Legal Originalism and the Collapse of Triadic Space
The landmark 2008 supreme court case District of Columbia v
Heller dealt a severe blow to advocates of gun control. At the
heart of the argument was the following sentence in the
second amendment: “A well regulated Militia, being necessary
to the security of a free state, the right of the people to keep
and bear Arms, shall not be infringed”. The losing side argued
that this phrase “right to bear arms” referred to military uses,
as in state militias, an argument that made particular sense
given that the context of the bill of rights was an effort by the
federalists to appease individual states in order to help ratify
the constitution, and the states felt strongly about their right to
arm militias.
However Antonin Scalia, in his majority opinion, argued that
the “right to bear arms” extended well beyond the military
context that most believe the framers had in mind. He based
this conclusion on his judicial philosophy of textual originalism,
which holds that the words of the constitution must be
understood exactly as the framers meant them.
Justice David Souter asked, perhaps astonished at this
interpretation, asked: “In the 18th century, someone going out
to hunt a deer would have thought of themselves as bearing
arms? I mean, is that the way they talk?”
The philosophy of constitutional law is fascinating and complex,
and the not insignificant time I’ve put in to try to wrap my mind
around it the past few months at best elevates me to the ranks of
poser. Nobody knew constitutional law could be so complicated,
right?
At its core, the endeavor of constitutional law is a
remarkable exercise in the challenge of constructing an honest
relationship with truth. In overly broad strokes, constitutional
law is characterized by a debate between contextualism and
literalism, similar to debates found in literary criticism,
linguistics and religion.
On the liberal, contextualist side, there is the philosophy of the
“living constitution”, or “loose constructionists”. This
philosophy is partly pragmatic; as Justice Breyer argued,
constitutions are meant to endure, and so their interpretation
must be more responsive to changing circumstances than the
rather slow and clumsy amendment process. The “living
constitution” philosophy is also philosophical, in that it is based
on the idea that the framers intentionally wrote the constitution
in sweeping generalizations so that there was ample room for
interpretation. As Jefferson himself said, in an 1816 letter to
Samuel Kercheval, “(L)aws and institutions must go hand in
hand with the progress of the human mind…. opinions change
with the change of circumstances, institutions must advance
also, and keep pace with the times. We might as well require a
man to wear still the coat which fitted him when a boy, as
civilized society to remain ever under the regimen of their
barbarous ancestors.”
This idea of the constitution as a living document seems
inarguable, at least on the surface. At the same time, however,
the constitution must have some anchored quality, otherwise, as
conservative jurists argue, the constitution can mean anything
one wants.
This concern yields the more conservative, literalist doctrine of
originalism. On the more liberal side of originalism is the
doctrine of original intent, which holds that judges should
attempt to ascertain the meaning of a particular provision of a
state or federal constitution by determining how the provision
was understood at the time it was drafted and ratified. The goal
of original intent, irving Kaufman writes, “is not to venerate
dead framers but to restrain living judges from imposing their
own values”.
And then, on the conservative side of originalism, is textual
originalism, the philosophy embodied by Scalia, his follower
Kavanaugh, and other favorites of the conservative Federalist
Society. Textual originalism hold that one can discern, through
text itself, the original meaning of the words, and that one
should discard speculation about the framers motivations and
intent. In the words of Scalia himself, “I don't care if the
framers of the Constitution had some secret meaning in mind
when they adopted its words.”
The originalists solve the problem of the constitution as
responsive to changing times by deferring to the legislative
branch. As Kavanaugh writes, “the textual originalist demands
that the legislature think through myriad hypothetical scenarios
and provide for all of them explicitly rather than rely on courts
to be sensible.”
This, too, seems an inarguably thoughtful position. And when
you put the “living constitution” and the “originalist” positions
together you’d appear to have a nice working dialectic. Though
this seeming reasonableness is of course undermined by how
cumbersome and political the amendment process is.
However, judicial philosophy, and perhaps especially the textual
originalists, could have learned something from the struggles
that gave birth to contemporary psychoanalysis; when it comes
to thinking you know something objectively, lots of luck. As
Judge Easterbrook writes in, of all places, the foreword to Scalia
and Garner’s book. “Words don’t have intrinsic meanings; the
significance of an expression depends on how the interpretive
community alive at the time of the text’s adoption understood
those words. The older the text, the more distant that
interpretive community from our own.” Moreover, words don’t
have meanings independent of the subjectivity of the reader.
Want to bet that a parkland shooting survivor might have a
different interpretation of the phrase “interpret the right to bear
arms right to bear arms” than Scalia, an avid hunter and gun
owner.
This has huge implications for social issues not specifically
spelled out in the Bill of Rights. As the editorial board of the NY
Times notes: The Federalist Society claims to value the so-
called strict construction of the Constitution, but this supposedly
neutral mode of constitutional interpretation lines up
suspiciously well with Republican policy preferences — say,
gutting laws that protect voting rights, or opening the floodgates
to unlimited political spending, or undermining women’s
reproductive freedom, or destroying public-sector labor unions’
ability to stand up for the interests of workers. Judge Kaufman is
even more pointed: “I believe the concern of many modern
intentionalists is quite specific: outrage over the right-of-
privacy cases, especially Roe v. Wade, the 1973 Supreme Court
decision recognizing a woman’s right to an abortion.
In other words, the very paradigm that intends to deter bias
becomes an invitation to the very biases it is designed to deter.
Absent Lewin’s appreciation of the Gestalt, the textual
originalist falls into the same trap as the objectively knowing
psychoanalyst; without an ongoing appreciation of the mutually
influencing forces of the intersubjective field, a humility about
the impossibility of objective knowing, and a deep respect for
the ubiquity of bias, one is more likely to be affected by the
one’s own assumptions and ideologies.
The philosophy of constitutional law, it follows, can be
understood as a very complex effort to manage and construct a
dialectical, triadic structure with the constitution functioning as
a third, or perhaps more accurately, with the constitution
functioning as a subject that is essential to the creation of a
third. One can argue that optimally there exists transitional
space in between judge and document; to borrow from
Winnicott, there is no constitution without a Supreme court,
and there is no supreme court without a Constitution.
This expansion of intersubjectivity to include not only persons
but things – in this case the “thing” being the constitution –
suggest a look at the work Enrique Pichon Riviere. Pichon
Riviere coined the term “spiral movement” a process in which,
as Samuel Arbiser (2017) describes it, “(t)he subject forms a
dialectical relationship with the world and transforms things
from things-in-themselves into things-for-themselves. By way
of a continuous praxis, to the extent that he modifies himself
he modifies the world, in a continuously spiral movement.”
I want to focus on two dimensions addressed in this quote. The
first is Pichon Riviere’s description of a dialectical relationship
between subject and world in which the world, and, it follows,
the intersubjective space, is not only comprised of relationships
between subjects, but also between subjects and things, ideas,
entities. In this sense, the “world” in this dialectic is also applied
to “things”, that is things such as the constitution, as well as
science, the rule of law; to all “alternative facts”. In an idea
evocative of Green’s negative space, the subjective
acknowledgement of these world/things is essential to the
creation of a dialectical relationship, in Pichon Riviere’s terms
the spiral movement, between subject and world.
Second, Pichon Riviere, born in 1907, and one of the founders
of South American field theory, is describing, much as do all
contemporary field theorists, the way that elements of the
dialect construct one another. Returning to constitutional; law,
when intersubjectivity is operative, the jurist creates the
constitution, and the constitution creates the jurist. Admitting
huge liberal bias on my part, I believe that this optimally
creative process can be seen in Roe v Wade. While there is no
specific mention of a right to an abortion in the text, the court
ruled that the right to privacy under the Due Process Clause of
the 14th Amendment extended to a woman's decision to have
an abortion. In a mutually influencing dialectical spiral the
jurists created the document, finding in it a right not specifically
mentioned, but the document, with its emphasis on rights, also
created the decision of seven of the nine jurists.
In this entropically governed world, the dialectical space of
thirdness, which requires energy, always wants to collapse into
dualist angles of repose. If we think about constitutional law in
terms of the challenge to keep such a triadic, dialectical space
open, we can see more clearly the the many faultlines along
which thirdness, and liberal thinking, can collapse.
The constitution needs to be anchored in some quality of
imutabilability. If the constitution can mean anything, then the
constitution means nothing. But this immutability must also be
relative and even fluid, otherwise the constitution can become
oppressive and dictatorial. The textual originalist position, in
which dictionary meanings rule tyrannically, is particularly
vulnerable to this faultline. As Judge Frank Easterbrook notes:
“Words don’t have intrinsic meanings; the significance of an
expression depends on how the interpretive community alive at
the time of the text’s adoption under-stood those words.” But
it is ironic that Easterbrook’s words are found in his foreword to
Scalia’s book, because this appreciation of the fluidity of word’s
meaning is not the textualists position. The textualist
philosophy, as emobodied by Scalia’s Heller ruling, evidences a
literalist mindset that is the judicial equivalent of
fundamentalism, and it is an example of how very smart people
can be illiberal thinkers. When such literalism rules, the
constitution becomes, in Ogden’s words a subjugating third. Or
perhaps, more accurately, the third created by the relationship
between judge and document becomes a subjugating third.
On the other side of the coin as the text as a subjugating third,
the jurist can override the text with interpretation, as in Heller
and Scalia. There is a very delicate balance between the
surrender of being changed by the third, and the third being
changed by its subjects, and subjugation by the subject, or
dictatorial subjectity that overrides the nature of the third.
There is a whole lot of nuance in between “Tremendous crime
is coming across”, and Scalia’s interpretation of the right to
bear arms as applying to everyday life, but both of these
represent the subjugation of a third, in this case fact, by virtue
of agaendaed subjectivity.
To sum up, although Justice Ginsberg appears to be adapting an
originalist position as a way to counter the conservative,
originalist leanings of the current court, this court, despite its
protestations of being non ideological, is going to lean hard to
the right. In all likelihood, had the court been dominated by
textual originalists in 1973, Roe vs Wade would have gone the
other way. On the first order, this leaning is a consequence of
political forces; the federalist society, backed by right wing
money, is now the primary mover in vetting potential supreme
court judges. But on a deeper level, this conservative lean is the
structural consequence of the originalist philosophy that is
coming to dominate the court. Specific individual rights, more
recently recognized by society, are not enumerated in the
constitution, and the legislative process is too cumbersome and
conflicted to amend these absences. When the textualists
gravitate, as they do, towards literalist interpretations of the
sort that occur when triadic space has collapsed, and when the
constitution becomes, as a result, a subjugating or subjugated
third, the absence of enumerated rights becomes an invitation
for confabulating personal conservative ideology with
supposedly objective interpretation. The imposition of of a
wave of conservative rulings, whether witting or unwitting, in
inevitable. This process reflects a breakdown of critical
thinking, an illiberal outbreak of the sort that can occur among
very smart, even brilliant people, when triadic structure has
collapsed.
It’s an error familiar to us psychoanalysts!