The week’s domestic news has been dominated by a leak of the draft of a Supreme Court decision in a legal action called “Dobbs versus Jackson Women’s Health Organization,” a case with implications for the legality of fetal abortion. The leak’s ethical breach is appalling, but in the context of a politics in which appalling is the default setting, it seems of small importance, especially as no one appears confident about the leaker’s “side” and motives. We probably already knew that whatever decision the Court renders will exacerbate serious social divisions and, indeed, invite rage. I wrote about the abortion issue once and vowed to write of it no more. So I won’t. But as an American citizen I do allow myself comments on how our government does or does nor work, and as an English professor I can say a word about John Milton.
Among a few unstated but governing assumptions of the founders of our nation was one seldom mentioned for the reason that it was taken for granted. I mean their assumption of a literate electorate. If the people were in any real sense to practice “self-government” through representative legislators they needed to be able to communicate with them in written form and to understand the written results of their deliberations. In the eighteenth century the hope of a fully literate adult citizenry was an ideal rather than an achieved reality, as it remains still today. But we have good reason to believe that a significant majority of adult Americans were literate in the 1780s, perhaps as many as ninety percent. As we know also the books used to school them and the books most likely to circulate through their homes, we have some sense of the level as well as the mere fact of literacy.
The staples of the modest home libraries of the early republic are hardly surprising, given the religious constitution of most of the English colonists. The most common single title was unsurprisingly the Authorized (“King James”) English Bible of 1611. The “authorization” had been Anglican, but the book was authoritative for virtually all Protestants. Another staple was Pilgrim’s Progress by the Baptist preacher John Bunyan, first published in 1678 and itself deeply influenced by the English language of that Bible. The evidence of reading in Milton’s Paradise Lost (first published in 1667, but much of it certainly written earlier) is more surprising, given the poem’s erudite content and classical presentation. The first of many early American editions of the poem, however, antedates the Constitution. Thus, eighteenth-century Americans found their preparatory literary nourishment in some seventeenth-century texts written in a living and changing language.
I shall assume you know at least a bit about Paradise Lost. It is the imaginative retelling, in learned language and epic form, of the story of the corruption of Adam and Eve by Satan in the Garden of Eden. The poem, though it could hardly be called unsophisticated, is based in and expounds the unquestioned beliefs of many previous centuries, that God is good and Satan is bad. It is Genesis at one artistic remove. But during the revolutionary period of the end of the eighteenth century another great English poet, William Blake, famously said this: In Paradise Lost, Milton was “of the Devil’s party without knowing it.” I should stress the final phrase: without knowing it. Not a few modern literary critics have followed him. And one does have to say that in grabbing people’s literary interest, nasty generally trumps nice. Milton’s Satan is rebellious, daring, dynamic, and ingenious. Milton’s God is, well, you could even say patriarchal. I know exactly what Blake means. He thinks that Milton must have had the same ideas about poetry that he himself has, even though Milton himself didn’t know it. What Blake offers is a brilliant hypothesis of literary criticism though, in my opinion, an errant one. It tells us what Blake consciously thought, not what Milton’s subconscious was discovered to have leaked. Blake wrote in an intellectual and spiritual milieu very different from that of Milton. Social and intellectual change are real things. And we are now considerably farther away in time from the writing of the Constitution than the Continental congressmen were from the writing of Paradise Lost.
From whence arises the crisis of the current moment? Our founding document lays out the functions of three branches of government. After explaining the principal function of our legislature—which is to legislate--and then of the executive, the Constitution turns to the third branch, the judiciary. “The judicial Power of the United States, shall be vested in one supreme Court…” Article III of the Constitution says that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority…” Note the unequivocal all in “all Cases, in Law and Equity.” Both the matters of “Roe versus Wade” and of “Dobbs versus Jackson Women’s Health Organization,” clearly being cases at law, are thus subject to the judicial power. And in order to decide the present case (Dobbs) it appears that it may be necessary to review the manner in which the older case (Roe) was settled in 1973.
Even many of the most committed legal experts supporting the substance of the decision in “Roe versus Wade” have been worried about the “fragility” of its form. While obviously controversial, it had the superficial appearance of unassailable strength. It enjoyed a big majority (seven to two) and Harry Blackmun, its author, was a Republican. But it relied for its constitutional validity not on concrete legislative enactment but on a “right to privacy” said by Blackmun and others to be implicit in the Constitution’s fourteenth amendment and important in the resolution of an earlier crucial case (Griswold), this one involving contraception. Here is the perceived point of “fragility”. The English language benefits from an extraordinary reference tool: an exhaustive dictionary “on historical principles” usually called the Oxford English Dictionary or simply the OED. It naturally has a substantial historical entry on the word privacy in its several nuanced connotations at various historical moments. It has seemed to many, including me, that the concept of privacy invoked by Blackmun did not exist in the eighteenth century. Blackmun found it the way Blake discovered Milton’s partiality for Satan, through a bold act of literary criticism.
The philological history of the word privacy is hardly a definitive argument, or much of an argument at all. There are lots of things that didn’t exist in the eighteenth century or its English lexicon that are very much a vital part of the twentieth-first century and effectively addressed in our legislative codes, like wire fraud and grand-theft-auto and everything else concerned with the huge increments in the technological, scientific, and medical knowledge of two centuries. But it is our legislators in our Congress, not our judges on their benches, who are charged with making our laws. Law-makers can make any law they want so long as it does not violate the supreme controlling law, which is the Constitution. The power of deciding the constitutionality of any law is the province of “one supreme court…” We now have a good idea of gist of their forthcoming pronouncement about “Dobbs versus Jackson Women’s Health Organization.” What happens next, apart from more bitter division?
I am not an admirer of either of the current party leaders of the Senate, both in my view narrowly political and partisan in the worst sense and largely devoid of the instinct of statesmanship. But I think that Senator Schumer’s stated intention to introduce a debate and a vote on an actual legislative proposal that would affirm the last half century’s implementation of “Roe versus Wade” in legislative terms, not those of literary criticism, is a positive step. He may be presenting the initiative as a largely symbolic and performative act, but a very great deal that happens in our Congress is performative, and at least he is being honest about it. More importantly, it is a move that returns this vexed, divisive, but absolutely urgent matter to its proper venue, the Congress of the elected representatives of the people, who are not merely authorized to deal with it but in my mind duty-bound, in the current circumstances, to do so. Despite the bold confidence of so many others, I am far from certain how the matter would go. In a democracy, there are by the very nature of things opinions that prevail and opinions that do not prevail. It is indeed a crucial requirement of democracy—one so recently questioned by some among us—that losers as well as winners accept democracy’s results. Such civil commitments are imposed upon us all—differentiating us from Milton’s Satan and his minions, openly committed to the “study of revenge, immortal hate,” and to the “resolve to wage by force or guile eternal Warr.”
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