Professor Vladeck, in analyzing the Court’s recent (and not final) holding in Trump v Wilcox sets up the analysis with this observation:
Justice Scalia once wrote that “It is in fact comforting to witness the reality that he who lives by the ipse dixit dies by the ipse dixit.”
Now, I find far too often that people rely on the psychological term “projection,” which they think they know what it means. Like “word salad,” I think the term is more precise than common usage has it, so I tend to prefer “every accusation is a confession,” or even better, that you’re seeing the reflection of the beam in your eye.
I’m not a fan of Scalia, IOW, and I think his “originalism,” rather like Wendell Holmes attempt at jurisprudence, has died with him. I could always see, from my perspective out of literary criticism, that Scalia’s originalism was just his preference read selectively into law when it suited his purposes, usually in dissent where he was less likely to be responsible for the consequences. Something the Roberts court took to heart as they regally and regularly disavow any responsibility for the consequences of their rulings (Trump v U.S. being the exemplar of their efforts. The POTUS is immune, but for what actions, exactly? The Court will decide that on a case by case basis, if ever another former President is charged with committing a crime while in office. Something that has only happened once in the nation’s history. Which is still more times than a President has been removed from office by Constitutional process. The odds of that issue returning to the Roberts court for further examination, even with Trump redux, are between zip and none.) All Scalia ever offered with his occasional forays into “originalism” was precisely the ipse dixit of what he wanted the law to be in that case.
Which is why he seldom employed it when he was writing a majority opinion. He lived by the ipse dixit when it suited him, because he was damned sure not going to die by it.
Literary criticism is inevitably personal opinion. I like the poetry of W.H.Auden,; but Robinson Jeffers (no relation. I’ve already had an English professor ask me that), didn’t. “We never step twice into the same Auden,” he wrote; and attributed the line to Heraclitus, to underline his meaning. It was not, IOW, a compliment; nor a complimentary essay reviewing Auden’s work. He had his points, but they started with the fact he just didn’t like Auden’s poetry. Of course, Auden is the more highly regarded poet than Jeffers, now, and more widely remembered. (You heard Auden in “Four Weddings and a Funeral.” If you’ve ever read Jeffers, it’s probably “The Death of the Ball Turret Gunner,” and even then you miss something if you don’t have the poet’s historical footnote.) Even Auden’s literary criticism is better noticed than Jeffers’ is. Some of that can be attributed to preference; but most of it is down to literary criticism; what people can say, in more or less objective ways, about the work of Auden. How they can construct arguments for the value of what is there.
Philosophy is approached the same way. People might care that Jacques Derrida was an Algerian Jew living in France, or that Kant was a quiet scholar in Germany with daily habits so precise you could set your watch by them. When I started reading Kierkegaard, the scholarship of Walter Lowrie, his English translator, focused on the love affair with Regina Olsen that S.K. broke off in order to…pursue something. Frankly the analysis was so tangled in Romanticism and English Cavalier poets (“I could not love thee, dear, so much, loved I not…” something… “more.”) I was never clear what Lowrie thought SK was thinking, but the latter left copious journals so I figured Lowrie knew more about Soren’s inner life than I did, and I just accepted that the affair with Regina was somehow, metaphorically or metaphorically, the key to Fear and Trembling.
But it wasn’t. It never was. Eventually biographical facts fade, and you’re left with the work itself. Nobody goes to a Shakespeare play and waits breathlessly for the lecture on life in Elizabethan England beforehand. Contemporary Kierkegaardian scholarship pays more attention to Luther’s influence than Regina’s, and really more to Hegel’s than Luther’s (I think the importance of Augustine is undervalued, but that’s entirely another matter.) It also reads what S.K. wrote, for itself; and places it in the context of Western thought, not only historically (mid-19th century Denmark), but in context of the commentary from contemporary thinkers (Derrida’s The Gift of Death is a brilliant example; an analysis of Fear and Trembling that starts with an essay on the work by another writer, which Derrida uses to make his own analysis of Kierkegaard’s thought.)
The point being, no one has a firsthand opinion of philosophy; or of poetry. We are all like the eunuch (no! Not that way!) in Acts, reading the scriptures but not understanding until someone explains it to us. All of us think we can “appreciate” representational art, because we know it should look like something. Landscape should have foreground and background, and buildings or trees, or just mountains, and we should know them at first glance.
But if the crowds for the Impressionist exhibits at the museum are any indication, we have no trouble seeing lilies in Monet’s paintings, or trees, wheat, and crows in Van Gogh (yeah, I know, post-Impressionism, but stick with me). And with just a little study of Picasso you can see the genius of what he and Braque were up to.
And if Marcel Duchamp doesn’t give you the joy, I can’t help you further.
It is criticism that gives us insight and understanding and the ability to appreciate representational, and non-representational, art. And I’m not even touching on music. What does music represent at all? And you can certainly make arguments for music you like, v. music you don’t like. But can you do it without just appealing to what appeals to you? You can make arguments that the Beatles weren’t that great. Frankly there’s a great deal of “wisdom of the crowd” doing the ipse dixit argument against you, there. If you aren’t willing to examine that, there really can’t be a conversation.
Which brings us back to Scalia, because, like many clever things he said, few of them are all that clever when you review them. Who really “lives by the ipse dixit,” except dogmatic people? And dogmatic people have already lost the argument, because they refuse to ever engage in it. So all Scalia’s really saying is that “dogmatic people are dogmatic.” Which is a not particularly insightful tautology. Which is Scalia’s thought in a nutshell. When he wanted to be serious and responsible (as in, writing a majority opinion he would be responsible for), he was predictable, and often a little dull. He was a perfectly serviceable, middle of the road, conservative jurist.
When he was writing a dissent, or a minority opinion, he could suddenly play the Flaming Originalist, claiming to divine what the “Founding Fathers” meant (a group of men who usually settled for the language finally used for very disparate reasons, hoping future generations would either read the words the same way they did, or have the wisdom to rewrite to mean something of the same to that generation. Thus are we still saddled with the four clauses of the Apocalypse in the 2nd Amendment. Clauses no two people can agree on as to what they mean, and which ambiguity raises them to the level of Holy Writ which Thou Shalt Not Re-Write. Scalia’s interpretation of them is among the worst.).
And I can make an argument on that, based on grammatical and syntactical analysis, as well as history and law. But Scalia’s “originalism” was based almost entirely on “I like it this way, and the ‘Founding Fathers’ were all in agreement with me! Because, see, I’m a very smart guy, so when I say ‘ipse dixit,’ you can rely on my soundness.”
There are schools of literary criticism that look at the historical context of the writing and even the biography of the author for insight into what the author intended (rather than just personal opinion of whether or not you like it. And “like,” or “like like.”) But most modern criticism sees the trap of solipsism in trying to divine the author’s “meaning,” and even abjures that goal altogether as a false one. Modern criticism sees the finished work as a text, separate and apart from its author as children are from their parents. Certainly children are a product of their families (as niece Mary argues Uncle Donald is of his), but what Fred Trump intended is lost to time, and Donald is responsible for who he is. So, too, the “text” stands apart from the author, and “means,” or not, what the reader discerns there.
When I was in seminary I gave a sermon at a church (not the one where I spent two years as the student pastor, where the Holy Spirit entered and left me based on my proximity to the steeple). I knew what I meant in the sermon, and I thought I said it pretty plainly. “Let he who has ears listen.”
A mother came up to afterwards to thank me. She and her adolescent son had been discussing matters spiritual and metaphysical for some time before my sermon (no, she didn’t put it that way) and my sermon had helped her son understand something about Chistology he had been struggling with. Thanks be to God!, as we learned to say, because that lesson wasn’t what I had meant at all!
It was an enduring object lesson in reader-response criticism. And in humility.
Now, if I’m not in control of how my words are heard (and I could tell you the story of a congregational meeting where the knives had already been sharpened because the meaning of what I said was immediately turned against me; that’s when you know it’s time to go) and understood, who is Scalia to claim, sotto voce, some mystic bond with the “Founding Fathers” to know just what they meant in their text? A reading that just happens to agree with what he wants it to mean?
His “originalism” is an argument that doesn’t hold up to the first scrutiny.🧐
N.B. Professor Vladeck is right, the majority reasoning is as thin as Scalia’s originalism (in my analysis). In sum:
And if the unitary executive theory is subject to exceptions for contexts in which the practical consequences of eliminating an agency’s independence would be too extreme, then it’s not much of a theory. Rather, it’s just a balancing test—for those agencies that are “too important” to be subject to direct, partisan political control and those that aren’t. Conceding that point would suggest that agency independence is not presumptively unconstitutional; and that one must do more than just wave their hands at the “unitary executive theory” to explain why dozens of statutes Congress has enacted over more than a century protecting different agencies and officers from direct presidential control are unconstitutional.
And then he puts his finger directly on the problem:
Ultimately, theories with bespoke exceptions aren’t theories; they’re just preferences. And as much as that conclusion bothers me less than those who purportedly claim adherence to such theories, it also requires the justices to do more work—and to explain why, especially at this moment in American history, we should prefer a constitutional understanding under which a single person is given so much control over every facet of governance. One might think that our recent experience would push us to strike that balance differently—at least once we accept that it is a balance that courts are (and always have been) striking.
Great (and mediocre; your host is a humble host) minds occasionally think alike.
