Reading the Constitution "the way the founders meant it," part two

We can be forgiven for thinking that reading is easier than it is, that meaning is less elusive than it is. We start reading at a young age, and when we do, we feel there aren't that many ways to interpret, "See Dick run." Maybe we all suffer from the delusion that what comes after Dick and Jane is really just an addition of more complicated words that hide a still simple meaning, that all we do between kindergarten and grad school is move from, "See Dick run" to, "Perceive Richard perambulate." 

In fact, though, reading is incredibly complicated, and it doesn't matter much whether you're operating from an "intent of the author" or "intent of the text" point of view. Proponents of both probably prefer their approaches because they think that in them they have found greater simplicity, but both have their difficulties. 

If we think the best way to read is to try to understand what the writer meant by X, we sometimes have to play psychologist or historian or sociologist in a way that may never lead to conclusive results. Hell, how often do we all say things when we struggle ourselves to understand what we mean by them? And that's in spite of having essentially all the inside information possible. Humans always have multiple, overlapping and sometimes contradictory reasons for the things they say. Looking to the writer to sort out what the psychologically complicated writer meant isn't always going to help make sense of things.

On the other hand, an intent-of-the-text approach has its own problems, because it can be hard to know where to stop interpreting. If a Shakespeare play includes a line that says, "There is no clock in the forest," and you see links between that and some French literary theorist's work on temporal assumptions in pastoral literature, does it matter that Shakespeare would have had no idea what you were talking about? If you see a conflict in ideas about race in the character of Shylock, does it matter that Shakespeare himself wouldn't have been aware of those conflicts? At what point does this re-reading of an older text become an exercise in injecting our modern ideas into it? Or is it appropriate to read our modern ideas into it, because modernity has, we hope, more understanding of the topics now than the writers themselves did? 

When I wrote about author-centric and text-centric approaches to reading the Constitution a few weeks ago, it may have sounded like I was arguing that text-centric approaches are better, or that author-centric approaches are too simplistic. That's not entirely the point. I don't think either text-centric or author-centric approaches are entirely satisfying. A good reading of nearly any text involves at least some of both, and a good reader will instinctively know which kind of reading to apply based on the nature of the text itself. The more important point is that reading isn't easy. People who think it is, or who have political motivations to make it seem like it is with a given text, are happy to jump from author-centric to text-centric readings and back again without even noticing they're doing it, acting the whole time like whichever mode they're operating from is the natural and obvious one.  

"The founding fathers would be rolling over in their graves"

One conservative author-centric tactic is to conjecture on how the founding fathers might have reacted to American society today. What would Madison, Jefferson, Monroe, Hamilton, Franklin, etc. have thought of same-sex marriage? Drag shows? Divorce rates of around fifty percent? Out-of-wedlock children? The conjecture is usually that the founding fathers would have been aghast, would have wondered where America went so wrong. This is based on the fact that (so we believe) these things did not exist in 1789 America, and to the extent they did, they received society's unmitigated disapproval. Therefore, any political argument that the Constitution allows for--much less approves of--such social trends is unthinkable.

It has a certain common-sense appeal, but there are reasons to be suspicious of the intuitive appeal. Yes, if Jefferson had been given a crystal ball and seen visions of the future that included a gay wedding and a drag show with no further explanation, he might have thought his future country was destined for the judgment of Sodom and Gomorrah. If, however, he had been told about all humanity would learn in the ensuing centuries about science and human nature and comparative religion, of all that would happen in world history, he might have a different opinion. In a different hypothetical scenario, what if Alexander Hamilton had drunk from the fountain of youth in 1789 and lived until the present? Would he have continued to think like a man of his class, race, and time in 1789, or would he have come to think like a modern humanist neo-liberal? 

It's an impossible question to answer, of course, which only points to the limitations of author-centric readings. 

Reading is hard, but not impossible

I get why people want to think that reading is easier than it is, and not just people whose political opinions I disagree with. When I was in graduate school, I was subjected to a host of continental European literary theorists and philosophers--what one critic has called the "French Foreign Legion" of thinkers. At least some of them seemed to believe reading was so hard, that true communication was so impossible, we could never understand what anyone meant by anything, and reading was all just a masturbatory journey of trying to decipher a code that could never be deciphered. I found that more than a little bleak, and probably unnecessarily bleak. Just because something is difficult does not mean it's impossible. Or perhaps more accurately, just because something cannot be done with perfect precision does not mean it can't be done with relatively more or less precision, that there aren't some readings that are closer to the truth than others. If that's not true, then the reason most people write and read--the hope to find one's most difficult-to-formulate thoughts either reflected or shared--is a stupid reason to create or read literature. The desire to connect would all be in vain, would always be in vain. 

It's tempting, then, to adopt a philosophy that takes the ability to grasp meaning in writing as a given, if nothing else in defiance of joyless and abstruse philosophers who would have us questioning why we read at all. But overly simplistic readings in the defense of meaningful human discourse is no virtue, just as insisting on the complexity of interpretation in spite of the difficulties that come with it is no vice.

Reading in good faith

What's important more than sticking to any one theory of exegesis is to be honest about the extent to which one is shifting exegetical approaches speciously in support of one's own position. For example, when Justice Alito argued in his opinion in his Dobbs opinion that we could try to partly define the meaning of "liberty" by looking at what political liberties people had in 1868, he was taking an extra-textual, or author-centric approach, however much he might have claimed to be sticking to the text of the Constitution, which chooses to leave the term vague. But when Lauren Boebert says she doesn't believe the Constitution supports a separation of church and state because that literal phrase isn't in the Constitution itself but instead in a "stinking letter," she is being a fundamentalist about sticking only to the text. As others have pointed out, Justice Kavanaugh both did and did not accept unenumerated rights in the Constitution on Dobbs. He sided with the majority in determining that since the Constitution does not mention abortion, it isn't protected, but then he speculated that travel from states where abortion is illegal to those where it's legal would be protected by a Constitutional "right to travel," which is not a right mentioned in the Constitution, either. 

You ever see someone and feel like you already know what kind of person they are, because you feel like you've met that person several times before? That's the vibe Boebert has always given off for me. 

There's nothing wrong with going back and forth between author-focused, text-focused, and even reader-focused (i.e., what does the text mean to me?) readings. There's nothing especially wrong about mixing straightforward and nuanced exegesis. The question is whether one is doing these things in good faith, because one passage seems to call for a type of reading that is different from another passage, or whether one is doing it because it's the most expedient way of proving the point you knew you wanted to prove all along. 

I suggested that we owe the author-centric reading to Christian exegesis. My friend, an expert in the classics, disputed that, but I think that Christian hermeneutics has undoubtedly had an influence on how many Americans approach their reading of other texts. Christianity's belief in a Jesus who is "the same yesterday, today, and forever" had lead to a belief that the way people understand the Bible today should be the same as how people understood it 2,000 years ago. (As though there was unanimity then!)

This isn't the only way Christian hermeneutics have influenced the way ordinary people think of the Constitution. There is a type of Christian reading of the Bible that will assume a literal reading is the obvious best approach when the Bible is saying women should be submissive to men, but then applies a great deal of nuance when the Sermon on the Mount instructs believers to turn the other cheek. I don't mean to single out Christians for irresponsible reading here, when they're certainly not the only ones who practice reading negligence, but Christian exegetical readings seem to be especially relevant to and influential in readings of the law in America. 

My goal isn't to necessarily get anyone to drop their cherished religious or political philosophies. If that were my goal, I know I'd fail at it. Cherished ideas are not typically abandoned in a day's work. My goal is humbler: to encourage everyone to question their own analytical and interpretive practices, to question whether the approach taken is determined by what the facts seem to call for or because we want the facts to line up with what we believe.

The preamble, which I ironically bring up here at the end of this post

In the case of the Constitution, I think one passage that both author-centric and text-centric readers often overlook is the preamble, which gives several reasons why the Constitution was written:

-to form a more perfect Union, 

-to establish Justice, 

-to insure domestic Tranquility,

-to provide for the common defense, 

-promote the general Welfare, and

-to secure the Blessings of Liberty to ourselves and our Posterity

When we are in a quandary about how to read something not made explicit, I think this preamble is the best heuristic available. Asking ourselves which reading helps to form the better union, better establish justice, better promote the general welfare, is the right approach. 

Of course, there are a lot of vague terms in there: union, justice, welfare, liberty, etc. Those words have an even greater sense of awe and mystery in the original because the founding fathers liked to follow a pseudo-German custom of capitalizing nouns they thought were important. It's like they knew words like union, justice, tranquility, welfare, and liberty were ideas too big for even their prodigious and curious minds to hold, so they wanted to preserve as sense of awe around them and leave it up to others to think of those ideas according to their own lights. It's the reason the list of reasons for writing the Constitution ends with the concept of "Posterity," that is, us. 

I would argue that this mention of posterity is a hint that the Constitution can be read somewhat more loosely than an orthodox Jew reads the Torah. The Constitution is something the founding fathers gave to us. Why? To form a more perfect union, establish justice, etc. If modernity generally feels that "liberty" includes the right to an abortion, the founding fathers didn't mean to keep us tied to only the freedoms they explicitly laid out. 

This is the only way toward the "new birth of freedom" that Lincoln hoped for. Lincoln himself was a rather creative reader of the Constitution. He had to be. The exigencies of the day called for reading the Constitution in a way nobody ever had before. He decided that his first responsibility was to protect the Constitution, and that if the country collapsed, it would be impossible to do that, so he took powers for himself that the Constitution didn't say he had in order to save the Constitution. 

Was he right? Probably not about everything, but he was about a lot of things. I think we, too, should seek to fit the Constitution to the reality of the day, rather than the other way around.