Published on http://www.counterpunch.org
What’s globally known is that we are in check by the Coronavirus pandemic. Also globally known is that President Donald J. Trump holds nothing sacred in the office he holds or the democratic order of which it is a tripart.
This disposition is not held as sacrilegious as one would suppose for more than one reason. Trump has a number of followers who also don’t find anything sacred in a political/economic order which they’d like to see dropped on its head. There are also some who identify that order with Liberals who don’t hold Guns, God, and Personal Freedom sacred. That Liberal order can also be dropped on its head.
If we pan back a bit, we can see that we are all encompassed by an economic order that holds nothing sacred but the elevation of the Dow Jones and the S&P 500, or le ROI (“return on investment”). This lot, and they cross party lines as does wealth, can easily put up with a president who holds nothing sacred but his own will as long as he holds sacred le ROI.
We must also add to this nothing sacred litany an incalculable number who haven’t the foggiest idea what is being held sacred since the country’s founding, namely that what we have in the U.S. is a liberal democracy in which citizens are represented by a governance that it, for the most part, elects, such governance upholding a rule of law establishing the protection for individual liberty and property.
Because none of this is seen to personally resonate, and the personal is always sacred among Americans, it also can be tossed carelessly on its head. Why hold as sacred historical abstractions when someone like yourself who has the celebrity status, famous and infamous, that you admire comes forth, tosses out everything you want to toss out and thus wreaks vengeance on all the dark forces and dark people you’ve wanted to wreak such vengeance upon?
There is indeed nothing sacred in such a constituency, such a populace and so we cannot expect on a far lower level than the sacred anything supportive of a democratic order but rather a welcoming of an illiberal order, an order in which nothing is sacred but the will of one man.
If we suppose optimistically that we are given a reprieve on this fate but a portion of the electorate have time to buttress this liberal order, shore up all the holes that Trump’s presidency has exposed, we need to jettison a good deal that we do indeed hold sacred. We need desperately to pull back the powers of the executive branch but its’ the Supreme Court that stands on ludicrous notions of interpretation that have fatal consequences because those judgments override legislation approved by an equitable representation of the electorate. I refer to the House of Representatives and not the Senate, inequitable in its representation and therefore unjust as presently constituted.
The Supreme Court
The Senate Judiciary Committee’s confirmation hearings of Judge Amy Coney Barrett reveal not only what’s wrong with how she thinks she’s qualified, misconceptions that the entire Committee went along with, but also what’s wrong with what we think the Supreme Court can do and what we think the justices of that Court should be. The terms of qualification that we apply and that she has stuck to cannot be represented in the real world and the qualifications we should be seeking are not sought.
Regarding the Court itself, it stands as an Adjudicator/Emperor without clothes, falsely grounded on notions of disinterest, neutrality and objectivity, no more than a contemporary version of a Greek oracle. As such, it represents the need of an always provincial and provisional order of things to possess an unimpeachable final authority, a firm ground upon which the chaos that naturally overspills that temporal order can be defused and settled. All this is a mockery which we now have no time to indulge.
Admittedly, if Judge Barrett’s appointment would be one not endangering the pressing need to overturn oligarchy, mitigate global warming and stop the mad rush to synthetic life, the mad logic of not human but algorithm logic, we could leave the Court as its, the way the Brits tolerate their monarchy.
Such is clearly not the case with Barrett’s appointment. Six to three decisions overturning all legislative efforts to mitigate global warming would mark the end of Anthropocene saving decisions. From the very beginnings of the Supreme Court we have needed erudite justices, individuals who were not appointed because they claimed to know nothing about anything and if they did know something, it wouldn’t be anywhere in their minds when it came to making decisions. It should sound as ludicrous as it is. Confirmation hearings should be more like doctoral orals rather than trials where witnesses take the Fifth ad nauseum so we cannot judge the depth and breadth of their worldly acquaintanceship and beyond that judge both wisdom, erudition and historical grasp.
Those appointed should prove that they have an informed, critical grasp of all the issues that are rocking society at that time, the chronology of events, the history of ideas. Admitting not knowing anything about the science of climate change is not acceptable. Or admitting that it’s known but nothing can be concluded, although what should be concluded is what scientists have concluded. And again, a position has been taken but we are to believe that when a climate issue is brought before the Court, that position leaves the mind and goes off into the vacuum of outer space. A justice can then know that global warming is happening, put that knowledge out of mind and go on to overturn legislation attempting to mitigate that event. Once again, ludicrous.
We are also asked to accept that Judge Barrett knows nothing about why Trump chose her. She knows nothing about McConnell’s refusal to hold a Merrick Garland hearing, or that she does have a hearing because the power that denied Garland is now rushing to get her appointed while that power holds. She knows nothing about the injustice involved here; it’s a morally neutral situation is what we are left to assume. But it’s not; it’s an occasion for personal moral review. You don’t need a religion to see that and to make that review. Pretending to rise outside the conditions surrounding her presence before this Committee does not excuse her from making a personal moral review. This is reprehensible. Not being aware of those conditions, being ignorant of the context of her own appointment, is disqualifying for a position of final interpretation and judgment.
Rather than seeing Judge Barrett as “an eminently qualified legal super-star,” it seems clear that in claiming to position herself outside a monumental injustice she is actually within, she reveals that she believes she can judge from some Archimedean point outside the world and also outside the and knowledge and knowing of her own mind issues in the world that require a deeply knowing mind and a deep knowledge of the world we all share.
In Judge Barrett’s version of the Breyer/ Scalia divide in judicial interpretation, Justice Scalia did not diverge from the original meaning of the text of the Constitution while Breyer thought it best to push the text to a point that makes sense to the judge. She calls this Breyer approach the living Constitution approach, and it departs from original meaning. A departure from original meaning here is like departing from the original meaning of the Bible. Still, it must be admitted that there’s a lot of controversy as to what the original meaning of that document might be. We even have different religions based on so many different interpretations. Totally opposing views can quote the same line of Scripture.
In Scalia/Barrett’s view, original meaning of the Constitution is found in the context of the intentions of the Founding Fathers. The idea that an interpreter can discover such original intentions was thoroughly ripped by Wimsatt in 1954 in The Verbal Icon. In brief, what the intentional fallacy does is presume to take on the role of cultural historian or archaeo-forensic psychologist in a search for what was on the writer’s mind at the time of writing, what indeed were the intentions disclosed in words.
If we jump ahead to Derrida’s observation that words do not only not reliably reveal what intentions were, but they do not reliably, in any determinate way connect word to world. Post-structuralists entered the realm of intertextuality, a realm where a word used in this text resonates with all the previous uses in other texts. As James Joyce pointed out words have a portmanteau quality, by which he meant that they carry within them all the places they’ve been, all the connections with the world they have made, as well as all the connections one’s own mind has made with words. Words are fraught with variant connections to the world, some shared and communicative, some pathological and anti-social, formerly shared in the privacy of one’s basement, now shared on Twitter.
Words do not inhere in things nor do things bear within them words. A tree doesn’t grow into the word “tree” or does that word turn into a tree. We humans make the connection. Biblically, everything in the world walked past Adam and he gave them names, in Edenic language. Everything in the world passes before our eyes and we give them names. Thus, words, are signifiers waiting to be tied to signifieds. Words float, waiting to be anchored, rather than are as lapidary as the things themselves. Words are the representations we give the world and as time and place change, so do such representations.
Intentions are even more difficult to connect to both words and writer as they lie behind words in an even more unreachable way than words do behind world. Sometimes writers reveal that what they thought they were writing detoured from their intentions. These words as I wrote them don’t cover my intentions, or, may even trespass against them. Scholars may interpret the most significant meanings in a text to be not what the author intended but somewhere else.
There is, in the phenomenological view, always intentionality tied to human consciousness. Our consciousness is revealed in what we say about others, objects, time and ourselves. If we hold silent, as Judge Barrett has in this hearing, she discloses nothing and we cannot judge the quality of mind, the expanse of consciousness. Our consciousness is always a “consciousness of,” but deriving a description of such mind through its connections with the world is not reduced to the reading of a text. You cannot get to the consciousness of, or the intentionality of the Founding Fathers through the words of the Constitution. Supreme Court justices are not historicist psychopathologists. There is no such thing. There is no such pursuit. If we transported James Madison, Star Trek transporter style, to the present moment in the U.S. would we allow him final decision on any issue?
In short, trying to find intentionality is a fool’s game. It’s also a charlatan’s game in which you presume to know intentions which you presume determine and fix forever the meaning of words which you presume you can resurrect undefiled in your interpretation.
Judge Barrett told the Senate Judiciary Committee that “a judge must apply the law as written, not as the judge wishes it were.” Let’s consider the word “wishes” here. When we read what is written, we engage in an act of reading. “Wishing” those words to mean something is certainly the most egregious crime one could commit in the act of interpretation. What does certainly happen is that a reader responds to words, or receives words, within a context of understanding, cultural, psychological, historical. Words come out of a frame of understanding, that of an author or authors within their own context, and they are received from within either the same or another context. There may be great divergence here of time and place.
We strive for objectivity through our own subjectivity, a situation which should not lead us to believing that we can under certain circumstances un-anchor ourselves from our own mind and the surrounding world, that we can perceive and read as if we were aliens from another world, our minds severed from this world. But we hear Judge Barrett declare that she is “100 percent against political interference in judicial matters. I’m independent.” “Judges should stay out of politics.” What she told the committee was patently absurd. Her claim to be isolated from surrounding politics, that what goes on in the world has neither affected her frame of realizing or her perceptual frame would mean that she’s an empty vessel, her mind still a tabula rasa upon which the world has not left one imprint.
Words declaring independence and outsider status are refreshing in Trump’s America where truth narratives shoot out all over the place, a trillion a nano second, to which are attached the word “fake” in equal number, and the neutral, objective observations of science are thrown in the barrage with no special status. This is a returned Babel of confusion but nonetheless a condition of cultural consciousness regarding truth and reality that won’t miraculously vanish once implanted.
Judge Barrett can say she is independent, meaning of independent mind, but we already know the affiliations of her mind. Some are very strong, such as her affiliation with a charismatic movement within the Catholic Church, one my mother belonged to, a belonging that infiltrated every which way the world came to meaning for her. She could not be at the same time within those meanings and outside them. She couldn’t be independent of them, just as Judge Barrett cannot be independent of the mind that is the place, as Emily Dickinson wrote, “Where the Meanings are.”
Once again, if Judge Barrett were able to go tabula rasa, she’d be soft ware without algorithms. And of course, judges, like everyone else at this moment in history especially, cannot stay out of politics because politics is already in them. She may not have spoken to Trump about overturning this or that but if she’s in this space time zone where Trump, unfortunately, is everywhere, then Trump has space in her mind as he has in everyone’s. We need justices who are deeply and wisely inside the world we hope to change for our own survival.
To supplement, we must do justice to a surround of meanings and values that are not what they were in a prior time but what now bring words to meaning for us. That prior time is not retrievable, not by the best cultural historians or social psychologists, but rather is always inevitably filtered through the lens of the present. We cannot read here as if we were reading then. And more importantly, we should not attempt to do so because we are then negating and denying the hierarchy of values and meanings of the present and replacing them with those of the past, or, more accurately, a past we can only wish to be the past.
It is absurd to believe as Judge Barrett does that the Constitution “does not change over time, and it is not up to me to update it or infuse my own views into it.” It changes because the world changes, readers change, words become attach to a changing world, and the value of that document lies in the capacity of its words to both stabilize change and reinvigorate the document itself. If it can no longer do that, becomes in short an impediment to our bringing to a state of representation our emerging conceivabilities then the end game we are in no longer has time to nurse it along or engage in tale of the tub battles of interpretation. The Founding Fathers failed to conceive and bring to a level of representation so much that we have slowly and painfully been able to do. A female judge should be very aware of this.
Point blank, what the originalist view of textual interpretation does is stand as yet another alibi to destruct or at least slow down the movement from a white male hegemony to a heterogeneous, pluralistic, ungrounded on any privileged power order of things, what I have called elsewhere the fractal territory of mind and world.
Resting on what bigots and racists and misogynists of almost three hundred years ago put into words is not a commendable position, not one that leads to any interpretation anyone would now want to hear.
There is never an author free of context or a reader free of context. Anyone who hears only what they wish to hear should not be a judge, or be married, or be as student, or be a journalist. They can still, of course, tweet. But everyone reads from within a personal/cultural perceptual frame. There are no robotic readers that can mimic a context of reading, no algorithms that bring lexicography of text to lexicography of mind, the former always supplemented by words that themselves need supplementation and the latter — mind — irreducible to algorithms or lexicography. Mind may be modeled by a financial-digital domination, as is now ongoing, but it remains fractal, chaos ridden, uncompliant like the child we all were.
“The Sacred Deconsecrated”
What feeds the need to confine meaning to an irretrievable context? To confine words to a word/world linkage that we cannot possibly know? And if this is what the U.S. Supreme Court is dedicated to then it clearly stands as a retrogressive obstacle to our representing in our laws in a fair and equitable way the will of the people as our legislation strives to represent.
If declarations of independence of mind and outside the cultural flow cannot be taken seriously, although they are respectable blather, then how can Justice Barrett be any good as a Supreme Court justice? How can any of them be of any good? If the best we can achieve is not imprimatur tagged decisions but what Habermas calls a “communicative rationality,” a shared meaning of words, a shared understanding of what a text means now, is not this function done by the House of Representatives whose equitable representation of the way voters are distributed in the country best enables them to reason equitably toward a public justification for proposed legislation?
It’s a noisy process leading to transitory results but it’s democratic and far superior to the processes of a Supreme Court judiciary that presumes to make judgments scot free of the surrounding ferment of culture and based on their visitation to the 18th century to find what words meant then. Those justices, three now left, who make no such foolish allegiances attempt to decide in the world, as the House does. They are now three facing six, a situation to last longer than our democracy or our planet. We need to sever the decisions of the House from final review by the Supreme Court. If we “re-wild the planet” and its diversity as Attenborough hopes and free ourselves of financial-digital domination, we can revisit in that safe time and space a need for the show of determinate judgement of this court. Meanwhile, we need desperately to get around the barricade that 6 to 3 decisions regarding global warming will surely make.
Because not all nine of the justices have held to an untenable, preposterous and undemocratic view of interpretation, its authority has not thus far been undermined. This has always been not a de jure but an ad hoc authority as neither the Constitution is grounded beyond its own self-authorizing nor are the justices grounded in any pontifical infallibility. To the degree that any order of things requires a legitimizing outside authority, a supernal notary, the Supreme Court has been as useful as the Delphi and Dodona oracles were to the Greeks. The Court never had any clothes on, like the Emperor of fable, but if we were all willing to see it dressed, that authority outside the executive and legislative branches, held.
What we saw in the 2000 presidential election was naked wish enforcement on the part of the Supreme Court. Ironically, it was the paragon of Originalist interpretation, Justice Scalia, who pushed his values into the texts before him, as did Justices Thomas and O’Connor:
On the eve of the election Sandra Day O’Connor had made a public statement that a Gore victory would be a personal disaster for her. Clarence Thomas’s wife was so intimately involved in the Bush campaign that she was helping to draw up a list of Bush appointees at the same time as her husband was adjudicating on whether the same man would become the next President. Finally, Antonin Scalia’s son was working for the firm appointed by Bush to argue his case before the Supreme Court, the head of which was subsequently appointed as Solicitor-General.
Steven Foster, The Judiciary, Civil Liberties and Human Rights
Because then our high oracle priests are as subject to being subjects in the world as the rest of us, it is incumbent:
Firstly, that we eliminate all aspirants claiming to leave their own subjectivity and enter the subjectivities of 39 signatories on September 17, 1787 and so retrieve how words came to meaning at that time;
Secondly, we need to have in our 9 justices a representative sampling of all divides — ideological, socio-economic, ecological/technological, and moral/philosophical — so that various contexts of reading come to bear on what is brought before the court;
Thirdly, because words float promiscuously over time and space and are so are tied to a changing world — listen to hip hop and read tweets as examples — justices should serve no more than a fixed number of years. There is not de jure ground to lifetime tenure.
What has just been described here is the U.S. House of Representatives, a legislative body that shapes its legislation to the changing values and needs of the country.
This degree of change, this absence of an absolute and universal foundation may seem to be a recipe for chaos, but if such a body responds to changing realities and the problems that so emerge in recuperative ways, then movement beyond entrenched power becomes possible. Dangerous out breaks don’t settle in and fester.
What we face now is such entrenched financial-digital power (the financialization of globalized capitalism and the techno-algorithm transformation of life) enforced by the inequities of the Senate representation, the Electoral College and, if Judge Barrett is appointed, the Supreme Court.
Neither the Senate nor the Electoral College nor the Supreme Court offer in their own existence, by their own presence, as to why they stand as arbiters of change, gatekeepers of some foundational order that has only Humpty Dumpty credentials. What they do is offer an end run around electoral decisions, impediments to growth in humanitarian and societal awareness, and phony imprimaturs on what have been for a long time now undecidable, indeterminate decisions, and therefore not decisions at all.
Who will defend the Constitution if the Supreme Court is itself tried in any court of justice and is found guilty of fraudulent credentials, hypocritical in its objective determinations, an obstruction to the growth of laws that represent a changing society, and its members siloed in their own personal lives with the top 20% and not the bottom 80%?
Either eliminating the Supreme Court or fashioning it as described above would have little to do with mending a creaky Constitution, which has needed so much amending in what we now see as matters so dramatically visible in the present, that we should not be fearful of deep changes. This venerable document served white men who today remain in venerable positions and so venerate the document. Women had to wait until the Nineteenth Amendment in 1920, and that was a bitter fight. It took three amendments, 13th, 14th and 15th, to emancipate blacks from slavery, and then from 1870 up to Jim Crow laws which undermined that emancipation in every way possible — by Senate actions –and then up to Lee Atwater’s “dog whistling” politics and the racist violence answered by Black Lives Matter up to the moment.
Deconsecrating the Senate, the Supreme Court and the Constitution itself will take a far different national context than we have now and thus these fights will themselves become deterrents to moving quickly to mitigate global warming. Nevertheless, the situation remains in a comparable way to what the nation faced in 1820 when it was already clear that the issue of slavery had to be faced at some point if the united states was to survive. House of Representative Henry Clay managed a compromise, the Missouri Compromise, that saved the day but only postponed the inevitable.
We need to work ourselves up to the point that whatever stands in the way of saving our life on this planet and the lives of other species who are perishing because of our actions must be de-sacralized. Nothing sacred should stand in the way now of that full realization by not a divided country but a whole country ready to become an asset to worldwide efforts, efforts Donald Trump’s presidency as retarded. He is of course our most pressing obstacle but his removal in November’s election should be the end of him, although the way in which he has corrupted the executive branch needs rapid triage. The only thing we can be grateful to him for has been how clearly he has shown to us the many holes in our sacred Constitutional democracy. He ran over and through everything we traditionally hold sacred. There’s more than one lesson in that.