On Tuesday -- as the republic awaited the formal launch of the latest Supreme Court nomination death-match -- Stanley Fish appeared in The New York Times with a short article titled "Intentional
Neglect." Its thesis is sharp, bold, and deceptively straightforward.
As we enter the inescapable squall of debate over who shall take the place of Sandra Day O'Connor, announces Fish, we need to be clear on some basic things. Interpreting the Constitution is a matter of determining its authors' intent. Talk of "a living constitution" that must remain open to the changing times -- that, in short, is not interpretation, but a roundabout means of rewriting the Constitution.
The response in some quarters has involved gestures of shock -- and from one or two conservatives, anyway, of gratified astonishment. How sensible the man is! What a voice for sweet reason! Is this Stanley Fish not the same man who turned the English department at Duke into a training camp for left-wing theoretical guerillas? Has he perhaps had a change of heart?
Fish is widely recognized, even outside academe, as a celebrity and a power broker. He is the one person at the annual convention of the Modern Language Association who does not wear a name tag. And he has a well-established profile as the champion of the anti-foundationalism that non-academic civilians understand to be the, well, foundation of contemporary academic radicalism.
So when he goes on "The O'Reilly Show" -- or weighs in with an op-ed in the Times -- many people naturally assume that Fish is speaking as some kind of leftist. Hence the surprise at his latest article,
which at least some readers might take as an application to join the Federalist Society.
All of which underscores the difference between being well-known and being well-understood.
There is nothing in Tuesday's op-ed that Fish hasn't argued many times over the years. Many, many times, over many, many years. (Whatever debate may exist over his other virtues, the man is a stickler for consistency.) But he is so famous that his ideas have long since been dwarfed by his reputation.
His current stress on the framers' intent as the necessary focus of interpreting the Constitution sound paradoxical, coming from a literary theorist who came into prominence, in the 1970s, as the most dogged champion of reader-response criticism. Actually, there is a pretty direct line of march from one position to the next.
One modest claim in favor of the reader-response school might be that its very name was a case of truth in advertising. (I speak of it in the past tense because it's been some while since the movement was at its peak. No doubt there are still a few partisans still fighting for the cause, like those stray Japanese soldiers from World War Two who used to turn up on islands in the Pacific.) Reader-response analysis involved looking at how the audience of a literary work interacted with it -- how, in a sense, the
meaning of a text was produced at the moment the reader was consuming it.
That sounds like a recipe for, well, just making stuff up. Mix one part epistemological relativism and one part narcissism, and you get the sophomore's hermeneutic: "That's what the book means to me." Add a dash of paranoia, and you get: "I think Shakespeare was a Freemason, and my reading is as good as any other."
But you can't judge a method by its most inane or implausible applications. In the case of Fish's version of reader-response analysis, there was a sort of hermeneutic shock-absorber built right in. He called it "the interpretive community." An individual reader might come up with some bizarre personal meaning for a work. For the most part, however, reading is conditioned by one's membership in groups, and those groups tend to create something like a consensus about what counts as the range of sound understanding. There are rules for what counts as good evidence, or a well-made argument.
Normally those rules aren't written down someplace. They exist at the level of tacit knowledge; you either absorb them and read accordingly, or you aren't really part of that particular community. And the rules can change over time. A work's meaning isn't fixed for all time, like a face sculpted in marble. Nor does it change at random, like a kaleidoscope image. It's more like the various productions of a play -- varying over time depending on who's directing, who's acting, and how big the stage is.
Fish's later writings on law and on current issues are, in effect, an expansion of the idea of the interpretive community to the world beyond the printed page. We participate in institutions and in civic life in the same sense that we read and understand a work of literature -- as people who always find ourselves embedded in a structure of rules, assumptions, traditions, etc., that implicitly govern what counts as acceptable.
From Fish's perspective, it is the mistake of a certain kind of fundamentalism (religious or secular) to think that we can get to the level of bedrock truths that aren't so conditioned. Or to think that, by reasoning, we can ascend to lofty heights of abstraction, far above all the diverse and squabbling micro-communities. You never get outside of some kind of interpretive community, following rules that are socially constructed.
But that doesn't mean they are imaginary -- that anything goes.
Fish's often uses the game of baseball as his example of something that is both socially constructed and real. Does a baseball or bat exist in nature? Does "three strikes and you're out" follow from any law known to the sciences? The answer, in each case, is "no." Are baseballs and bats real? Does the three-strikes rule have predictable effects on the course of the game? Likewise, the answer is "yes." So the game of baseball is both socially constructed and real. It is the product of human activity, but not
subject to anybody's whim. (The umpire's eyesight, yes. But that doesn't gainsay Fish's basic point.)
Now, talk of social construction always sounds like it might have a radical agenda. To anyone who thinks in terms of natural law, it reeks of Jacobinism. After all, if something is socially constructed, that means that it might be re-constructed, right? And that means it probably should be, at some point.... The next thing you know, there are guillotines.
But actually, if you look at them closely, Fish's ideas seem a bit closer to the counter-Enlightenment doctrines that emerged following the French revolution. The binding force of community, the subordination of reason to the implicit code of tradition, the sense that our freedom is limited (or at
least conditioned) by rules that can't be redrawn all at once ... this sounds a little bit like something from Edmund Burke, or at least from Russell Kirk's The Conservative Mind.
Not to go overboard with this. When he gives voice to political opinions (in favor of affirmative action, say, or in defense of speech codes) he tends to sound like a garden-variety liberal. But Fish has been very skeptical of the academic left, on the grounds that radical professors tend to blur the distinction between scholarship and political activity. As he argued in Professional Correctness, published 10 years ago by Harvard University Press, "queering Shakespeare" isn't political in the same sense as mobilizing to increase AIDS funding; rather, it's a matter of making certain moves in the interpretive community that is
interested in Elizabethan literature.
In Fish's own words: "There are no regular routes by which the accomplishments of academics in general and literary academics in particular can be transformed into the currency of politics." And the effort to bring his ideas to bear on legal theory, over the years, have not really disproved that point.
In effect, Fish's writings have been a way of minimizing the possible interaction between law and literature. He has argued -- with exhausting, even wearying consistency -- that the conduct of legal affairs is ultimately a matter of the legal interpretive community following its own codes, traditions, and methods.
A case in point is Fish's seemingly straightforward claim that "interpreting the Constitution" means "trying to figure out what the framers had in mind." That sounds like a directive -- as if Fish is saying that we'd just need to find the right quotation from The Federalist Paper, perhaps, to understand how to apply the Constitution to legislation regarding stem-cell research. And there is, then, a strong tendency to assume that such an interpretation would then tilt toward the conservative side.
But not so fast. As Fish noted in a discussion of the Bork nomination, it is a mistake to cede "original intent" arguments to the right, just because some conservative jurists frame their arguments in those terms.
"It is perfectly possible," wrote Fish, "to be in favor of abortion rights and also to label oneself as an originalist, as someone who hews to the intention of the framers. It would just be a matter of characterizing those intentions so that the right to abortion would seem obviously to follow from them.
One might, for example, argue (as many have) that even though the Fourteenth Amendment nowhere mentions abortion rights, a correct understanding of its authors' more general intention requires that such rights be protected." Likewise, one could argue against abortion rights on grounds that aren't anchored in claims about original intent.
"In short, there is no necessary relationship between declaring oneself an originalist and coming out on one side or the other of a particular issue."
Putting it another way, the effort to define "original intent" is both a basic part of the work of the legal
interpretive community and a product of rules specific to that community. Some sharp-eyed person may well put my head on a platter for saying this, but what the hell: It sure looks as if Stanley Fish has
reinvented legal positivism by way of a kind of roll-with-the-punches pragmatism.
Speaking of punches ... they should start flying any minute now. What does Fish have to say about the debates that are about to ensue? How should the issues of the nomination fight be understood by those of us who are mere citizens of the Republic, rather than members of the legal interpretive community? His advice, in short, is to recognize that it's not a question of whether or not the nominee is an originalist, but rather, of what kind.
"So," as he put it on Tuesday, " if you want to know how someone is likely to act on the bench, you will have to set all the labels aside and pay attention to the nominee's reasoning in response to the posing of
hypothetical situations.... Does he or she construe intention narrowly and limit it to possibilities the framers could have foreseen, or is intention considered more broadly and extended to the positions the framers would likely have taken if they knew then what we know now? ... And then, if after having made that calculation you decide you are for this person, you can hope that the performance you see today predicts the performances of years to come. But don't bet on it."
There may be a certain amount of insight in Fish's thoughts. Still, it seems like the kind of wisdom that doesn't really do anybody much good.