Give no thought to the morrow. Sufficient unto the day is the evil thereof. We have that on the highest possible authority, but I am no more able than the vast majority of my compatriots to cease from worrying about the next day, and the next after that. A general pandemic anxiety, often vague but always disconcerting, has suffused our household and probably most households. There has been and continues to be plenty to be worried about: the virus and its medical and economic devastations, police brutality, mob brutality, violent storms, raging wild fires, an impending general election already characterized by rancor, suspicion, and (whatever the results of the voting) premonitions of outraging approximately half of our fellow citizens.
One of the gaudiest floats in the fast-moving pageant of impending dangers is dedicated to the donnybrook awaiting us in the confirmation process for a new nominee to the Supreme Court. The nomination is not yet a week old, but the first brickbats were already being hurled in the actual public announcements of Justice Ginsburg’s death on September 18. As seemliness has long since disappeared from our politics, we can hardly wonder at its absence in much of our political journalism. Be that as it may, the opposing forces have formed their ranks.
Our Supreme Court was one of the most extraordinary innovations of our Constitution. There was no very close model then in existence, and there have been surprisingly few close imitations since. Only in the first decade of the nineteenth century did the court’s principal task, judicial review, become explicit. The famous early Chief Justice, John Marshall, put it this way: “It is emphatically the province of the judicial department to say what the law is.” That dictum itself, was, of course, already an interpretation of the written document that was to be the final arbiter of the validity of all legislation proposed by Congress and confirmed by the signature of the President. That document was, and is, the Constitution. Thus I can say emphatically, using Marshall’s word, that the Supreme Court is a body of literary critics charged with adjudicating the meaning of written texts—laws proposed by the Congress—in the light of an older one, the governing Constitution of the United States. Since my whole career as a professor of literature has been devoted to the attempt to explain the meaning of old literary texts, I consider myself qualified to comment, in a general way, on the Court’s performance in that same genre. A cat may look at a king.
The unspeakable is not the same thing as the not spoken about, but not infrequently the two are close allied. The American Civil War had several contributory causes, and some historians of the war, like some of their predecessors who were participants in it, have been eager to cloud the obvious principal cause in some kind of redeeming complexity. Not so Lincoln. In his justly famous Second Inaugural, the President said this: ”One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the Southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war.” Even if “all knew” that slavery was the cause of the war, there was a preference for talking about other causes, mainly more abstract and high-minded or at least less concrete and sordid ones, such the preservation of the Union or the sovereign rights of individual states.
Talking about secondary or even factitious issues is in political circles a time-honored means of avoiding real ones that are controversial. In any political system in which continuing access to power depends upon the short-term popularity of elected representatives there is bound to be a lot of dodging and weaving. Sometimes admirable motives seem to justify the grossly politic in all politics. The framers of the Constitution were so eager to achieve a fragile political union that they thought they could get by with passing the buck about slavery. Not to do so might have doomed the national project from the start. After the Civil War politicians thought they could get by with passing the buck about unjust social arrangements that frustrated the promises of emancipation. They have been doing that more or less ever since, with results so lamentable only the blind can fail to see them.
The anticipated battle over the proposed confirmation of Judge Barrett is not unrelated to the unhappy history of avoiding unpleasant topics. I venture to suggest that, as Lincoln would put it, “all know” that “somehow” the cause of this war is abortion. But it is ever so much more comfortable to talk about other things, such as the outrageous hypocrisy of Senators McConnell and Graham, the fate of Merrick Garland, the high-handedness of Harry Reid, the borking of Robert Bork by Ted Kennedy—well, I’ll cut it off there, but we could easily continue on a bipartisan grievance tour probably going back to the British Enclosure Act of 1773 and beyond. These topics are all of great interest, and have undoubtedly contributed to the poisonous atmosphere in which the battle will be joined. But outrageous hypocrisy is nowhere mentioned in our secular Sacred Text, nor is there any suggestion that a duly elected President cannot offer a nomination three weeks or three days before the end of his statutory term.
Abortion, though a supremely contentious issue in the country, nonetheless commands a kind of strange and paradoxical consensus. Most Americans don’t much like the idea of abortion; most Americans don’t much like the idea of criminalizing abortions either. That pretty well describes my own state of ambivalence. What is for some a settled matter of constitutional right is for others an everlasting affront to conscience. One can well understand why prudential legislators have been willing to let the literary critics on the Supreme Court deal with the matter.
Any intelligent American can read the Court’s decision in the case of Roe versus Wade, which is based in an exegesis of certain phrases of the Fourteenth Amendment. The Court’s vote in 1973 was not even close, seven to two. We now know what the law is because “it is emphatically the province of the judicial department to say what the law is.” But though that same intelligent American is obligated to honor the force of the law, she is not forbidden from regarding the exegesis on which it is based as highly curious. As early as the period of classical antiquity Stoic logicians bewailed the near impossibility of meaningful written communication “because all words are ambiguous.” Yet they could only be interpreted through other words. “That is like bringing a quenched candle into an unlighted room”. The heirs of such ideas, in trendy modernized form, are today very common in university departments of literature. This is one reason why much literary criticism, which in earlier periods commanded a broad audience among general readers, has become an arcane, mandarin, and above all unconvincing enterprise uncongenial to lovers of literature. You may or may not buy the argument that Satan is the real hero of Paradise Lost quite without Milton’s realizing that fact. That was a rather mad idea floated by William Blake when Paradise Lost was not quite as old to him as the Constitution was for Justice Blackmun when he wrote the majority decision in Roe versus Wade. There is not a lot of “real life” consequence in that interpretation of Paradise Lost, which is now commonplace in Departments of English. Yet it is neither more nor less obvious than the interpretation of “unreasonable search and seizure” in the Fourteenth Amendment made by the court in 1973. That is why both parties in our duopoly have been at times quite open in insisting that the crucial issues in a presidential election are the President’s powers of nomination and the Senate’s power of confirmation. Power is often unattractive in its naked form, but eventually real issues do emerge even, or perhaps especially, when Congress doesn’t want to deal with them. But the issue here is not really a clash of high-minded moral principles— let alone the struggle of good and evil so often invoked to describe it. It is a squabble of literary critics and a contest of textual interpretation. Not that high principle plays no role. The high principle of the Republicans is that their candidate must be confirmed. The high principle of the Democrats is that that must never happen. The situation seems rather bleak, yet not quite so bad as last night’s alleged “debate.”
No comments:
Post a Comment