’s and de Man’s terms, marks). Let’s consider an example from Jackson Mac Lowe:
“In Dis libidinal radians o’tigons
Deter no generals, no ordinaries,
No Adlerians tarring arteries’ DNA,
Triliteral arsenal o’nitid groins.” (from “Antic Quatrains")
This stanza is from a piece in part generated by a computer (partial anagrams of the name of dedicatee of the poem, Annie Brigitte Gilles Tardos). How much of the poem is procedural is unclear. The bottom line, in any case, is that here we have marks full of sound and fury signifying nothing. The reader can help *produce* significations out of the poem, but s/he will be writing his/her own meanings out of an experience with the poem. But I think we have here an art that is meaningless in WBM’s terms. But it’s still clearly art (well, clear to me, anyway). It’s as much art as a song is art. And it’s also clear that this *isn’t* a song. That is, we can’t just say that literature is that art that is concerned primarily with meaning, and so literature is meaningful or it isn’t literature.
I actually like to think of Language Poetry as more like a score than anything else. It’s a set of directions for a performance (the reader’s performance), and the reader’s performance might generate meanings, but those meanings will be facts about the reader’s critical essay, say, and not facts about the poem itself. I can say, “The play of language in the above stanza suggests to me that desire (’libidinal radians’) is apolitical, insofar as it “deters no generals,” despite calls for a jouissance-writing as politics with multiple meanings: ‘triliteral arsenals.’” But this will be a belief of mine that we can argue about—that eros isn’t necessarily liberatory—not a belief about the poem’s meaning. The poem allowed me to generate a meaning I might never otherwise have considered, but the meaning is still my own, not the poem’s.
For me, that’s what art at its best does: it models thinking and feeling, it is a score for ways of thinking and feeling, but it doesn’t necessarily *have* thoughts or meanings. Again, we’re back to the neglected category of intentions that aren’t sign-producing and hence aren’t meaningful as the-meaning-of-signs. Dickens’ *Hard Times* has no ideas about industrialization; its main intention is to make its intended audience feel so bad about industry that they might *do* something about industry. Rhetorical strategies are intentions without meaning-as-signs. We only know they are present when we are affected by them—in our experience with the art work.
Sean writes, “That doesn’t mean we have to treat all meaning as propositional, and it doesn’t mean that we can’t note something that seems unintended--only that, if there’s no meaning, there will be (by Michaels’s terms) no art and nothing there for us to discuss.” Meaning that isn’t propositional can’t be articulated as direct beliefs and so cannot be debated. Again, this is why the assumption of WBM’s argument is that meaning=meaning-as-signs. Meaning as symbolic form—what someone like Pater engaged with in *The Renaissance*—cannot be set up as propositions of debate.
One last point that might get at the problem I see here. In a discussion of the sublime versus the pretty, WBM writes, “The difference between sublime and pretty is a difference in the object, not in the response to it” (72). The first obvious point is that WBM gets the analysis of the sublime wrong, whether were dealing with Young, Kant, or Lyotard on the sublime. Yes, the sublime requires certain objective elements: magnitude of quantity or quality. But it also requires an experience: we must be located near enough to fear subsumption but far enough away to know that we are actually safe; we must actually feel these feelings of fear and safety; and then we must feel that out ability to experience such magnitude gives rises to the concept of our infinite freedom. We can debate about the sublime, but it won’t be about an object’s sublimity. It will rather be about the subject’s preparedness to experience sublimity. A fearless man will never experience the sublime. It will also be about our position in relation to the object. If you fall into Niagra Falls, you cannot experience sublimity because while you will fear the magnitude, you also won’t feel the safety and limitless of your freedom. If you look at Niagra Falls on a postcard, you might *know* its magnitude but you won’t fear it, and so you won’t experience the sublime. But if you are near the edge, even with the short rail in front of you, or if you are within the caves behind the Falls, then you can experience the sublime.
But the truth of the matter is that what we’re really talking about here is how our claims are framed: if I say, “I felt the sublime,” you can’t argue with me or disagree with me (unless you say I’m lying). Likewise, if I say, “To me, that Cy Twombly painting looks like a monster,” you can’t disagree with me because my proposition is framed as a fact about my perception. But if I articulate it in this way—“The shapes in Cy Twombly’s painting represent a monster”—then, we can have a healthy debate. What’s changed is the way I’ve framed my experience. Each are still really facts about my perception. In the latter example, though, I’ve simply elided the presence of a subject. This comes down to telling our rhet/comp students to try to avoid the “I” as much as possible. Because really, all statements of interpretations begin with a silent or invisible “I think.” “The meaning of green light in *Gatsby* is a reminder of nature” is nothing more than, “I think the meaning of the green light in *Gatsby* is a reminder of nature,” and so facts about objects and facts about subjects are not stable one way or the other. The truth of the matter is that facts are universalized *versions* of our personal experiences.
Just touching on your last example, there is a qualitative difference between your two statements:
1) To me, that Cy Twombly painting looks like a monster.
2) The shapes in Cy Twombly’s painting represent a monster.
The first describes a subjective experience. And you’re right - in its present form, it opens no possibility of argument or disagreement. I can say, “Well, to me, it looks like a car,” and you have no grounds for disputing me.
In contrast, the second statement contains an appeal to universal agreement. It suggests that there is an intentional pattern in the work of art that we can agree or disagree about. In order to do so, we have to find reasons for why the painting represents a monster or, on the contrast, a car. Is there evidence from Cy Twombly’s other work? Internal, corroborating evidence in the painting (whatever this might be)? Evidence from Twombly’s biography or statements from interviews? It might be the case that there’s no way of telling whether Twombly indeed intended to represent a monster or a car, in which case we’ve been going about looking at the painting in the wrong way and should argue about different things. I.e., how does this work respond to a given trend in painting? What kind of techniques is Twombly using? Etc.
I think you’re wrong to claim that statements of the second kind inevitably collapse into statements of the first kind. Rather, it seems to me, it’s the other way around. When you tell me that you see a monster in the painting, there’s an implicit appeal to me to at least understand how you came to that conclusion. The obvious response is for me to ask “Why do you see a monster?” and for you to tell me what parts of the painting evoke that response in you. And then we’re on the road, once again, to interpretation.
The only way in which your subjective impression could remain absolutely subjective would be for you to respond “it just does.” In which case, we might as well be looking at shapes in clouds - unintentional objects about which interpretation is impossible.
To move on to your poem by Jackson MacLowe - I think it’s perfectly possible to interpret it. The dialogue might go as follows:
“This poem is all about how eros is necessarily liberating - just look at that line about deterring generals.”
“Actually, it was computer generated.”
“Oh. Why would the poet do that?”
“Well… [explanation follows]”
Stephen, the only thing we could “interpret” about the Mac Lowe would be the procedure itself. But that’s not interpretation; it’s description. Interpretation implies an act of decoding, of synthesizing and analyzing the play of various signifiers and signifieds. If the meaning of a text is a description of it, then we need no interpretation: the text itself is the best description of the text. Interpretation of plot is not plot summary; interpretation of theme is not thematic summary. Interpretation is an act of showing *how* certain meanings are generated by a text. In a sonnet, this might involve showing how the final couplet changes the meaning of the first two lines, while the fact that the first two lines remain present presents a tension between the initial meaning and the new meaning. (Here I fear we’re back to experience: it’s only the reader’s experience that allows the final lines to resonate with the initial lines. Some parsers might insist that the first lines essentially disappear after one reads them.)
But here’s another problem that just came to mind. WBM criticizes the notion of “resignification” by arguing that when we rearticulate another’s utterance, we aren’t giving the old utterance an additional meaning. Instead, we are changing the utterance. Our new intention changes the signifieds, even if the signifiers are the same. This means the signs themselves are different, and so we’ve generated a new meaning, not an additional meaning.
But of course, this locates the signified not in the reader’s mind (as Saussure would have it) but in the author’s mind. Hence interpretation is an act of mind-reading.
But the point of Saussure’s linguistics (and of Lacan’s Symbolic) is that signifieds are conventions passed down and shared by all competent users of a language. What’s going on in the author’s mind cannot delimit the signifieds. Only the context—other signs, tone, environment, and so on—can delimit the signifieds. For example, if some guy in a bar says, “I love to kill” and I say, “Then you’re dangerous,” and he replies, “I was being ironic,” I did *not* misunderstand him unless I failed to read some indicators of irony. Otherwise, it was the formulation of the message that failed, not my reception of it. I can’t be expected to read a mind; I can only be expected to follow conventions as rigorously as possible.
This is why WBM’s example of Marvell’s “vegetable love” makes sense: I have to acknowledge the context of the poem as a limitation on the intention/meaning of the sign “vegetable.” But his example from the Lucy poem is very different: our failure to know whether Lucy is meant to be as dead as a rock or as spiritually alive as a rock is *not* our failure. Either the dual meaning was intended (and so the signs are purposefully not delimited) or the poem is a failure. I can’t be expected as a reader to read Wordsworth’s mind. I can only be expected to obey the rules of the language.
Back to resignification: to do away with it is to do away with plagiarism (thanks Michaels! Now my students can plagiarize all they want!). Why? Well, because in Michaels’ model, there cannot be plagiarism unless the plagiarist copies not only the same marks/signifiers but also copies the same intentions/signifieds. This means the plagiarist would have to have direct access to the mental activities of the original author. Because that’s impossible, we can safely assume that the plagiarist did *not* share the same intentions, meaning that the plagiarized prose might have the same signifiers but not the same signifieds and so is an entirely different set of signs than the original.
Unless what we plagiarize are not signs but signifiers/marks. But as WBM insists in his reductio of Susan Howe, where do marks stop? The words, the shape of the words, the ink, the paper, the binding, and so on. So as long as the plagiarist used a different font or different paper or whatever, s/he couldn’t be accused of plagiarizing the marks.
But if plagiarism is a type of resignification in which the original meaning AND marks are preserved (on top of whatever might change in the act of repetition a la Borges), then plagiarism can still be a crime and we’re safe. And of course, when I “sample” someone’s words, I am *both* preserving their original intentions as well as adding my own—if not, there couldn’t be anything like allusion. The tension of citation (in academic work, in poetry, in rap music) is between the meaning of the original that we recall and the new meanings generated by inclusion in a new context.
It is true that we can only interpret the procedure of the Mac Lowe poem, rather than the finished product. But I maintain that this is still interpretation. We can go beyond describing the procedure (which is the equivalent in this case to “plot summary") by asking why the poet implemented it in the first place. Your answer might boil down to something like “Well, he’s doing it because he wants to produce a poem that mimics the ways in which natural objects can be beautiful without exhibiting intention.” That’s still interpretation - an account of the writer’s intentions. It is possible to have a dialogue on this topic without resorting at any point to private, subjective experience.
Turning to your claim about plagiarism in WBM, I think you have him backwards and are confusing him with the position he’s arguing against. Plagiarism is in fact impossible for a critic like Howe, since for her what matters is the irreducibly particular mark on the page (i.e., Emily Dickinson’s dashes, written in her original ink), rather than the meaning expressed by it.
Stephen is right, Luther. In the effort to dispute Michaels, you’ve mangled him beyond recognition—maybe with some contribution from my poor explanations. Few if any of the views you attribute to him are either held by him or required by the things he says. I don’t have a copy of Shape handy, and it’s been some time since I read it, so I can’t be specific, so here are some more general comments.
Michaels does indeed emphasize the signifier, as his title indicates. In a sense that’s misleading because, as the sentence you quoted shows, what matters to Michaels and to Knapp is the utterance. So far as I understand, Shape emphasizes the sign for two, related reasons. One, it’s the highest possible threshold for the argument he shares with Knapp. If you go back earlier in this thread, you’ll see that the dispute btw K and M, on the one hand, and Searle, on the other, is whether words that are not intended and that are therefore not utterances can nevertheless be meaningful. If Michaels can show that even the most basic element of communication—the sign, or the word—must be intentional, he’ll have won that argument. But that doesn’t mean that he thinks that signs rather than utterances are the significant unit of linguistic communication.
The second reason is that, opposing the view expressed by Searle in another direction, countless theorist and writers in recent years have sought to see the sign as a material object from which intention is absent and to which (in their own view, as in Michaels’s) we can only have a relation of experience. The materiality of the signifier has been a basic doctrine of literary and cultural theory, as well as a lot of fiction, since the mid-sixties. No surprise then that Michaels would emphasize it in the effort to show that, what this view regards as the very core of language is by definition, in his and Knapp’s view, not language at all.
The quotation from MacLowe, as it happens, is not a challenge to Michaels, but evidence toward his claims. The fact that, in seeking to generate meaningless poetry, MacLowe needs, first, to make use of computer generated text and, second, to choose text that does not have syntax fits with Michaels’s view that language is intentional.
Stephen is also completely right that, while interpretations may begin in experience, it’s not the case that interpretations are therefore reducible to experience.
Thanks for replying. (I realize this little SCOTUS discussion is considerably off topic.) You wrote:
“...on the general issue of democratic legitimacy- as long as the court is doing the job which is intended as theirs by the constitution, ie, the democratically passed document which founded our country, it has democratic legitimacy even if the job given to them is undemocratic.
Hmmm. I disagree that the Supreme Court is currently “doing the job” it was originally intended to do. The history of the Court since John Marshall has been a chronicle of relentless judicial encroachment. And the willy-nilly post-Civil War “selective incorporation” of the Bill of Rights to the States via the 14th Amendment (an amendment, by the way, never democratically approved) has transformed that institution into a creature its creators would surely have found utterly unrecognizable. But you’re correct to suggest that if the public ever becomes sufficiently jealous of the Court’s encroachments, they can always amend the Constitution to once again limit its jurisdiction.
As to the rest of your comment, I don’t actually think we disagree. (Assuming I understood you to be saying that the Court ought to and often does prioritize the changing views of the public over various attractive forms of textual analysis when deciding cases--though they certainly do both.) In my own view, the importance the Court continues to place upon reflecting the public’s views over its own is all that keeps that much-transformed institution even quasi-democratic.
The Court’s approach to death penalty cases illustrates this careful deference to majority opinion. In Furman v. Georgia (1972), for instance, the Court judged the death penalty unconstitutional largely based upon popular antipathy toward the practice. In Gregg v. Georgia (1976) the Court then justified reversing itself on the same basis, noting that: “Legislative measures adopted by the people’s chosen representatives weigh heavily in ascertaining contemporary standards of decency; and the argument that such standards require that the Eighth Amendment be construed as prohibiting the death penalty has been undercut by the fact that, in the four years since Furman, supra, was decided, Congress and at least 35 States have enacted new statutes providing for the death penalty.” In the recent decision (Roper v. Simmons) declaring juvenile death penalty statutes unconstitutional, the Court once again prioritized gauging public sentiment over textual interpretation: “...the beginning point is a review of objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question. This data gives us essential instruction.” My point earlier to Joe was to emphasis the much greater role this deference to public opinion does (and ought to) play in the Supreme Court versus interrogating the text of the Constitution and various statutes for useful ephemera and “penumbras.” Which, as we both know, is usually controversial and inevitably subjective. Happily, Supreme Court Justices aren’t (as yet, anyway) primarily literary critics. Heh.
Sean and Stephen, you are right that, in my comments about the issue of plagiarism, I did in fact mistake WBM’s reduction of Howe for his own position—which is that a “t” is a “t” no matter how it’s written. My confusion arises, though, in part because of WBM’s own confusing account of these issues in his introduction.
First, he claims that a “text [is] understood to consist in certain crucial features . . ., and any object that reproduces those features (whatever they are thought to be) will reproduce the text” (3). But further on, Michaels argues that a reproduction of a drawing is the same drawing even if the paper it’s on is different (4-5). Now, the essential issue is that, for WBM, the critic must be clear about which aspects of a text are “crucial to its meaning” (4). If so, then, in every case of a drawing, the media are essential. This slippage—between a call for defining which details of a text are crucial and an uncritical equation of a text with its reproduction—I see occuring at various times in the book. So that at times, WBM argues for simply paying attention to those material details charged with intention, while at other times, the text seems to be an ideal object devoid of the material. This comes up again in his discussion of Michael Fried’s separation of art from objecthood (an argument I only know from WBM’s book, so I’m steering clear). I only point this out as a possible wavering in his argument.
Secondly, Sean’s point about Mac Lowe’s poem actually proving WBM’s argument that language is intentional is not quite right. For the argument about Mac Lowe’s poem as reducing meaning to experience is made by Michaels about Steve McCaffrey, a poet who doesn’t use computers or aleatory procedures. The problem here is that McCaffery’s use of language is wholly intentional (in the sense that his poetry is sharp and controlled) and yet readable only in terms of our experience of it (according to Michaels). Again, we face the aspect of art I discussed earlier: intentions without meaning—or, more accurately, intentions toward experience. And of course, it is that art that intends experience that Dedaelus/Joyce refers to as pornographic (to return to the issue of a modernist aesthetic).
But, as Stephen pointed out with Mac Lowe, we can describe the procedure and attempt to analyze why or to what ends Mac Lowe has put such a procedure into action. What Stephen wrote is, “We can go beyond describing the procedure . . . by asking why the poet implemented it in the first place.” But what this does is negate the text, shift interpretation onto a real world scene (i.e., the non-textual scene of composition), and what results is at heart psychologism. Here, we’re in the territory of intentions without signs: interpreting a creative procedure means analyzing why an author did what s/he did. We’re no longer talking about meaning, which again is the unity of intention with signs (or, as Sean points out, utterance). Analyzing why an author used a particular procedure is no different at heart than analyzing why a thief stole underwear.
But what we can do is enter into the experience of reading a Mac Lowe or McCaffrey poem and, as with rhetorical analysis, move from effects to causes. But this would mean that we could have a criticism that could interpret works of literature that had intention but no meaning—which would mean that we could “interpret force.” Which would mean that we could debate affect? Dunno.
Having finally read the original “Against Theory” (in the edited collection of the same name), I now see that K & M’s argument is different from, and stronger than, what I had assumed it was. Their claim is not that one should treat meaning as synonymous with intention, but that in practice everybody does treat meaning as synonymous with intention. (Sean said the same thing in his comments, but I didn’t understand it then.) This position, in fact, strikes me as indefensible, and K & M are only able to maintain it through semantic quibbling: insisting that someone who claim to interpret a text in disregard of the author’s intentions “know[s] what the text really means [but] prefers his mistake” and is in fact writing a new text. ("A Reply to Our Critics,” pp. 102-3.)
Kumar wrote: “It seems to me that these two are very different sorts of argument. If Mr. Stephanides version is the one advanced by M & K, then it amounts to an argument that meaning is underdetermined without appeal to authorial intention.
“The version of M & K Mr. McCann cites in his post (which, fwiw, also seems to me to what M & K argue for) argues that meaning is necessarily tied to authorial intention. In other words, far from an infinite array of ‘meanings’ for any particular combination of words, they seem to argue that there is no meaning at all in a sentence, without the use of authorial intention. “
Well, as I just said, I hadn’t read “Against Theory” when I wrote my post. And I don’t have The Shape of the Signifier at hand, so I can’t be sure how the argument I remember from there connected to that of AT. My guess would be that it was intended as a reductio ad absurdum of the idea of “sentence meaning”: that is, if we were to accept the concept of intentionless “sentence meaning,” then we would have to say that any string of characters has every possible meaning, which negates the whole concept of “meaning.”
Sean wrote: “Wouldn’t an obvious counterexample to the multiple languages hypothetical be simply nonsense words? ... If the sea spits up “ghzs,” no word, no meaning. If it spits up “help,” word and meaning, even if in more than one language.”
But Michaels, iirc, was arguing that in the absence of a speaker’s intention, there is no justification for limiting our consideration to those languages that have actually been spoken at some point, as against every language that could possibly be spoken (or written). If this is granted, then there is no distinction to be made here between nonsense words and “sensical” words. “Ghzs” occurs in an infinite number of possible languages, with an infinite number of meanings. “Help” occurs in an equally infinite number of possible languages, with an equally infinite number of meanings. For Michaels, the fact that “help” occurs in at least one historically existing language while “ghzs” presumably does not is, in the absence of any intention, irrelevant.
Obviously, the place to go for anyone interested in continuing this discussion is John’s latest posts. But a small point, Adam. My example should have been clearer. Have a computer generate random strings of words. If “Cat the black is” comes out, mere competence in English will tell me that it’s not a good or meaningful sentence in English. Likewise, when “The cat is black” comes out, it will be a meaningful sentence in English. I won’t need reference to the intentions of a speaker to identify it as an English sentence, because it will be enough that it fits the rules of syntax and the conventions of spelling and semantics. (Even if the computer is actually a Venutian in disguise and intends the words in Venutian as a call for all concealed Venutians to rise and conquer the Earth, it will still be a good and meaningful sentence in English, even if in reading it as such I won’t have recognized the meaning intended by the speaker of the utterance.)
p.s., Badly put again. I can already imagine how LB will respond to my first example. Change it to: “Cat is black the.”
nandragna- I actually think we are on topic, and everyone else is not. :-) And while an in depth, Theory drenched analysis of the actual meaning of the phrase “on topic” and how it relates to evolving discussion in a blog thread as it winds it way further and further from the original post might be fun, it’d also be a bit gratuitous.
I’m not precisely arguing for a privileging of popular opinion over textual analysis.
Let me explain by means of trivial example.
Lets say we are members of a small city zoning bureau. Our city has zoned some areas “service districts” and some areas “shopping districts.” It has granted us the power of enforcing these rules.
A series of cases will come before us. They will all be cases where the answer is nonobvious, because obvious cases are disposed of easily by our secretaries. How do we go about enforcing this zoning code?
We could be what I will call laundry list originalists. We decide that the legislature, or some other actor, had an original intent regarding what businesses were or were not shopping or service. So, we’d go to sources detailing that actor’s opinion, and try to find whether business A was understood as shopping or service.
We could also be structuralists. In this case, we look at the laws as evidencing some actor’s intention to set up a system which would accomplish certain goals. Lets say we conclude that the goal in mind when the statute was written was to put the traffic intensive shopping districts in one area, which has easy road access, and the service districts in another area, which has lower costs and therefore is cheaper for new businesses. So, we’d ask questions about whether this business will attract lots of customers to its storefront, like a shop, or whether it will dispatch employees from a central location to perform tasks, like a service. A gym might be a shop under this view, because it attracts many customers, and does not send out employees to do tasks. Really, its pretty ambiguous- it doesn’t sell products like a shop. But we have to pick one or the other by definition of our job, and shop fits the structuralist intent.
These are just two of our options. I’m going to stick to just these for now. But I want to point out a few things about these different choices. First, they both reference original intent. Second, they can easily contradict each other when you look at the end result of a particular case. Third, they involve looking at very, very different sources when making a decision. Fourth, many decisions which are popularly accused of being unfaithful to the original intent of the Constitution, are in fact perfectly justified under at least one of these theories. And fifth, both types of original intent are capable of containing the following: “judges ought reference a particular theory of jurisprudence other than original intent.”
Much of the time, when a court is being accused of being unfaithful to the original intent of the constitution, its because the structuralist intent is being honored, but the laundry list intent is not. Take interracial marriage. It was definitely not the specific intent of the authors of the constitution to guarantee a right to interracial marriage. But it was (to simplify greatly for sake of space) their intent to create a system in which all citizens possessed equal rights. The protection of interracial marriage follows from that, even if the people who originally passed the relevant constitutional provisions did not realize this. So was this decision unfaithful to original intent? I guess it depends on which type of original intent you deem more important.
Finally, I’d like to note that original intent of either type can reference other theories of jurisprudence, or can reference techniques not normally included within original intent. “Cruel and unusual” is a good example. In terms of laundry list original intent, we can research history for a list of specific crimes and punishments, and how they were viewed. In terms of structuralist original intent, we have to ask how it was intended that cruel and unusual be applied. On one hand we have a list of expected outcomes intended by the original parties to the constitution. On the other hand we have a list of ideals and values and factors that people expected judges to apply to find results, things like “sickens the conscience” and “disproportionate to the offense.” Using this kind of analysis, we may find ourselves ordered by the original intent to go out into the world, and apply the evolving standards of justice we find evidenced in modern opinion. Similar effects can be found when we find words in laws like “unreasonable” and “proportionate” and “due process” and “rights and privileges” and really anything inherently ambiguous.
Anyways, that was long and rambling. Enough now.
Just wanted to note, Patrick and dandragna, that I recognize the way this thread split into two distantly related discussions and that you guys have been getting unfairly ignored by the rest of us. fwiw, I’m partial to Patrick’s view (not least because it seems implausible to me to describe “the history of the Court since John Marshall” as “a chronicle of relentless judicial encroachment"), and I’m grateful to you, Patrick, for the long and careful explanations.
Thanks. Although I may need to revise my view of Fish somewhat, based on this article I just read an hour or so ago:
With thanks to butterflies and wheels, which is where I found the link.
Fish seems well aware of the distinction between what I’ve been calling laundry list original intent, and structuralist original intent. He also includes positivist original intent, and perhaps more.
So, props to Stanley Fish. He is better at this stuff than I gave him credit for, when I was judging him primarily on his editorial.
And “Stanley Fish” is a great name for a rock band.
Before responding to your last interesting comment re SCOTUS, Patrick, I thought it a good idea to tackle Sean McCann’s skepticism about my statement that “the history of the Court since John Marshall has been a chronicle of relentless judicial encroachment”.
To be honest, I find Sean’s incredulity pretty incredible myself, since it shouldn’t take more than a moment’s reflection to conjure up a formidable list of Supreme Court precedents extending that institution’s jurisdiction over nearly every aspect of American life. (The Court, after all, is pretty much now the final arbiter of whether our public schools and commercial establishments can or can’t be racially or sexually segregated, whether we do or don’t have access to contraception or abortion, whether we’re free to engage in various forms of intercourse or aren’t, what we can and can’t read or write, whether and when we can or can’t be executed, etc..) Unless you believe that the Supreme Court has always boasted such near-universal jurisdiction over the most local and intimate aspects of American life, there must have been a time when it, you know, didn’t.
And if the juridical journey from then to now hasn’t been a “relentless” one, which post-Civil War period could be described as a diminution, let alone reversal, of the Court’s ambitions?
I apologize in advance if the following is tediously familiar, but I feel it’s important to note, for context, a few highlights from Constitutional History 101:
For roughly the first hundred years of its existence, the U.S. Bill of Rights did not apply to the States. The B of R limited only and explicitly the power of the Federal Government. The legislatures of each State, for good or ill, retained near absolute sway over the lives of their own citizens--sway limited only by the rights and privileges, if any, outlined in each of their several State Constitutions. So the notion that, for instance, you have a right to something called “free speech” protected by the Bill of Rights--a right which State governments have some obligation to respect--is actually comparatively novel. And since such judicial checks on State power are now universally agreed to exist--despite the fact that they appear nowhere in the original Constitution, even in the form of furtive “penumbras"--it seems clear that they must have been knitted into existence, precedent by precedent, by the Supreme Court.
The 14th Amendment was the mechanism by which this “selective incorporation” of the Bill of Rights to the States was accomplished. Unfortunately, the 14th Amendment was also “ratified” during Reconstruction--a period when the prostrate Southern States were divided into five military districts, each governed by a major-general, and people were routinely herded to the ballot box at the point of a bayonet and told who and what to vote for--and how many times.
So the most profound, if rarely remarked upon, change to the U.S. political system in its history--i.e., the extension of the Supreme Court’s previously carefully circumscribed jurisdiction to nearly all aspects of American life--is founded entirely upon an undemocratically enacted Amendment inserted awkwardly into the U.S. Constitution.
The American people have never legitimized this vast expansion of Supreme authority--by, say, actually having their legislatures explicitly broaden the role of the Court as outlined in the Constitution via an honest amendment process. This absence of popular assent likely accounts for much of the animosity so many people show toward so many of the Court’s rulings. (And why almost every High Court nomination has become hysterical: those nomination hearings are the only input anyone really has into that increasingly micro-managerial yet largely uncheckable institution.)
The American people also, interestingly enough, haven’t demonstrated any serious or sustained interest in de-legitimizing the ever-expanding role the Court has assigned itself over the last hundred years or so. When I ask myself why not, I can only guess that most of us secretly prefer that intractable (or sometimes just controversial) social and political issues are removed from the public square and decided instead by nine cloistered jurists. (I think it was de Tocqueville who famously observed that America’s odd obsession with both religion and lawyers actually provides the glue which holds this fractious democracy together.)
Being as suspicious of the wisdom of the majority of my neighbors as the next person, I too am not so sure I trust them to consistently do a better job than the Supremes on the Big Issues of the Day. And I’m certainly convinced that the 14th Amendment, a bill who’s reverberations trouble our polity to this day (whether it’s authorship of those troubles is recognized or not), was as urgently needed as it was unlikely to be (voluntarily) ratified at the time.
Patrick: as for your comparison of the decision-making process of the Supreme Court with that of “a small city zoning bureau,” I do see what you’re getting at: jurisdictional issues aside, I suspect that all deliberative bodies confronting authoritative texts must engage in hybrids of both structuralist and “original intent” inquiry.
But those pesky jurisdictional issues are also important--and I would suggest even more fundamental. Just as zoning bureaus aren’t empowered, among other things, to address questions regarding the domestic relationships between children and their parents, the Supreme Court wasn’t originally empowered to address questions regarding the relationship between the citizens of a state and their elected legislature. Over the last ten decades or so, the Court has gaily widened its jurisdiction--but from an extremely “implausible” democratic foundation.
If a zoning bureau behaved similarly, relying upon whatever mix of methodologies, I imagine the public would become...perturbed. But they needn’t worry about the prospect: the Supreme Court has helpfully extended its authority (Kelo v. New London) over little old zoning bureaus too. Oy.
The American people also, interestingly enough, haven’t demonstrated any serious or sustained interest in de-legitimizing the ever-expanding role the Court has assigned itself over the last hundred years or so.
Exactly. Why? Because, as you say, the vast majority of Americans prefer it that way and, while objecting to particular decisions, presumably do not see the fundamental problems of legitimacy you suggest. One reason might be that, while, yes, the Court’s jurisdiction is now vastly more extensive than it was in the 19th century, so too are the powers of the other branches of the federal government. The case might well be made that the truly relentless encroachment (likewise not established via anything like an amendment process) has been by the executive branch. After all, presidential elections are no less the source of intensely partisan conflict between fiercely committed activists than court nominations are, and the results of those elections occasion no less animosity on the part of disatisfied citizens.
You suggest that the 13th, 14th, and 15th amendments lack democratic legitimacy. No less so than the outcome of any southern election before the Civil War and many after Reconstruction.
I have some problems with your post, as you might have expected.
First, I should clarify that I read the phrase “relentless judicial encroachment” to mean increases in the reach of the judiciary which are in some way questionable or improper. Thus, for example, if a particular amendment to the constitution explicitly added material, and judicial reach extended to encompass that material, I would not include that amongst “relentless judicial encroachment.” That’s not judicial encroachment, that’s a totally valid extension of judical power through constitutional amendment, exactly the way things are supposed to be done. In other words, I would argue that the question of whether “relentless judicial encroachment” has occurred is dependant not only on statements that judicial reach has grown, but that it has grown improperly. I take it that you feel this is the case, so I think we are on the same page in terms of understanding the issues. I would also include societal changes in this category- if Issue X is a valid realm for judicial decisionmaking, and Issue X was a small issue at the time of the founding, but is not a big issue, it is proper that judicial reach still cover Issue X, regardless of its size.
Second, you can’t just throw out comments like “for the first 100 years the bill of rights didn’t apply to the states” without noting that the 14th amendment was passed after about 75 of those years. You note this later, but you seem to view it as almost a separate issue. Or at least your rhetoric does. I don’t want to get into the usual lit crit position of bickering over tiny rhetorical points, but this one at least I feel is misleading.
Third, as for the legitimacy of the 14th amendment, frankly, I haven’t much to say. First, the legalities of the civil war are troublesome in their entirety. Really, war doesn’t much work in terms of law at all. I think you may be asking too much here. There was basically no democratically legitimate way to handle the civil war, or its aftermath. Any legitimacy its historical progeny have needs to stem from the century plus years where, after democratic norms were restored, the american people were happy with the situation as it stood.
This argument may seem like a cop out, but really, its all the world has ever had in terms of war and law. To demonstrate by means of extreme (but true) example, the legal position the north took in embarking on the civil war (that you can’t secede from the US) was probably less justified than had they decided that the south had validly seceded, then concluded that an unfriendly slaveholding neighbor on the border was unacceptable, and razed the south to the ground. You can’t have a democracy without certain starting conditions, and one of them is that you don’t have half your population under military rule. But we did have that, and it was probably for the best. The Founding of the USA, the conquest of the native americans, and the civil war, are basically three big holes in the otherwise well reasoned legal history of the United States. This is probably necessarily so. They all need to be analyzed on other grounds than the legal.
Basically, as it stands, we do have the 14th amendment. It says what it says. I think the precedent related to it is well reasoned; by necessity, the court must give effect to clauses like “privileges and immunities” and “due process,” or else they are rewriting the constitution by the deletion of clauses. Exactly how to do this was necessarily contentious. The court’s resolution was one of several possible interpretations. Thing is, this is how it has to be. When the legislature writes an unclear law, the court still has to apply it. So, the court does so, and eventually creates a series of precedent that is more clear. The remedy if one objects to this precedent is to overrule it with new legislative law. Or, don’t write unclear law.
I’d defend the partial incorporation process further, but you really haven’t attacked it.
I’d also add that you seem to underestimate the power of judges at the point in history where natural law was considered a viable theory. You seem to view judges as relatively restrained by original intent way back in the 1800s, I’d suggest instead that judicial “making stuff up” was much more widespread back when a law could be thrown out for violating the natural rights of man. But, of course, past judicial sin can’t justify present; it merely provides context.
You again mention, near your closing, that the court was not originally empowered to address disputes between an individual and his state government. But you are citing the wrong original intent. The relevant original intent is the one that existed at the time of the passage of the 14th amendment. While the exact meaning is questionable, the fact that the 14th amendment was meant to stop local governments from abusing ex slaves is incredibly well documented. So clearly the original intent at the time of the founding has been modified, as per amendment. As is appropriate.
Oh, and ironically, the kelo decision involved the court SURRENDERING its jurisdiction over those little city bureaucrats. :-)
That first paragraph should read “if Issue X is a valid realm for judicial decisionmaking, and Issue X was a small issue at the time of the founding, but is NOW a big issue, it is proper that judicial reach still cover Issue X, regardless of its size”
moderators, please help?
Sean, you wrote: The case might well be made that the truly relentless encroachment (likewise not established via anything like an amendment process) has been by the executive branch.
A crucial difference between the Judicial and the Executive and Legislative branches of the federal government resides in the Judicial branch’s unique (and self-appointed) authority over the other two. Another is the democratic responsiveness of the President and Congress versus the insulated and unaccountable nature of Supreme Court Justices once they’re confirmed. The encroachments of the executive branch have, at every step, been subject to challenge by the general electorate--as well as by the other two branches of government. If the office of President now boasts far more power than formerly, it’s only because the Court, the Congress, and the general electorate have regularly assented to that expansion of executive authority. In stark constrast, the only checks the President, the Congress, and the electorate at large have upon the Supreme Court is the comparatively crude instrument of nomination and the extreme (and deliberately arduous) option of amending the Constitution itself. I don’t think any comparison between the executive and judicial branches hold up under “strict scrutiny.” At least not in the context of how vulnerable those institutions are to public oversight and restraint.
You went on to write: You suggest that the 13th, 14th, and 15th amendments lack democratic legitimacy. No less so than the outcome of any southern election before the Civil War and many after Reconstruction.
The democratic illegitimacy of Southern States before the Civil War happily couldn’t effect the legitimacy of elections and legislation enacted elsewhere. That was one calculated virtue of a Federalist system of government. The same unfortunately can’t be said regarding the post-Civil War enactment of (particularly) the 14th amendment.
But I’m pleased to see that we agree that the American people seem largely content to subject more and more of their lives to the authority of nine unelected jurists rather than relying upon the wisdom of a majority of their fellow citizens. I just think it’s important that, since that’s nontrivially the case, we each concede as much. I also think it’s essential that with each further extension of their role, the Supreme Court takes care to defer as often as possible to current “indicia of consensus”. It’s the extent to which they don’t do so, I suspect, that will invite social and political strife.
Patrick, you wrote:
First, I should clarify that I read the phrase “relentless judicial encroachment” to mean increases in the reach of the judiciary which are in some way questionable or improper.
That would be a rough reading. I’m actually ambivalent about the post-Civil War expansion of the Supreme Court since Gitlow v. New York (1925). Mostly because I can’t imagine how things might have proceeded otherwise (and since I doubt I’d want to reside in a nation which developed in the absence of the 14th Amendment, despite its democratically dubious underpinnings and its many unanticipated subsidiary effects). I’m also fairly deterministic about the past and future trajectory of the Court. How, for instance, might that trajectory be reversed at this late date even via Constitutional Amendment without breaking the system? Nearly a hundred years of carefully balanced precedent summarily negated? How might such an amendment read? “The Supreme Court shall have no further jurisdiction over either legislation or court decisions arising from any of the Fifty States. P.S.: No trying to weasel out of that, either." But what about the cherished line precedents which have fundamentally transformed our nation into the (comparatively) egalitarian and liberal society we take for granted today? If The People ever do become annoyed enough to pull the jurisdictional rug out from under the Court, in other words, I don’t see how they can keep intact all the furnishings they’ve grown so accustomed to.
So..."improper"? No. That suggests that I can see and argue for some better alternative to the muddled status quo. But “questionable”? Always. If I’m disturbed about anything, it’s the historical lacuna that seems to surround the changed role of the Court. Rarely do you hear anyone bluntly explain, when asked why modern Court rulings are so controversial, that when the Bill of Rights was assumed to restrain only the Federal government, straightforward language like “Congress shall make no law abridging freedom of speech, etc.” meant exactly that. None. Nada. Null. Zippo. Same with “the right to bear arms” and so forth. While the states were free to argue and debate and variously interpret such matters for themselves, in a locally responsive fashion, the Federal government was prohibited from engaging in such matters in any way whatsoever. But. Once you begin selectively (and let’s not forget inconsistently) applying the Bill of Rights to the states, all those provocative questions about the definition of obscenity, and community standards, and reasonable limitations on “ordered liberty,” etc. come to the fore.
If our lives our now run in myriad ways by distant jurists, and those jurists are now mostly reliant upon a myriad of clever interpretations of precedent and the public mood, I think it’s important to point out why. (At the very least, doing so would discourage clueless debates from politicians and pundits about who’s a “strict constructionist” versus who’s an “activist"--since every living jurist is clearly a variation of the latter species.)
You continued: Second, you can’t just throw out comments like “for the first 100 years the bill of rights didn’t apply to the states” without noting that the 14th amendment was passed after about 75 of those years. You note this later, but you seem to view it as almost a separate issue.
Heh. In the spirit of The Valve, I’ll respond to that charge this way: our respective relationships to the text I intended to write diverge in interesting ways.
The 14th Amendment, its troubling origins, and its too often unremarked responsibility for the modern jurisdictional expansion of the Court, was the main point of my previous comment. It would indeed be “misleading” to footnote (or neglect to mention at all) the 14th Amendment in even a casual discussion of the confusing jurisdictional leaps and bounds of the Supreme Court. That one so rarely hears any reference whatsoever to the 14th Amendment and “selective incorporation” during discussions of this kind is what I’ve been complaining about, after all.
I’d defend the partial incorporation process further, but you really haven’t attacked it.
You’re right. I haven’t. Though I doubt I’m as enthusiastic as you seem to be about the then-novel arguments offered in, for instance, Gitlow v. New York, I don’t really have any particularly palatable alternatives to those arguments either. But it’s refreshing to notice someone else noting that the root of the contention regarding the Court’s role, both then and now, resides in those momentous decisions. Decisions which were anything but textually obligatory. And decisions which have transformed our nation in many ways into a funhouse mirror image of its Founders’ explicit Federalist intentions.
Oh, and ironically, the kelo decision involved the court SURRENDERING its jurisdiction over those little city bureaucrats.
Ha. Whatever the outcome of Kelo, the Court would only really have surrendered its jurisdiction if it had refused to grant cert at all. (Or refused to grant cert to previous cases which lower federal courts assumed granted them jurisdiction in this one.) Whether “little city bureaucrats” are given permission by the Supreme Court to engage in one activity or another, or prohibited by the Court from engaging in same, doing either strikes me as something considerably less than a surrender of jurisdiction.
In stark constrast, the only checks the President, the Congress, and the electorate at large have upon the Supreme Court is the comparatively crude instrument of nomination and the extreme (and deliberately arduous) option of amending the Constitution itself.
True formally, but not informally where the Court had the other branches to deal with and, yes, it’s sensitivity to popular opinion to consider.
The democratic illegitimacy of Southern States before the Civil War happily couldn’t effect the legitimacy of elections and legislation enacted elsewhere.
Huh? How about the ratification of the Constitution and of every amendment other than 13, 14, and 15 through the 1960s; every presidential election; and, by logical extention, every piece of legislation passed by Congress? If the legitimacy of each one of those is not tarnished by the exclusion and then disenfranchisement of a subject population by terror (exercised by both state officials and popular actors, let it be noted, and much more brutal, extended and violent than federal occupation during Reconstruction) then, by your own reasoning, neither should the 14th amendment be.
Frankly, this whole question about the legitimacy of the 14th amendment is a wing-nut canard, espoused (as I discovered during a quick, dispiriting trip through the blogosphere) by, among others, people who believe that a conspiracy of Jews controls the world, that African-Americans are not genuine citizens of the U.S., and that the 14th amendment was always a conspiratorial plan for federal domination of the south). It’s absurd and ugly.
Heh. I’ve been kind of worried all night that my post wasn’t adequate, but the things in it I feel are poorly written you didn’t go after, so I guess I’m safe. :-)
I’m not entirely certain where you are going with the democratic legitimacy thing.
What I was trying to say, and I feel I said poorly, is that yes, I agree there are certain events in our nation’s history which simply can’t be justified on legal grounds. The events surrounding the civil war are some of them.
However, I think there are a lot more of these than is generally, umm, thunk. (I can do that here. Thunk is word which does not contribute to sentence meaning, but its got the other kind, so I’m cool.) The enactment of the Constitution, for one, is pretty shady in terms of democratic theory. Vast numbers of people were not permitted to have a say, and in fact were actively oppressed. For instance, all the slaves. And the Loyalists. Arguably women as well, although we could debate over whether a system in which political preference is expressed at a family level through the male can meet a minimum level of democratic legitimacy. Similar legal problems crop up whenever new lands or groups of people are annexed into the United States, like, say, native american tribes. If the 14th amendment needs be looked at suspiciously because of its origins, so does the entire Constitution itself.
Frankly, any time the guns have come out, the law doesn’t provide much explanation.
I just don’t think that much matters. The origins of a law are a lot less important than its present characteristics.
For example, there are future interest laws which exist because centuries ago, specific english royalty got themselves into trouble and demanded that the court alter the law to get them back out. That definitely lacks democratic legitimacy. But the use of those laws regularly for centuries worth of common law history adds democratic legitimacy on its own, and its reasonable that the courts continue to apply them until the legislature overturns by statute.
Hmm. Maybe we’re coming from different backgrounds here. I’m a law student, and from where I stand, the fact that the 14th amendment is the source of much modern federal power seems self evident. Were someone from school to not know this, I’d stare at them in amazement.
Anyways, I think this discussion is winding down. I’m less bothered by non obligatory rulings by the courts as long as those rulings are credibly better than the available alternatives, which I think they were. Given that our disagreements are disagreements regarding facts, but are largely based in our respective degree of curmudgeon-ness (again not a word, but I have been liberated from the strictures of textualism so I do not care), we might as well let this go.
The fact that the events surrounding the enactment of the 14th Amendment have been exploited by various “wing-nuts” makes neither those events nor that Amendment’s relationship to the expanding jurisdiction of the federal judiciary a “canard.” (Commonly defined as “a deliberately misleading fabrication.") A number of similar conspiracy theories, after all, have been spun based upon the events surrounding the creation of the Federal Reserve Bank and its effects on international monetary policy. Would we be similarly justified in dismissing any inquiry into the origins and effects of the Federal Reserve on that basis? Are our lines of inquiry to be dictated by the obsessions of the lunatic fringe?
As Patrick seems to recognize, the issues I’ve been going on about regarding the origin of the 14th Amendment and “selective incorporation” aren’t tendentious: this is all settled law and conventionally agreed-upon historical fact.
Patrick’s view of those laws and facts, as I understand it, can be summarized as: “So what, really? We are where we are.” And I pretty much agree.
I’d simply add that not going on about the things I’ve been going on about here simply because there’s little to be done about those things even should we want to--or because “wind-nuts” obsess over them--prevents many people from understanding exactly how and why our federal jurisprudence came to be in the contentious state that it’s in today. (I’d also note that your final “conspiracy theory"--that the 14th Amendment had far more to do with good-old-politics-as-usual and the calculated political ruin of Southern Democrats than benign abolitionist sentiment--actually isn’t too far from the historical record of Reconstruction. But I don’t want to send you on another glum trudge through the blogosphere, so I most certainly won’t note that. Heh.)
As for your remark that the democratic illegitimacy of the Southern States due to racial disenfranchisement did indeed effect the legitimacy of the Constitution and at least two of the three branches of the Federal government: you’re correct, of course. Assuming, that is, that we retroactively set yesterday’s standards of “democratic legitimacy” to today’s comparatively rarified heights. (Which seems to be your position.)
Under electoral standards that demanding, little to nothing about the U.S’ governmental framework can boast any democratic legitimacy at all--for the simple reason that the vast majority of its instruments were drafted and passed when landless men, all women, as well as most racial minorities, were disenfranchised and generally politically oppressed to one despicable degree or another.
That’s certainly a very troubling conclusion. However, if we adjust our democratic standards to the standards of the era we’re considering, we can once again affirm the existence of an (albeit imperfect) democracy. At least so long as the fortunate few who have been granted the franchise are free to exercise it in the absence of undue coercion.
If we do adjust our standards to those of the era under consideration, the appalling circumstances surrounding the enactments of the 13th, 14th, and 15th Amendments once again become exceptionally problematic. Even when judged by the lower standards of the day.
If, on the other hand, we don’t adjust our modern democratic standards to those of the era under our consideration, we seem to be left with no democratic foundation at all. In neither Athens nor Republican Rome, in neither parliamentary England nor the U.S. of 1789.
As for me, I vote for the former.
I agree that this discussion has about reached the point of diminishing returns. (For my reply regarding “democratic legitimacy” and the standards by which I think it ought to be judged, see above.) In any event, I certainly appreciated your input. I also appreciated that Sean allowed me to beat this gimpy horse around his yard for so long--despite the fact that it was seriously tangential to the thrust of his, er, post.
I’ll finish by suggesting to you that the vast majority of the nonlawyers who comment endlessly upon the Supreme Court known next to nothing about any of the stuff we’ve been discussing. (Stuff you digested long ago and no longer find the least bit bizarre.) And I really think this commonplace ignorance is a serious detriment to our public discourse about the Court and its changing role. Which is why I bang on about it so.
You’re right. Politics make strange bedfellows, and the fact that breathless accusations about the illegitimacy of the 14th amendment are commonplace among conspiracy nuts, but to my knowledge are not in fact topics of dispute in historical scholarship or jurisprudence does not in itself make the question unreasonable.
What does make the charge of illegitimacy dubious is, as Patrick said more eloquently than myself, special pleading. There is no particular reason to see the circumstances surrounding ratification of the 14th amendment as “exceptionally problematic.” Military occupation is not a more onerous burden than enslavement or state sponsored terror, and when the purpose of that occupation is in fact to protect a vulnerable population from certain oppression and disenfranchisement, I think obviously less so. (Your historical standards argument would have more credibility if there was evidence that enslaved African-Americans before the Civil War and disenfranchised African-Americans after Reconstruction accepted the legitimacy of a political system that subjugated them by force and law and if there were not evidence that among white Americans awareness of that injustice was not common. In other words, no retroaction necessary.) In any case, if your standard is the existence of “imperfect democracy” (and one whose legitimacy, as Patrick rightly suggests, is accepted in practice by the vast majority of the citizenry), then the 14th amendment presents no special cause for concern.
I’d also note that your final “conspiracy theory"--that the 14th Amendment had far more to do with good-old-politics-as-usual and the calculated political ruin of Southern Democrats than benign abolitionist sentiment--actually isn’t too far from the historical record of Reconstruction.
This, in fact, is not true. The legislative record shows quite clearly that the purpose of the 14th amendment was to make the Bill of Rights enforceable against state governments, with the aim of protecting freedmen from the certain oppression and disenfranchisement that, in fact, arrived promptly after 1877.
Is there a legitimate discussion to be had about selective incorporation, or about the way the 14th and 15th amendment were soon distorted? Sure, but whether it will take the shape you want is another question. (The Slaughterhouse decision would certainly have to be part of the record.) In any case, that is a topic completely separate from the legitimacy of the amendment itself, which I will continue to regard as a non-issue.
The only things I’d add at this point are:
1) The comments about how the court came to be in today’s contentious position seem to subtly imply that the court was not previously contentious. I don’t know if that’s intentional, but just in case, I’d like to note that this is not true. The court has pretty much always been highly contentious, straight out of the gate. Its probably inevitable, given that its a body of unaccountable people who’s entire job is to tell the public that its not allowed to do what it wants.
2) I think the “lower standards of the day” argument, if properly applied to the Constitution, can be properly applied to the 14th Am. as well. I see the treatment of Loyalists and Southern Democrats as basically analogous.
3) The facts regarding the civil war amendments and selective incorporation are settled, but the normative conclusions are not. For example, its settled that selective incorporation was a slow, difficult process where many people disagreed, and where it took over 100 years for a particular position to win out. Its not settled that this is somehow a bad thing.
Sean and Patrick,
To maintain that the circumstances surrounding the enactments of the 13th, 14th, and 15th Amendments were equivalent to the circumstances surrounding the enactments of all the other Amendments is to maintain that the period of the Civil War and its immediate aftermath also wasn’t exceptional. And I don’t find that argument very persuasive. On the other hand, if that grim period was exceptional--which is, I think, the generally accepted view--then that exceptionalism necessarily encompasses the horrific civil and legal circumstances of the time. You many not agree with my view on this, but I don’t think that makes it outlandish or sinister.
On a final note, I haven’t yet decided whether it’s funny or just depressing that in the thread of a blog post discussing the interpretation of texts my own comments have been so stubbornly misconstrued by the two of you. I’ve taken that treatment in stride up till now because I found the conversation rewarding anyway. But I don’t want to end my own contribution without responding to the charges and insinuations the two of you have persisted in leveling against me:
I’ve been variously accused of being “misleading” about something I went out of my way to emphasis (the 14th Amendment); of presenting fabricated information (regarding the easily demonstrated causal relationship between the 14th Amendment and the expansion of the federal judiciary); of believing that the current state of judicial encroachment is somehow “improper” and “a bad thing” (despite having explicitly denied believing anything of the kind); of believing as well that the Supreme Court has only now become “contentious” (despite having begun my remarks on this subject with a reference to Jefferson’s ancient outrage over Marbury vs. Madison); and of wanting any discussion of the above to go “in the direction I want” (and since I’ve had no particular direction in mind at all, that last accusation strikes me as especially strange.)
While I’ve refrained from ascribing nefarious motives to either of you, I haven’t, you may have noticed, received the same consideration in return. Which is unfortunate. I’m not sure whether merely mentioning such matters brands one as a reactionary adept of “The Constitution in Exile” in these parts, or what. But the repeated imputations really weren’t warranted. For the record: I’m neither a political conservative nor a supporter of some species of “strict-constructionism,” nor am I a bigoted anti-Zionist wing-nut wearing bedsheets. I’m simply someone who feels that these matters deserve more attention than they usually receive when people are opining about the Court. I may certainly be wrong, but I’m not malevolent.
Despite the sometimes unpleasant tenor of your comments, I did still find the discussion worthwhile. So thanks to both of you for contributing to it.
To maintain that the circumstances surrounding the enactments of the 13th, 14th, and 15th Amendments were equivalent to the circumstances surrounding the enactments of all the other Amendments is to maintain that the period of the Civil War and its immediate aftermath also wasn’t exceptional.
The first claim is not being made, dandragna, and the second doesn’t follow. There’s no need to regard historical situations as equivalent to note that what’s emphasized about one situation (military occupation, say) no more tarnishes the legitimacy of elections than another (disenfranchisement by state terror, say). But I would say in fact that whatever coercion was experienced by the white voters of the south during Reconstruction in fact pales massively by comparison to the coercion experienced by antebellum slaves and post-Reconstruction freedmen. (By contrast, that is to the nonenfranchisement of unpropertied or women voters at various historical moments, it took great political will, allocation of resources, and the active use of violent repression to maintain the slavery and Jim Crow systems.) And since, by comparison to either the repression exercised to enforce slavery or to disenfranchise postbellum black voters, military occupation during Reconstruction served a legitimate and just purpose, it should not in the slightest be a source of special concern to us. Quite the contrary.
As Patrick noted, “encroachment” does in fact imply “improper,” it’s usual meaning being a near equivalent to trespass. And your remarks do imply that you have a sense of where a discussion of incorporation should go--that, as you’ve said, it’s a record of illegitimate judicial expansion. My sole point on this issue is that, say Slaughterhouse, could in fact show that the Supreme Court early on distorted the clear purpose of the privileges and immunities clause to limit the application of the 14th amendment.
I do not in the slightest mean to accuse you of malevolence, but merely as I mentioned earlier of special pleading that emphasizes one arguable injustice (and suggests that it is in fact among the very most salient facts in the modern life of the U.S.) at the expense of taking notice of vastly greater injustice. I appreciate your decency in this conversation. But that does not alter my view that the claim that ratification of the 14th amendment was uniquely illegitimate or undemocratic and that (as you suggest) it has been the cause of the loss of a legitimate constitutional order is a canard, and one that, though I’m sure you’re not one yourself, is wielded by people of malevolent purpose.