Exposing Entrenched Power Dynamics in American Political Narratives, Part 2: Naive Originalism and the Constitution

The Tea Party and conservatives have for a long time complained about President Obama and liberals not respecting the US Constitution. The same goes for the reverse. When Conservatives are in power, Liberals then complain that Conservatives are not respecting the Constitution. In this way, it becomes fashionable for both parties to strongly disagree with each other as to whom is respecting the Constitution. Why is it such a big deal? Well for starters, the Supreme Court avoids political entanglements allegedly by holding lifetime appointments and the largest role the Supreme Court has is to review the constitutionality of various laws at all sectors of governance. In theory, an independent judiciary is great to review the fairness of the laws of the land. However, ideology and partisan politics just occupy a less than obvious implicit status when nominating a Justice to the bench, and what each Justice considers "interpretation" serves the implicit status of power politics. What is deemed "constitutional" or "unconstitutional" serves not only ideology of the partisan interest, but what they consider appropriate to the act of interpretation is instrumental to how the Court functions. 

Needless to say, I've heard the mantra from the Tea Party that we must be faithful to the Constitution. Yet, what exactly is involved in demonstrating faith. If anything, the best version, however flawed, of such an opinion comes from Justice Scalia's commitment to something he calls "originalism."

Justice Scalia defines originalism as the only way of proceeding in terms of constitutional interpretation. In originalism, the text as law is interpreted under looking to the historical authorship of the law up to including the legislative intention in which the law is authored. By looking to this historical authorship, one assumes that one can have access to the authorial intention of the law. Anything short of originalism is a picking and selecting arbitrarily at what one wants the text to mean-such people are guilty of a form of judicial activism.

If we stipulate ahead of time that judicial activism is essentially Judges reading into the law what their personal views, then any time a Judge reads his personal views into the act of interpretation it can be said that such an act is wrong when interpreting the law. If one accepts originalism as a way of proceeding, then they, too, believe prior to the act of interpretation a personal view that they read into the law as well. Their prior commitment to finding the historical situation in which the law was written violates the central principle of their criticism of judicial activism.

What is ludicrous above is the fact that it is an unrealistic assumption that interpreters can separate themselves from the body of preexisting beliefs. time and place of their current situatedness. Since the law is about interpreting the law, one stands at the horizonal moment of a text -- between past and future expectation. Interpretation is never concerned with the past in a way that the originalist assumes the past available. Instead, the interpretive act is always futural. We look to history and what has happened in the past for our practical need to engage the law in the present, that is, toward the demands of our current situation. I think an example is in order to organize our intuitions on this very matter. The following example is inspired by its analogue in Ronald Dworkin's Law's Empire.

Let us suppose that Suzy is a tenant in a building. Under state law, a "Landlord must provide suitable time for tenant eviction." Suzy is getting her car repaired, and cannot leave immediately despite her landlord's desire for her to vacate the apartment so as to rent to more reliable tenants. Suzy leaves her apartment for a second to do some grocery shopping after staying 3 days over the day the landlord wanted her to vacate the apartment. As such, the landlord uses his key and starts to move all her possessions onto the lawn in front of the building. When she returns, she finds her pieces of furniture have been rained on, and the landlord ushering his nephews to hurry with her belongings. Suzy and her landlord end up in court.

The source of the disagreements rests between the two parties on how to define a "suitable time for tenant eviction." Laws are written with general appilcability in mind, often without precision in the law's authoring. Legal interpretation is assumed to flesh out the generality of what the laws shall mean in terms of their applicability. Suzy's civil claim would be compensation for property damage, and the landlord would counter claim the right to evict a tenant after suitable time has passed, arguing 3 days is "suitable." Any look to the legislative intention might be something like general guidelines so as to curtail private quarrels between interested parties. What is one to do for the legal interpretation of the state statute?

The above is a palatable example. It drives the fact that the law is a socially argumentative practice built on the praxis of concepts, not the stasis of universal meanings solidified in the past. Legal interpretation is more like Aristotle's notion of phronesis in which one gets better at practical reasoning in moral situations the more one gets better at being/cultivating the virtues over time. For this reason, this is why Gadamer revives Aristotle on exactly this point. The act of interpretation is connected to the past in a lively and workable way through the needs of interpreter. Privileging originalism is just hiding one's conservatism in a way that stagnates judicial review and does not reflect the overall hermeneutic experience of legal interpretation. 

It is one thing to beat the drum of the untenable premises that undergird originalism, namely, that interpretation is about having epistemic access to the past in the way originalism thinks it does, but it is quite another to leave empty what a good theory of constitutional interpretation would have to answer. As such, I now turn to outline several unrelated points to the above post on what I think a good Constitutional theory of interpretation ought to have.

1) Constitutional interpretations employ normative concepts. Central to these concepts is justice, and as such a good theory must give us an answer to what justice is, and its relation to interpretation.

2) Constitutional interpretation relies on the assumption that the Constitution has legitimacy, that is, the Constitution has authority over us. This means that a good theory of interpretation must give us a story as to why we find the Constitution authoritative.

3) Conceptual analysis of interpretation needs to cut through the normative posturing; a deep philosophical story of what exactly interpretation is, and how far interpretation can go epistemically are necessary to give us a fuller story. I have alluded to what I think would be a good analysis on this end, a Gadamerian story of legal hermeneutics as found in Truth and Method.

In conclusion, I will summarize my thoughts on originalism. First, the originalist rhetorically move to say that judicial activism is nothing more than reading what you want to read into the law is absurd in that originalism is guilty of the same way it defines judicial activism for other competing acts of interpretation. Moreover, I show that what the criticism lacks is a realistic picture of how interpreters are using the past to secure applicable knowledge for their present situation. This means that interpretation is always normative, never impartial--always bound to the reconstituted historical moment of the interpreter. All interpretations points to the present, and this is the more realistic temporal relation revealing the past as never static and accessible to be known in the way originalism thinks the past available. Instead, interpretation is an act, a lively and workable engagement with the text, past and situation one finds oneself in; the analogues for this type of activity is Aristotelian phronesis by which we live morally better and better by acquiring the practice that only living morally in experience can provide. 

In essence, I oppose originalism by defending Gadamer's conception of phenomenological hermeneutics as a way of proceeding on these matters. In addition, I end by outlining several concerns as to what a good theory of constitutional interpretation would look like.

Exposing Entrenched Power Dynamics in American Political Narratives, Part 1: Evangelical Literalism

I have set myself to a certain task in philosophy. Through philosophy, it is more or less a hobby as I do not want to give it much time, but I think it cannot be helped. In following out the conception of philosophy that most bears fruit, it is one in which the philosopher is intimately connected to evaluate the structures of the lifeworld as they are currently lived, that is to philosophize about contemporary cultural forms. In so doing, it is my intention to expose dangerous political narratives in American culture that entrench unjust power dynamics and not just proceed phenomenologically. There are those that do this better than me. Butler has, for instance, written much on the performative aspects of gender and taken to task a critical interrogation of the concept with surprising results. I am no Butler.

In this entry, let me take to task Evangelical Christianity. Evangelical Christianity is particular form of Christianity that naively appropriates the Augustinian principle of having a personal relationship with God. Now, this is true of all Protestant forms of Christianity. As an institution, The Church is no longer man's correction to his sinful nature and by emphasizing that one can have a personal relationship towards God one is no longer required to relate to God institutionally through the Church. Therefore, not only does the Augustinian conception of a personal relationship with God emphasize a new orientation for the believer, it also de-legitimizes the historical and political authority of the Church. This forms the background of Evangelical Christianity, but in a more practical way.

With no mediated authority for the sacred to take place, the Christian message can come right into your home like any product of direct marketing. James Kennedy and the "Hour of Power" or Jerry Falwell can come streaming into your life through your television set, or literally streaming from the internet. They tape broadcasts and convince thousands of others of their powerful message. In this way, the personal relationship gets co-opted by their powerful charismatic personalities. Some ministers have even called themselves "Doctor" for marketing sakes only to have no PhD (Jerry Falwell took on the term "doctor" because he felt honorary degrees conveyed the privilege of doing so even outside the institution that awarded the degree).

More than that, these religious authorities relate Biblical themes straight into their own participation in culture from a naive literalism. To be fair, no religiously oriented person can avoid participation in culture. To be a communal being means we participate in our cultural setting. However, the point of this group is to abuse how such a personal relationship with God manifests in experience. Augustine's personal relationship with God did not mean being the naive source of direct Biblical literal reading. Augustine meant reading scripture in its original Greek and attending to this relationship with God with the serious mind of a scholar. It did not mean two hicks in a trailer being moralized by a Sunday preacher 453 miles away in Columbus, OH. It did not mean promoting megachurches and their mission like one supports the profit mission of Walmart to bring cheap goods to American consumers.

As a philosopher, I don't have much patience for religion. That much is clear. I have a general sense of the divine, but do not account for it metaphysically. Instead, I find extreme comfort in Kant's criticism against speculative metaphysics. That is surely not the way into religion. That's why we have faith as Kant wanted "to make room for faith", yet in the expression of our faith, if we miss the point of God as "wholly other", then we miss the point of God. For God has always been an expression of that which is radically transcendent and outside ourselves. In every worship of Him, we are humbled before that which is Other in God. This is a model for relating to Others, and we are called to be humble for God inasmuch as we OUGHT to humble ourselves before others (that which is different from ourselves). This means whenever a gay boy is bound to a tree and beaten to death, we are called to oppose such treatment of those that are different. We must embrace difference and not shy away from it. Whenever an LGBT person is ridiculed, mocked, beaten or killed, difference is not respected. Evangelicals have politically instituted their naivety and abandoned the ethical call of Christianity. They would rather hate sinners than see themselves as one and the same. But why?

The answer comes aground once more. Evangelicals believe in the inerrancy of Biblical scripture. Incapable of understanding revelation through metaphor and analogy, they conclude some very strange things. Down near Cincinnati, there is the Creation Museum. Filled with animatronic machines, music and amusement park rides, one can simulate the actual co-habitation of man with dinosaurs.

This is how messed up my country is. Though to be fair, the founder of the Creation Museum is Australian.

In such an experience, one doesn't need to critically evaluate the claim made upon us through religion. Religious texts, indeed, make claims of us. Like any art or cultural work, the texts demand to be thought and rethought. This is why the experience of scripture is anything but naive. It calls for a deep hermeneutic experience in much the same way that Gadamer describes. The depth of hermeneutic experience of the Bible is completely missed by those pictured above.

Let me dispose of one common and anticipated objection. If I make a universal claim about all Evangelical Christians, then the counterfactual existence of one Evangelical that shares in what I have claimed will falsify my account. Well, if that is what you think I have done, then you've missed the point completely. When I commit to being philosophical about cultural forms of life and practices, it is not a claim about the people of the cultural form. Instead, it is the danger of the idea, what the idea gives rise to. In this, I do not think it can be denied that the people in the documentary Jesus Camp fulfill what I have said, and the level of education necessary for that type of Christianity is very low, unreflective and naive in the fullest sense. As such, yes, there very well could be a reflective Evangelical Christian whose experience is devoid of my criticism. However, such a person is not in the spotlight and I would hope such a person would come to internally question their own tradition in the way that I have explained its overall weakness.

In conclusion, a naive literalism accompanied with a dearth of understanding Luther's retrieval of Augustine's personal relationship with God makes for a dangerous combination. It is not so much that these things are "wrong" (for whom am I to judge the accuracy of theological work as a phenomenologist) as much as they are dangerous in practice. This much is clear philosophically. Without acknowledging God as wholly other and how this relation is the basis for honoring difference, naive Christians will find reasons to hate that which is impure even with the irony that we are all sinners. In addition, their form of unreflective Christianity will unlikely disappear insofar as the Bible is treated with literalism that does not challenge the hermeneutic promise of the text itself, including understanding the very dimension of a personal relationship of God Augustine actually meant. Instead, Christianity will continually devolve into the similarity it already possesses with consumerism to the point that it will continually surface as a force to challenge thoughtful and reflective people (believers and non-believers alike). This is even more dangerous since the populism of Christianity and the populism of American politics integrate into a new narrative of America as a shining city on a hill. Once a polity gets a sense of its own destiny through the divine, it will tend towards more dangerous aims. More on this later...

Aristotle's De Anima

I won't really have much to say about philosophical issues this summer. I continue to read about Heidegger and Scheler. I continue to place them in tension with each other, but such a continued effort is now on hold. I am doing my reading for the preliminary examination in my PhD. I only take one test, and this is it. Likewise, my PhD program is historically-oriented. I read the really big books of Western philosophy and try to get a hold over what the arguments are (or a basic exposition of the view).

Right now, I am reading Aristotle's De Anima. I cannot stand it. You would think that a self-professed phenomenologist would love the discussion of consciousness, the capacities of the soul so described. Yet, the only thing that matters here is Aristotle's invention of intentionality. "The sense must be percipient of itself" (III: pt. 2, lines 17). I take little else from this book. I can't stand hearing about Aristotle solving the nature of light in one paragraph. I don't know. Perhaps, I am being too impatient and not exercising the demanding philosophical patience with this text.

I also wonder about Aristotle's definition of life. His definition of life is that it is a composite between self-nutrition and growth. A phenomenological conception of life is that it strives towards the world, and in my conception, this striving has no structure other than the production of the same type of its own kind. Unlike Nietzsche, however, I do not think this striving includes within it an exercise of domination over others indifferently that results in injury and harm. Certainly, if there is no overriding structure to this striving, then it can result in a will-to-power, but the striving might take on other forms like perhaps a will-to-love.

Truth, Perspectivism and Methodology in Philosophy

Gadamer observed in an essay on Truth in the Human Sciences that many different people can appropriate the humanities for different political purposes and there is no proper way to study the humanities in order to prevent this from occurring. Unlike the sciences, there are no clear methodologies one can point towards in the study of humanities (I say this as a wholly convinced phenomenologist). One literary interpretation of Leviticus can commit one's faith to exclusion of otherness, while a more generous reading might carry the day for openness. All we can do is maintain an openness to otherness and do so as if it were an ethical imperative.

This reflection is spawned by watching the documentary Equality U. In this documentary, LGBT Christian Activists went to 19 different Christian universities to end religiously-based discrimination. Now, some of the exchanged between these groups reached a theological impasse. Group A maintained that homosexual gay lifestyles were inherited sinful. That's just what we believe and the other Group B urged for a loving-kindness and openness. At one point, members from Group A just said "Let's just agree to disagree." The activists felt their viewpoint needed to be shared and they spent about two hours in the film justifying their activism. What made this so difficult for them is a problem that lurks in the humanities in general, not just theology. Activism can feel like the assertion of an ideology rather than an argument for the "truth" of that moral position.

In any science -- whether it is social or natural science -- there are clear methods one uses to access structures in the world. The power of the science is limited in what we can actually say about that objective world, but the point is that objectivity is a goal of the scientist. They talk about something they can all experience and even repeat within the methods used to describe the same thing. Therefore, the "truth" of the science has a point of reference. Theology, on the other hand, has no clear method to access the world and does not share the same reference. There is no objective structure one is pointing towards, even if they are referencing the same text. Interpretation mitigates this access and interpretation itself is the problem. In the humanities, that is all we can do.

The hermeneuticist in me might want to claim a reversal of priority in method. I could argue that scientists are fooled; they are as bootstrapped in the same way as the humanities. All science is just interpretation, but without texts, the scientist must interpret through a series of signs and symbols--essentially the theoretical model and the quantitative representation of the phenomenon in question. Some scientists think of the model as what is truly real and others construe the model as an instrument to make sense of reality. I don't know I can go so far in claiming science is like hermeneutics, but I do have sympathies with this view.  It's just that I don't know where to place the emphasis on openness. In science, the scientists usually have a good grasp of the limit built within the practice. If they don't, they're not really doing science. Science is about asking questions to things we don't know and designing ways to investigate our best guesses about a phenomenon.

Back to the openness... In the beginning, I said that we must maintain an openness to difference. We must be humble in our intellectual commitments lest we commit the political sin of excluding others from counting. In the 1800s, European racists concocted "phrenology" to exclude Negroes from counting in the moral community. They weren't African-American, nor even people. They were slaves and treated like cattle. People used the Bible to justify slavery. The Bible was also appropriated by Martin Luther King, Jr. as a point of wisdom to oppose Jim Crowe laws. Yet, where do we point to say who had the right theological interpretaton? We can't with any reliability. We can, however, make sure we have a constant open attitude towards openness and view our beliefs as tentative efforts to know the world. We should not be convinced with certainty about our beliefs to the point they become dogmas and exclude others from counting. This is harder said than done. Also, this is the ethical imperative of postmodernism and why postmodernists exert great effort in showing that meta-narratives of truth are dead.