Humpty Dumpty And Plato
The great ornament of ACB’s judicial philosophy, by which conservatives are dazzled and progressives perturbed, is her adherence to and reverence of the idea of Originalism.
Through her hearing, we’ve been treated to a fine education on the term. Originalism, once an archaic and learned word, has become, seemingly overnight, one by which ordinary discussion is enlivened and lay thought provoked. It finds itself roused from the comfort of law school bookshelves, upon which, with few interruptions, it’s peacefully slept, to where it now stands, center stage, beneath the incandescent heat of a tense national debate.
Among most makers of opinion, and some drafters of law, Originalism is not a well-loved idea. A long-abused term, mostly owing to its association with the late, honorable Antonin Scalia, it’s one with which the equally unutterable “Textualism” has become synonymous (though, doubtless, tweed-clad legal scholars would enjoy nothing better than to leap at the opportunity to correct me on the differences between the two). It can be said with confidence, however, that both stymie the momentum of progress, activism, and “liberal” reform by tossing in their way a bothersome road-block. That impediment is none other than the original meaning of the Constitution and the literal text of the law.
It was, at least until recently, a term with which few Americans, and perhaps fewer Senators, were intimately acquainted, and it’s for this reason ACB was asked to provide the uninitiated with its brief definition. In her response, the aspiring justice said that it’s her devotion to Originalism that leads her to interpret the “Constitution as a law” and to interpret “its text as text” and to understand it to have “the meaning that it had at the time people ratified it.” For the benefit of our shared elucidation, she continued on by saying that the “meaning (of the text) doesn’t change over time” and, with a flourish of humility unfamiliar to the character of the court, “it’s not up to me to update it or infuse my own policy views into it”.
If her definition was wanting in that type of Scalian oratorical excellence, of which one might’ve hoped she’d become the silver-tongued inheritor, it provided a concise and easily-understood explanation that none could fail to grasp.
In a word, laws must be interpreted not by the rash exigencies of the moment, nor the predilections of a maddened crowd unencumbered by thought, but by the strength of their original meaning, stolid and resolute then as now. This creates a wall through which neither caprice nor passion can penetrate, upon which a lasting society can be built. Along that vein, text must be treated as weighty, inviolable, and real. Words, when inscribed, weren’t done so to be the empty mutterings of a forgotten time. It was no one’s plan for them to be abused by the ephemeral storms of fancy, nor was it their intention for them to be neglected just because they were old.
They were meant, rather, to carry with them, into the future and beyond, their literal meaning and their objective tone, to which all might pay attention, by which our nation’s legal structure might be preserved.
Astonishingly, in the course of ACB’s confirmation hearing, the exact opposite of this ideology showed its face. And while it’s rare for so stark a contrast to arise, and for so explicit a dichotomy to be drawn between two conflicting points of view, this one jumped to the fore and stole the attention of all. It sallied forth to divert the efforts of a Supreme Court confirmation process to which, in degree of its seriousness, no other public event this year (a year at whose beginning, mind you, the president was impeached) seems to compare.
The ideology of which I speak goes by the name of “linguistic positivism”, two words that read, admittedly, as vainly pretentious and laughably hoary. In some ways, they are, but they mustn’t be thought too old, too turgid, nor too silly to be taken seriously. As if dynamite, they’re two words packed with danger, by which all vestiges of communication, and all remnants of human relations, might be blown to bits.
Linguistic positivism is best understood when viewed in relief to those ideologies over which your gaze just passed. Once again, the presupposition of both “Originalism” and “Textualism” is that terms, once defined, aren’t amenable to the vagaries of constant and coerced change. They aren’t to be purchased and sold in the dirty marketplace of the day, changing meanings as they change hands. They are, in a sense, immutable and holy, even if the language in which they were originally written undergoes a natural evolution, or is reshaped in an organic way.
Linguistic positivism rejects the objectivity of words. It thinks nothing of their veracity, their holiness, their sanctity, and the precious truth they convey. Rather, it presumes that there is no greater truth, and no objective reality in which a word partakes. There is no higher ideal, no Platonic form of which it might be reflective. Nor, for that matter, is there a lofty standard that it reaches and comes back to communicate. Words no longer serve in the role of useful symbols, faithful signs by which the realm of the invisible might be brought down to the Earth.
They are, once stripped of all objectivity and meaning, vocalizations of power. They are this and nothing more—power. They’re objects of manipulation by the capable, articulate, and the strong, and they impose their unanchored, ad hoc meaning on the defenseless and weak.
This philosophy is best expressed not by Leftist American politicians, by whom it’s quietly embraced as an unacknowledged friend, but by a figment of a British novelist’s imagination. In his phantasmagoric Through the Looking Glass Lewis Carroll has his Humpty Dumpty say the following:
“When I use a word”, Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean—neither more nor less”.
“The question is”, said Alice, “whether you can make words mean so many different things”.
“The question is”, said Humpty Dumpty, “which is to master—that’s all”.
He who associates the lovable Humpty Dumpty of his nursery rhymes with the madman Friedrich Nietzsche of his university curriculum, is either a deviant child or a subtle scholar. In this case, he might be both. Carroll’s Humpty Dumpty, perhaps better than any character yet drawn, expressed in those lines perfect linguistic positivism, and capped them off with a declaration of a startlingly honest Germanic “will to power”. Really, that’s all linguistic positivism is: the manipulation of speech in the effort to consolidate power. It’s an attempt to tyrannize communication and to gain supremacy over the field of though. It’s Nietzsche’s maxim applied to words, and an incredible danger to the society of man.
With their unexpected amendment to the word “preference” (when used, apparently disparagingly, in speaking of the orientation of one’s sexual aims), the Democrat Senators by whom ACB was questioned attempted to do just that: heighten and secure their power by changing the language in real-time. They sought, by so doing, to claim themselves the clear victors of the field. This maneuver, it should be noted, isn’t without precedence: they and their ilk did exactly the same thing to such varied terms as “court-packing”, “racism”, and “fascism” before it. In at least two of three cases, they enjoyed no small degree of success.
Yet they might not be so successful again. No sooner did ACB conclude her compelling definition and defense of Originalism than the Democrats responded with their limp promotion of Positivism. For the audience watching, it was a rare opportunity to learn the philosophy of the former, and to see an example of the latter. An approving sentiment, so far as I could tell, resided with the first, while the second was left searching for supporters. That, in a nutshell, might be the problem with so radically subjective an ideal; while it might at first inflame individuals, it rarely convinces a crowd to move. The trouble is, unlike the lot of us who have different but reconcilable ideas, these two terms cannot coexist. One must choose between them: Originalism, as expressed by ACB, or Positivism, as offered by the egg-headed Left. My preference, for what it’s worth, rests with objectivity, Plato, and the sanctity of words. Perhaps you choose as your philosopher and guiding light the tottering and broken Humpty Dumpty?