On the one hand, I admire the spirit of these classroom heretics. It represents a deep-seated American skepticism toward authority, be it political authority or intellectual. You can see this skepticism in some of our earliest literature, like "The Legend of Sleepy Hollow." In that story, the learned school teacher is held up as an object of scorn and derision by the strong and practical Bram Bones. It's kind of like Disney's Beauty and the Beast, only in this version, Gaston is the hero and the professor really is just crazy. I remember my advisor as an undergrad at Walsh University commenting on "Sleepy Hollow" being an example of how once an idea gets into a culture, it never quite goes away. We still have a strain in America of preferring the rough and manly man to the nerd, a strain that can be seen in any number of Adam Sandler movies or Animal House. The classroom skeptic objecting that the professor's fancy readings of stories flies in the face of good 'ole common sense and is just meant to give the professor an excuse to show off and lord his learning over other people is part of this tradition.
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| NERRRRRRRRRRRRD! |
I've dealt with this strain of thinking before as a commenter on literature. For example, when I wrote about various readings of homoeroticism in Lord of the Rings, I got a couple of people insisting that because Tolkien was a devout Catholic, he didn't intend for anyone to read the relationship between Frodo and Sam in a romantic way, and therefore any reading of Sam and Frodo's relationship that left room for romantic feelings was unequivocally wrong.
The argument against "common sense" readings
It's usually at this point that annoying literary experts like to invoke something called the intentional fallacy. Introduced by W.K. Wimsatt, Jr. and Monroe C. Beardley, the intentional fallacy sought to tear down what had long been considered to be (and still is considered to be by most ordinary people) the "common sense" approach to literature, which is that "in order to judge the poet's performance, we must know what he intended." (Wimsatt and Beardley use "poet" throughout their essay, as that is the art they are considering, but their argument works nearly the same for other works of art.)
Wimsatt and Beardley argue that although a work of art obviously originates in the mind of the poet, "yet to insist on the designing intellect as the cause of a poem is not to grant the design or intention as a standard." The gold standard is not to arrive at what the poet meant, but what the poem itself says. There are several reasons Wimsatt and Beardley see for this:
1) The design or intention is not available to us, except in what is in the poem itself. "How is (the critic) to find out what the poet tried to do? If the poet succeeded in doing it, then the poem itself shows what he was trying to do."
2) Just like you judge a car by how it works or a cake by how it tastes, so with a work of art. Poetry doesn't mean; it is. Critically, Wimsatt and Beardley point out, this makes poetry different from "practical messages," which "succeed if and only if we correctly infer the intention." Whether this matters when looking at non-fiction like, say, a constitution, we shall consider later.
3) When we read a poem, we should read the words as the words of the speaker of the poem, not the author. The author might have views at odds with the speaker in the poem she created.
4) Authors revise works. Does that mean the intent changes? Which intent in the creative process is the one we should take as the "real" intent?
As a society that believes strongly in intellectual property, we have come to accept that the author maintains not only commercial interests in her work, but controlling interest in how those works are interpreted. New Criticism, though, which adopted the intentional fallacy as a principle, does not accept "the authority of the poet outside the poem." Instead, "the poem belongs to the public," because "it is embedded in language, the peculiar possession of the public, and it is about the human being, an object of public knowledge."
This might sound like sophistry, but I think even with what Wimsatt and Beardley called "practical messages," we occasionally see an application of the principle. The other day at work, a person above my immediate boss sent me a calendar invitation for a one-on-one meeting. I don't normally have one-on-one meetings with this person. The request came a day after we announced a rather significant reorganization within my office. I wondered: was I about to find I'd been made redundant by the reshuffle? The next day, however, I talked to my teammates and found we'd all gotten the same meeting request. We then deduced--correctly--that this was more of a "let's talk about your feelings after the announced reorg" meeting.
When I talked to this person, I told her how all of us had been scared when we got the meeting invitation, because we didn't know when we got them that we weren't the only ones getting them and there was no explanation of what the subject of the meeting would be. She acknowledged that she should have been more careful sending the invitations out, although it was, of course, not her intent to frighten us.
Judging the author's intent in this case is important to how I feel about the author with whom I work, but it isn't important to judging the message itself. The message did something the author did not intend. If a meeting invitation can do this, how much more a work of art.
So how do you read a text, then?
Instead of trying to deduce what an author wanted to say in a text, the correct subject of literary studies is to look at the intent of the text. If we judge an engineer's intent by how the car works, then for an author, all we have to go on is the text they left. We can still use biographical and historical information in our study of the work, but it now plays a different role. Rather than using it to find the author cluing us into hidden interpretations not found in the work itself, we use it to establish ground rules for "the public" to use.
For example, if a word meant something when the author wrote it that it doesn't mean now, we should use the meaning that was in circulation when the author wrote it. If a text from 1803 says someone was "gay," that means they were happy. If a text refers to something that happened in the real world, we can research to find out what the author knew or thought he knew about that real event.
What we can't do is look at events in the life of the author or extratextual statements the author made about the work and use those to try to intuit what he really meant in a work of art. The work of art may say things we think the author clearly did not mean to say, but if they are in the text, then the text matters more than our psychoanalysis of the author. If Tolkien disapproved of homosexuality but his text contains images and interactions between characters that readers often see as involving varying degrees of same-sex romantic feelings, then it's in the text whether Tolkien wanted it there or not.
This does not mean we go to the extreme of favoring the "intent of the reader" over the intent of the text. We don't read more homoeroticism into the story because we happen to enjoy that which is homoerotic. We don't ignore attitudes present in a text because we dislike them. We are disciplined and keep within the words and spirit of the text. However, "intent of the text" standards do tend to lead to more freedom of interpretation than "intent of the author"-based ones, because rather than assume a unitary mind of genius and a single, coherent purpose, we are permitted to view the text as being at times in tension with itself.
What's this got to do with reading legal texts?
You might say that it's well and good to read a novel or sonnet like this, but with the law, shouldn't we try to understand the original meaning of the authors? Isn't a law more akin to what Wimsatt and Beardley called a "practical message" than a poem? Wouldn't an "intent of the text" standard lead to too much freedom of the reader, leading to an inability to ever know what any law meant and, eventually, to anarchy?
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| It's simple. We just get 1,000 psycho-analysts together to read all the surviving correspondence of all the people in this painting, and.... |
In the case of the U.S. Constitution, of course, determining the intent of the author is an incredibly complicated task. It had many authors, some of whom were at loggerheads with each other throughout the writing. It is a compromise document that went through multiple rounds of edits. Whose authorial intent do we give precedence to? We have, in The Federalist Papers, an extra-Constitutional record some of the key writers left explaining their thinking behind the writing. To what extent is that extra-Constitutional record authoritative in determining authorial intent? And what to make of the fact that the Constitution didn't end in 1789, but has been added to over time, with some additions and changes explicitly overwriting other parts?
Dobbs vs. Jackson Women's Health Organization and Alito's attempt to recreate the intent of the authors
Justice Alito, who wrote the majority opinion in the case overturning Roe v. Wade as a precedent, seemed to lean, whether he was aware of it or not, toward an "intent of the author" reading. On the first page of the opinion, he lays out the question before the court as whether "the Constitution, properly understood, confers the right to an abortion." This "properly understood" suggests that there is a single, correct reading of the text. It's an assumption in reading heavily influenced by Biblical hermeneutics, which itself is a large part of the reason why the West assumes "intent of the author" to be the common-sense approach to reading. The opinion assumes there was genius behind the writing of such authority that there is only one way to read the product of such genius.
The crux of the issue for the six justices who went along with the decision was whether the right to an abortion was meant by the term "liberty" in the 14th Amendment. Roe v. Wade rested heavily on the argument that a right to abortion was implied by the term "liberty" in the amendment, the first article of which reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Roe made the argument that abortion was guaranteed by implication in other amendments, but because Casey, the 1992 case that partly upheld Roe, mostly focused on the 14th Amendment, so did the court in Dobbs. Alito proceeded to undermine the argument that "liberty" implies the right to an abortion through a three-step process:
First, he insists there should be a high standard for applying implied, rather than explicit, rights. To claim a right was understood as implied when written, there is a burden of proof to prove that implied right is "deeply rooted in our history and tradition." He indicates that the court was "guided by the history and traditions that map(ped) the essential components of the Nation's concept of ordered liberty." This is an extremely non-textual source of interpretation, and many have contested the court's prowess in historical analysis, but the court felt highly confident both that it was an appropriate source to use in determining the meaning of "liberty" and that they had analyzed it correctly.
Having established the added burden of proof for implied rights, he states that "liberty" isn't a very useful term. He doesn't say why, but one can suppose he means that liberty is vague and means something different to everyone. He doesn't consider that this is exactly why the term is there. If we think of a Constitution as a car and judge it by how it works, then one thing we can say about this particular constitution is that it seems to become increasingly difficult to change the further from its original writing we get in time. Perhaps the vagueness of terms like "liberty" is there to compensate for this feature. Future generations may not be able to keep making amendments, but in order to help offset this flaw in the design, there are words in it that have had protean meanings in every generation. They were vague when written, they're vague now, and the vagueness is a feature, not a bug. Rather than consider this (because it isn't explicitly stated in the Constitution that we should do so), the court instead tried to establish what kinds of liberty people had in 1868 and suggest that the Constitution only guarantees those liberties and no more (although this standard also isn't explicit in the text itself).
For the majority justices, because "liberty" is vague and doesn't explain what sorts of rights "liberty" should apply to, that means abortion isn't explicitly covered as a right by the term. That being the case, the heightened "deeply rooted in our history and tradition" standard applies.
Having first stated that implicit rights have a higher standard of proof than explicit ones and then arguing that the right to an abortion as a subset of "liberty" is an implied right, one that should be established only if we can see that this right has been accepted broadly throughout the nation's history, Alito moves to his third and final step. The court plays historian to determine what "liberty" might have meant--or more precisely what it did NOT mean--in 1868 when the amendment was ratified. The court found that:
Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.
Since the world didn't think of abortion as a right one's liberty entitled them to in 1868 anymore than they thought murder was a right protected by "liberty," it is not protected in the Constitution. If the nation means to enshrine abortion as a right, it must do so explicitly in a law. It cannot expect the court to keep applying its understanding of modern opinion on abortion in order to change the meaning of a text from what its authors meant by it.
The unspoken context of the broken balance of power
It might be small comfort to those who find the decision deeply upsetting, but the opinion does, I think, leave open a possibility for making abortion legal by an easier road than might have once been thought. Because Alito claims the Constitution doesn't say anything about abortion, that means that if Congress could pass a law protecting the right (haahahahhahahhaha...Congress pass a law...but I digress), that law would be constitutional. Unlike the court's decision when it struck down a New York gun law, abortion doesn't have a Second Amendment to overcome. It wouldn't take an amendment to protect abortion, just a law.
Of course, nobody expects both houses to pass such a law, even though about sixty percent of Americans think it should be legal more or less on the terms Roe set forth. The reason we look to nine godlike wise people in robes to rescue us with their sanity when the law fails us is because the law seems to always fail us. The Federalist Papers explained how the Constitution was meant to protect both from the tyranny of the majority and the tyranny of the minority, but the line between protecting the minority and tyranny of the minority can be pretty thin. That 39% of America that wants abortion to be illegal happens to be a majority in a large number of states, and those states each get two senators. Ergo, the outsized political influence in one house of Congress from a minority group.
It's the same reason we can't get legal weed, in spite of polls suggesting nearly everyone wants it. It's the same reason we've twice in recent memory ended up with a president for whom a majority of people did not vote. We have a system that is showing its age. If we were to set it up now from scratch, it would never look like this, but because our system is so intractable, we're likely stuck with it forever. We're the beta version of democracy, and we have a lot of bugs.
There's a small part of me that almost welcomes this decision, because maybe it will force Congress to do its job. Maybe it will fix the system, even if it does so by breaking it for a while. But I think most of us doubt that's a likely outcome. When the court recently made it harder for the EPA to enforce emissions laws, one environmentalist criticized the decision by saying the court "was insisting on a clear statement from what it knows is an effectively dysfunctional body." In other words, what was really devastating was that the court was saying if Congress wanted to give the EPA a certain authority, they should say so in clear words, but they know damn well Congress isn't capable of that, because Congress doesn't work.
Nearly all of us probably agree with this assessment. On some issues, there is a minority who perhaps welcomes the dysfunction. Coal companies probably aren't that unhappy that Congress doesn't work well for the interests of the majority. Right now, neither are anti-abortion activists. But it's not good for any of us in the long run. We know that. That's why the decision is upsetting. Yes, we ought to have an explicit law saying abortion is a protected liberty, but we don't, and we're not likely to get one, even though most people want one. That's why we look to justices to be wise and benevolent gods who intervene to fix the other branches when they don't work.
Intent of the text and flexibility in a failing Republic
Am I cheating by wanting the court to read the term "liberty" the way 61% of people today read it, instead of the way people in 1868 read it? I said that when the meaning of words shifts over time, we should prefer the original meaning. But that's truer for denotative meanings than connotative ones. To use a somewhat facetious example, if the Declaration of Independence had stated that one of our endowed rights was "the pursuit of gayness" instead of "happiness," that wouldn't be an argument for gay rights. Gay has a different denotative meaning now than it did then.
But words like "liberty" are nearly all connotation and little denotation. When those words appear in a document, they invite a sort of freedom in the reader. Spousal abuse was accepted and expected in the first century, but few Christians today think that spousal abuse is one of the things Paul's explanation of love in 1 Corinthians allows. Hardly any pastor would say that because Paul wouldn't have objected to it in a husband, it must be part of what 1 Corinthians means. Paul wrote words that were greater than him, which means they mean things he himself might have objected to. He was brilliant, but also limited by his time, which means the fullness of what he wrote wasn't even apparent to him. He certainly didn't have full control over it.
That's why it's better to read from what the text says than what we imagine authors would have agreed or disagreed with about what the text says. In 1868, assumptions about women did not permit them to have abortions in many cases. Assumptions about women also meant they couldn't vote or own property or have sex with men they weren't married to or work in the profession of their choice. Would the court apply these standards to EEO laws prohibiting sexism? Say it's not in the Constitution?
Some are worried it might, but I doubt even this court has the guts to go that far. That's because whatever the court might say about the importance of explicit intent of the authors of the Constitution, it also knows there is a limit to this kind of reading. As others have pointed out, even when Clarence Thomas suggested following up this decision with a number of other reconsiderations of implied liberties, he did not mention Loving v. Virginia, the case that overruled miscegenation laws. The Constitution has changed its explicit views of race since 1789, but there is no Constitutional amendment mentioning marriage between races. Still, I doubt this court would go back and use historical analysis to relook at miscegenation laws and argue the Constitution doesn't outright ban them. That's because whatever the court might say in its high-minded and humble "we are but poor stewards of the words given to us" approach to this case, it very clearly is happy to decide for itself what "liberty" means by its own standards, but only when it agrees with those standards. Not when 61% of the people agree with those standards.
The Constitution is full of contradictions and tensions that threaten to tear any reading of it apart. Nearly any text about anything that matters is. Authorial intent readings seem humble, because they place the reader at the feet of the master who wrote the words, but in fact, this approach to reading is often a ruse to force a reading the reader prefers and use an argument from authority to defend it. These kinds of readings sometimes force us to seek for a unity that doesn't exist within the riven and difficult text.
The founding parents knew they were taking on a hard job. They did the best they could. That the result wasn't a perfect success doesn't detract from their accomplishment. By focusing on the accomplishment itself in the form of the text, we have the freedom to in turn do our best to deal with the problem we face in running a democracy. Within this freedom is the only space to fill in the inevitable imperfections. Americans at their best are nothing if not pragmatic. If the rules don't work, we fudge the rules. As the 1935 case Home Building and Loan v Blaisdell found, we should not always read the Constitution with "literal exactness like a mathematical formula," especially when the exigencies of the day obviously demand something else. That same opinion argued that even though the Constitution clearly dictates that no state shall pass any law "impairing the obligation of contracts," still states should be able to alter contracts to help the indebted in times of crisis because
"into all contracts, whether made between states and individuals or between individuals only, there enter conditions which arise, not out of the literal terms of the contract itself. They are superinduced by the pre-existing and higher authority of the laws of nature, of nations, or of the community to which the parties belong. They are always presumed, and must be presumed, to be known and recognized by all, are binding upon all, and need never, therefore, be carried into express stipulation, for this could add nothing to their force. Every contract is made in subordination to them, and must yield to their control, as conditions inherent and paramount, wherever a necessity for their execution shall occur."
That's American pragmatism. We have a very good Constitution, and the balance of powers works most of the time, but when it isn't working, we don't wring our hands about how it doesn't work. We stick a penny in the fuse box and make it work. Believing that when the Constitution was written, they slew a ram and thus began the third covenant doesn't give us the freedom and flexibility to deal with our problems. That's always and only going to serve the interests of people who want to turn back the clock. Sticking to the text, especially a text like the Constitution that seems to invite open readings, is a better option.
It's a dangerous option, of course. It can lead to anarchy if taken too far. The way to avoid going too far is to take the text seriously without taking it as holy writ.
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