Scalia
Published on http://www.counterpunch.org/
In answer to that question raised by Lewis Carroll through Alice, Justice Antonin Scalia would answer with a firm, outsized “NO.”
Justice Scalia’s death has brought up his idea of “Originalism,” by which he meant that the original meaning of The Constitution is enduring and not subject to the vagaries of a changing culture. He brought us to the text and its meaning, one he located in a determinate meaning of the words of the text and in no way dependent upon what the authors meant those words to mean, that is, their intentions, or what the words might mean 229 years later. In other words, or, to supplement these words with other words, the words of The Constitution are to be understood as they were understood in 1787 and that understanding is retrievable. It becomes the instrument of all determinations to be made by the Supreme Court.
Both Originalism and textualism, as Justice Scalia constructed it, do not tie interpretation to an unchallengeable approach. What is required in retrieving an understanding contemporary with an 18th century understanding is imagination. We need to imagine the way they understood their words. And we can’t reach this imagining by means of a narrow frame of metrics. How The Constitution was meant to be understood does not, therefore, put us on a firmer footing than trying to figure out the determinate meaning of the text, of the words of The Constitution. Words do not link with world in either a fixed or a totally reliable way. Nor is what we imagine what the authors of The Constitution imagined their words to mean in their own time an unchallenged, universal imagining.
All this as preamble to say that we either believe a Supreme Court justice a neutral, objective interpreter who explicates without imagination what words mean, or a reliable transmitter via his or her own imagination of how words were understood in 1787. Any online author who has been honored by “Comments” knows that, 1. Words float free of any universally accepted universal meaning; 2. An author’s intentions do not constrain a reader’s response; 3. The ways readers imagine the world infect their understanding of what words mean. In short then, Justice Scalia had no way of uncovering the original meaning of the words of The Constitution cut loose from his own frame of understanding and imagining, both tied to the present moment.
We are all in the same boat; Justice Scalia, however, was in a position where his understanding and his imagining had far reaching influence, the most far reaching being his vote putting George W. Bush in the White House and not Al Gore. It’s difficult to imagine that Al Gore’s brain would have been as vulnerable to the warped narrative of vengeance that Cheney, Rumsfeld, Wolfowitz and others as was George W. Those ill-fated delusions continue to bear dark tragedy in the Middle East. For a brief survey of Justice Scalia’s outsize influence “on and off the bench,” see Linda Greenhouse’s New York Times Op-Ed piece, “Resetting the Post-Scalia Supreme Court.” (Feb. 18, 2016)
While there is no stating in The Declaration of Independence, the Constitution or the Bill of Rights something like “We hold these Truths to be self-evident, that the Invisible Hand of the Market. . . or “Profits to Shareholders…” The words “promote the general Welfare” are, however, in The Constitution’s Preamble. An equal right to an equal share of the GDP might be more in line with the extension and protection of equal rights for all citizens than the undermining of an equitable sharing in “the general Welfare” that results from our ruling economic Monopoly game that has promoted the welfare of the top one fifth of the citizenry. And, it is The Constitution, a binding document, and not the Declaration, which refers to “We, the People” and “No Person” which should have included women right from the start. It was, therefore, “understood” that “Person” and “People” did not refer to women because they were not imagined to be equal to men, an imagining that persevered until 1920.
From an historical perspective, it seems clear that what words mean shift in direct relationship to what imaginings rule. What words are to mean then is clearly expressed by Lewis Carroll’s Humpty Dumpty:” “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”
We have known this in our post-truth world for a long time, politicians and marketers knowing this since Cain, and so the appointment of Justice Scalia’s replacement may take a Supreme Court order to occur. Meanwhile, the Presidential Primary goes on as a war of reckless words because we are now in a barrage of words world, a democratization of everyone’s opinion, glorified as a “Comment,” an endless flow of tweets rising in anger and hate, drowning in misreading and misinterpretation.
How could Trump’s words be reckless in a surround where anonymous vitriol is the order of the day?
We are distressingly aware of the lack of civility in our discourse and so this yearning for the “better angels of our nature” itself represents a political opportunity. What becomes a premium is a display of empathetic understanding and openness of mind at a time when hostile divisiveness rules.
Conservatives need a front of compassion and enlightened self-interest to mask the foundational Dark Arts of financialized capitalism while Liberals need to display a willingness to lean into the private sector and join in on the “Big Government” bashing. George W. Bush hid the growing rapaciousness of Wall Street behind an image of “a guy you’d have a beer with.” He seemed like a regular guy not too interested in politics, a guy whose mocking of wonks like Al Gore made him appealing.
Trump’s appeal kicks all that up several notches. He hates politics, like a regular guy, and mocks and abuses his Primary competitors. With Trump, we are way beyond the need for any “better angels of ourselves” masking. He remains then a frightening departure from the Conservative effort to show a soft side, a humanistic, caring, beneficent demeanor. While Trump apparently feels he can find enough angry, defiant and belligerent voters to win the presidency without engaging in a “soft power” that others, not his followers, would find attractive, that view is not shared by establishment Conservatives. They have spend too many years building a façade of “soft power” appeal to abandon it and risk exposing a naked greed and chance riddled Market Rule.
The Conservative imaginary and the way of understanding it fosters is now threatened by an imaginary of revolt and demolition transfixed on the recklessness of one man’s ego, Donald Trump.
Bernie Sanders is also playing for a win without “soft power,” in this case a leaning into the private sector and a willingness to continue the Liberal “triage” of capitalist destruction that Hillary, for the sake of a pragmatic realism, offers.
Thus, while Trump is the iconoclast disdaining the need for a “warm nationalism” cover-up operation on behalf of a resident plutocracy, Sanders is the iconoclast disdaining the need to modulate his uprising against that plutocracy in ways that do not alarm Liberals alarmed by the word “socialism.”
Hillary is scrambling to find an alibi discourse to cover up affiliation with plutocrats earning her ten million in speaking fees in both 2013 and 2014. Interned in a Third Way approach in which pragmatic compromise is called for, Hillary finds herself needing words of anger and revolt, words already owned by Bernie Sanders, and not the same old same old words of compromise and concession made to serve in a practical way “the reality of the situation.”
Bernie, however, owns the battle over what that reality may be by enthusiastically imagining it for us as a reality that is a nightmare for all but those at the top. The cover up on the Liberal side has up until now been a triage approach which Sanders disowns.
Because Liberal’s are more attached to “promoting the general Welfare” through legislative action than increasing profits to shareholders through the zero sum game of a Wild West capitalism, they have less need for a veneer of righteous bullshit than do the Neoliberals. Their need is restricted to covering up their acquiescence to a game in which Liberals leaders have benefitted alongside Neoliberal leaders. Their need is to cover up their hypocrisy. Hillary, for example, can only be disingenuously advocating a dismantling of the financial institutions that have made her a multi-millionaire. But the true mastery of duplicitous cover-up is achieved by Neoliberals simply because there is a real need to distract the audience from the Wizard behind the screen who is driving an egalitarian democracy toward a new feudal order.
In a recent op-ed piece, “The Roosevelt Approach,” (The New York Times, Feb. 16, 2016) David Brooks displays both the malleability and therefore unreliability of the word-world connection. He displays a rhetorical mastery in shaping words and meaning within an imaginary he seeks to empower.
This is an essay that can both be understood within that imaginary and outside it as if one were searching for an unraveling thread. This unraveling thread must be present if these words are fabricating a representation of reality and not directly mirroring that reality.
If this op-ed piece were The Constitution and we were reading it two hundred years hence neither today’s understanding or imagining would be packaged conveniently in the text. Fortunately, all of this is available to a present day reader who shares both imagining and understanding. We are at the same moment in the Presidential campaign as Brooks. We can trace the strategies keyed to a chosen imagining and understanding.
Brooks’ mission in all his op-ed pieces has been to convey an Enlightened, humanistic, compassionate Conservatism in the face of real boots on the ground countering events, from the privatizing and profiteering of purposeless wars to financialized capitalism run amok as portrayed in the film, The Big Short, 2015.
It would seem that only a repetition of the fact that the richest 10 percent of Americans control 75 percent of the wealth, leaving only 25 percent to the other 90 percent of Americans would be enough to put our economic system under serious interrogation, at the very least, and a revolutionary upending as Bernie Sanders advocates. If our Constitutional goal was to return to medieval feudalism, this economic inequality, which can only lead to such, would be expected. That is, however, not our Constitution.
The reality of plutocracy is not the reality Brooks imagines. It is Bernie Sanders who fails to see “reality.” Sanders “is uninhibited by the constraints of reality,” a reality apparently in which gross economic inequities undermining political equality is not reality at all. Bernie Sanders is engaging in “magical thinking,” the kind of thinking that refuses to see that the Emperor of Enlightened Conservatism is fully clothed in “warmth, confidence and optimism” which would guide our Primary candidates toward a “rebinding [of] the civic fabric of this nation.”
Brooks exhorts his readers to “emphasize a warm nationalism — a basic confidence that America is not going down in decline. . . that confidence is a better guide than anger or fear.” Although he does not exhort his readers to “vote Conservative” or look to the Conservative ideology, they should appreciate a “warm nationalism” instead of “anger or fear.” He makes no attempt to connect all this warm humanity to a “Greed is Good” ethos. His job is to sugar coat that ethos, mellow it, wrap it in warm colors, and tag Bernie Sanders as into magic not reality while establishing an imaginary of “warm” Wall Street. We need to look for “leaders who radiate sunny confidence, joy and neighborliness.”
I don’t know if it’s gall or brass or cheek to totally ignore the UNneighborliness of an increasingly narcissistic/solipsistic society who distrust and fear their neighbors, whose compassion and empathy levels are just what you see on Twitter and other “social” networks.
The Primary candidates are not a nasty lot alone; they arise from a society too long subjected to the “war of all against all” sponsored by Market Rule. Trump and Cruz have quite naturally come into being the way pus follows an untreated wound.
We are not, Brooks beseeches us, to put the blame for the anger and hate of this Primary season on Wall Street or immigrants but put it on “natural disaster caused by structural forces — globalization, technological change, the dissolution of the family, racism.”
It seems to me that these “structural forces” probably come out of the “Invisible Hand of the Market” and are therefore byproducts of the stochastic fluctuations of that Hand.
Globalization could have meant more than products and labor becoming as free floating as capital.
Technological change could have meant more than a means to track all three as well as seduce and distract the growing number of Losers throughout the world.
And is there a faster way of dissolving a family than both fathers and mothers working around the clock for wages that cannot keep a family afloat? It does not matter what marriage means or whether a single mom or two gays can properly child rear. What matters is whether there is sufficient means to create the quality of family life, whatever the membership, that more Americans enjoyed before Reagan than after.
And one can only sputter at Brooks listing the “natural force” of racism at a time when the party representing the ideology that Brooks is a shill to has been doing everything to President Obama but treat him “white”, not just as a President but as a man, white as the only right clearly hanging on in our browning society in its privileged place. His presidency should make us all proud but too many are sadly far from this imagining and understanding.
We do not imagine the world the way the authors of The Constitution did so we cannot fix an understanding of either that world or that text. But we are in the whirlwind of a far different imagining and understanding right now. Unraveling a text like Brooks’, a mere example, is something we can do.
