Supremely Decisive

 

I have mentioned in the past my admiration for the late Robert Goheen (1919-2008), former president of my institution who, when I was more than fifty years younger gave me a memorable piece of much-needed advice.  He suggested that on validly contested issues I should never be certain that my own opinion was more than eighty percent right.  That is because very few complicated issues are subject to the definitive resolution of a simple problem of addition or subtraction.  Two plus two does equal four.  I am a hundred percent certain of that, though necessarily prepared to face the possibility that there is some arcane branch of mathematical speculation prepared to quibble even there.

 

But our current cultural landscape is full of hundred-percenters, whose hundred- percentism extends to topics that many citizens regard as licitly debatable, such as the constitutional basis of abortion upon demand or the legality of race-based college admissions.  Obviously, I do not pick these topics at random.  Both have been very much in the news recently in the context of Supreme Court decisions.  The Court did not have a hundred-percent decision on these matters; they had a sixty-six percent decision —clearly suggesting, in my possibly naive view, substantial disagreement on matters that I regard as substantially contestable.  But that has not been the opinion of the chief source of information in this household, namely the New York Times.

 

Just at the moment it is a little difficult to feel sorry for the justices on our land’s highest court, affectionately known in the popular press as the Supremes, but my fellow feeling makes me sympathize with them in spite of it all.  In this instance what “it all” refers to is the recently revealed news that at least some of them have discreetly been enjoying the largesse of very rich guys with whom they have been hanging out.  There is probably nothing illegal here.  The Supremes’ job is to know what legality and illegality are as established in all those leather-bound volumes in the background of the photographs of famous lawyers.  But their duty also includes the recognition and avoidance of even the appearance of impropriety.  This is another matter since common sense differs from Blackstone’s commentaries.  If their virtue cannot be as manifest as that of Caesar’s wife, they ought at least aspire to the level of, say, second cousin once removed.  Still, honesty demands the recognition that criticism of freeloading on private jet travel seems a transparent front for an objection to a particular judicial philosophy as expressed in certain of their decisions.  So I shall try to address that matter, sort of.

 

My natural sympathy for the Supremes—any and all of them—is rooted in vocational fraternity.  The justices are the only major players in our government who, like me, are paid literary critics.  There are some differences.  They are paid more, and their remit is a single piece of aging English prose rather than an indeterminate but vast number of pieces in poetry and prose in many languages.  The Supremes’ remit—the Constitution, of course—is of very great, indeed existential importance to the practical daily lives of all Americans.  Much as I love literature, I cannot make that claim about the texts I study.

Political commentators usually divide the court into two groups: the Conservatives (currently in a majority of six) and the Liberals (currently a minority of three).  What the Conservatives are conservative about is language.  They seek to understand what the Constitution’s words meant at the end of the eighteenth century.  For this reason, they are said to be originalists.  The Liberals, sometimes said to believe in a “living Constitution,” seek to interpret the Constitution in terms of today’s cultural realities.  The difference between the two groups often enough manifests itself in historical linguistics.  A good example, perhaps, is this: What are the arms of the unabridgeable “right to bear arms” of the Second Amendment?  Do they include the AK-47 and the M60 machine gun, weapons which nobody in Constitution Hall had ever seen or probably even dreamed of?  In very crude terms this parallels  the division among literary scholars who try to understand old texts on the basis of the linguistic and cultural contexts in which they were written (historical critics) and those disposed to discussing them in terms of more modern critical theories such as deconstructionism, gender theory, race theory, etc.  I am of the former group.  I endorse, that is, the opinion of the neo-classicist Alexander Pope who says: A perfect judge will read each word of wit/ with the same spirit that its author writ.  And I illustrate the method by explaining that for Pope the word wit means “good writing” or “creative  writing”—by no means necessarily humorous writing.  Pope is being classical by “wittily” rephrasing the ancient Roman poet Horace.  Now my own approach to medieval literature is definitely “historical” or originalist; but it is by no means the only or even the majority approach.  In fact my approach has got me into a lot of trouble.  But it is not life-threatening because very few people give a hoot about medieval literature and regard anyone who studies it from any perspective as too weird to worry about.  But the issue is not irrelevant to the classroom.

In the prologue to the Canterbury Tales, Chaucer gives memorable thumb-nail descriptions of the participants in his pilgrimage, beginning with the Knight.  I used to advise my students to pay particular attention to what the poet tells us his pilgrims loved, as that features in many descriptions.  The knight loves five things: he loved chivalrie, trouthe and honour, fredom and curteisie.  Those nouns are in Middle English, but they have obvious modern English versions.  The trouble is that none of the Middle English words means the same thing as its modern English version, though truth and honor come pretty close.  The word fredom in Chaucer’s language obviously has some connection with the political sense of Latin liber; but the sense here must be translated in our English as liberality or generosity.  One of the first brilliant undergraduate papers I encountered in the Chaucer course at Princeton was entitled:  A knight ther was: a fourteenth century freedom fighter.  The paper was well written, well structured and engaging.  It was also pretty well researched, to a point.  I had to give it a high grade.  The only problem was that it was completely bonkers.  Modern English freedom has lost the very different Middle English meaning certainly being used by Chaucer: generosity, nobility of character.  Chaucer’s knight is an “ideal figure” to be sure, but his military profile is much more that of Yevgeny Prigozhin than of Che Guevara.  The Hundred Years’ War was mainly fought on the English side by mercenary “companies”, such as the White Company of Conan Doyle’s terrific novel of that title.  Chaucer’s Knight is also (anachronistically) a crusader.  The model that this student had in mind was the Palestinian “freedom fighter” encouraged by the first category of eternal Arab enmity towards Israel stated in the Khartoum Resolution of 1967.

 

What most interests me about medieval chivalry is how very different it was from modern military theory.  The knight and his tale are simply much richer and more interesting in their own linguistic terms.  But I should not think that the “Knight’s Tale” is supplying a model of twenty-first century life—which is, however, what a number of very old documents claim to do.

 

I am by no means entirely opposed to maintaining some archaisms in our old documents, especially the sacred ones.  I was sorry to see “the quick and the dead” replaced in the Creed by “the living and the dead”, but apparently some folks were thinking that the original was referring to the two kinds of pedestrians on a Zebra cross walk.  And if a usage has become truly confusing even to educated people, it needs updating.  (So I agree that they needed to do something about “Suffer little children, and forbid them not, to come unto me: for of such is the kingdom of heaven: (Mat. 19:14). 

 

How a secular and utilitarian guidebook like the American Constitution has become a sacred text is a mystery to me.  The Founders very sensibly provided a means of changing it, and one of the first things done (tacking on the Bill of Rights) is in practical political terms as important as anything else in the original document.  Many of the Founders simply assumed that there would be fairly frequent constitutional conventions for purposes of paring, revising, and updating.  But it has become in certain minds the profane equivalent of the sacred King James Bible.  If it was good enough for Jesus, it is good enough for me.  Keep the Government’s meddling hands off of my Medicare!  Our great country once celebrated its formidable strength in a unity drawn from diversity (e pluribus unum).  And our great national powers of innovation were applied to the state itself: the state that in Lincoln’s noble words was so innovative in its conception and dedication as to call into question its very viability, an audacity requiring a massive blood sacrifice to endure.  His words and his ideas are as close to immortal as the words of mortals can be.  But the quill pen with which he wrote them down on the back of the famous envelope and the steam engine that propelled him to Gettysburg as he did so are now museum pieces.  Many of the great works of literature in the English language—and I would include our Constitution within the legal branch of that literature—are difficult for us to understand.  That is why we have learned editions with numerous and sometimes lengthy explanatory notes, and a Classics Comics version of The Scarlet Letter.  I could direct you to several eminent English professors who will tell you that John Milton, a seventeenth-century English Puritan, wrote a biblical epic in which God Almighty is the villain and Satan the hero.  That is about as likely as that apes with Apple computers wrote the works of so-called Shakespeare, who was really Bacon (or at least ate bacon); but they have not been banned from Twitter for “disinformation,” whatever that is.  The opinion has no practical effect on your life.  The opinions of the Supremes do.  If there really is a national democratic consensus concerning a constitutional right to abortion on demand, we could either say what it is in clear contemporary English, or say nothing at all.  That is why I see promise in the state constitutional ballot arrangement now moving forward in Ohio.  It could render a democratic opinion, the substance of which  I cannot predict.   But I can pretty safely predict it would not violate Goheen’s eighty percent rule.  To depend upon the mind-boggling originality of the anti-originalist discovery that there is a hidden “right to privacy” in the interstices of several other parts of the Constitution we already have can hardly be wholly satisfying to any honest native speaker. 

                                                          a knyght ther was

 

Supremes in Dubious Battle

 

 

            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.”

 

 

 

 

 

 

S

Courting Disaster

 

 

            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.”