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.
