"The New Yorker" March 28, 2005, pp. 40-55) offers “Supreme Confidence” on “The Jurisprudence of Justice Antonin Scalia” by Margaret Talbot. Talbot plunges to the judicial heart of Justice Antonin Scalia. That heart is his so-called "originalism," which in the words of Robert Bork means "that a judge, no matter on what court he sits, may never create new constitutional rights or destroy old ones." Scalia's originalism fixes, not on "the legislative history of the statue" nor "the intent of the legislators," but on the meaning of words. That is fixed, irreformable and admits of no change. Talbot continues, "Scalia likes to say that a Constitution is about `rigidifying things,’ whereas elections introduce flexibility into the system.”
Talbot offers a perfect example of Scalia's fixedness on the word and consequent rigidity in the flag burning case. "A 'living-Constitution'judge,' he explained, is a `happy fellow who comes home at night to his wife and says, `The Constitution means exactly what I think it ought to mean!' By contrast, Scalia said, he was sometimes forced by the rigors of originalist methodology to make decisions that lead to consequences he finds repugnant. He noted that in 1989 he voted to strike down the conviction of a man who had burned the American flag, on the ground that the First Amendment protected such symbolic acts. `Scalia did not like to vote that way,' he said, slipping into the third person, as he often does during comic riffs. `He does not like sandalwearing bearded weirdos who go around burning flags. He is a very conservative fellow.' Although originalists are not supposed to care about the outcome, an originalist's wife, evidently, might sometimes consider this a crock. Scalia went on, `I came down to breakfast the next moring and my wife - she is a very convervative woman - she was scrambling eggs and humming `It's a Grand Old Flag.' That's a true story. I don't need that! A living-Constitution judge never has to suffer that way.'" Unable to attend to original meaning, Scalia must hew close to original wording, which leaves him little wiggle room to defend the self-evidence of the truths grounding the Constitution and the Bill of Rights.
George Kannar, a scholar at the University of Buffalo law school, writes (Talbot paraphrasing): “When judging a case, Justice Scalia will consult a dictionary if necessary to find out what a statute means, but he does not consider the legislative history of the statute, and he makes no attempt to divine the intent of the legislators. This rigorous formalism, and his emphasis on finding the plain meaning of the text, is a habit of mind... that runs `deeper than his specifically political convictions." The epistemological key is Scalia's conviction that (Talbot paraphrasing) “the meaning of those words [of the Constitution] was locked into place at the time they were written.” This is the nub of the question. And it is correct. Indeed, “the meaning... was locked into place at the time they were written.” But that meaning cannot be unlocked without entering into the intent of the lawmaker. And that intent can only be known by entering into his/her inner experience and consciousness at the historical moment of writing the law. But this is as possible as knowing another person in his/her subjectivity.
The reality is that no one can enter into the experience and consciousness of the subjectivity of another as “I” since the “I” is the inviolable and autonomous free self-determination of the person. Our knowledge of persons, as all other realities, from the outside must be objectified. But there is a way to experience, and therefore become conscious, of the subjectivity of the other. Pre-papal John Paul II suggests:
“The I – other relationship… does not exist in us as an already accomplished fact; only the potentiality for it exists. Experience shows that a certain impulse is needed to actualize this relationship. Although this impulse has been expressed in a commandment [to love one another], this does not mean that it may remain merely on the outside. It must arise from within. The commandment of love prescribes only this: that each of us must continually set ourselves the task of actually participating in the humanity of others, of experiencing the other as an I, as a person….
(I)t would be hard to deny that, since the other stands before us as a specific task, the actualization of such relationships always depends to a basic degree on the will. Experiencing another human being, one of the others, as another I always involves a discreet choice. First of all, it involves choosing this particular human being among the others… I thus in a sense choose this person in myself – in my own I – for I have no other access to another human being as an I except through my own I.”
This means that the task of adjudication would demand entering into the historical experience and consciousness of the American founding. That is, if you wish to enter into the meaning of the literal Constitution. Nothing else will do since then, if not, one is imposing one’s own meaning in the critical task of adjudication of the text for the entire nation. And I would suggest here that the Judeo-Christian faith experience of the 150 years of founding from 1620 to 1776 was precisely the experience and consciousness that triggered the founding and grounding of the dignity of the human person as a self-determining freedom that produced the greatest revolution in the history of the world set off by the smallest of provocations (see Gordon Wood on the American Revolution). I do not say religious concepts or creeds or any form of religious fundamentalism. I say the experience and consciousness of the dignity of the human person, of the self, by the act of self-transcendence that is Christian faith. Rather than being an intellectualism of religious concepts, Christian faith is an anthropological act of self-transcendence that is obedience to the revealing Person of Jesus Christ. This faith experience is the basic anthropology at the basis of the American experiment, and one would have to enter into it experientially in order to understand the meaning of the articulation of self-evident truths that constituted the civic founding of the American body politic. It is a secular society. Perhaps the only one since it is built on the freedom not of doing anything, but of serving the dignity of the person, which is an experienced truth, the truth embodied in the words that must order civic freedom, then and now.
The major antecedent to this epistemological point is the original experience of Adam as reported in Genesis 2 where the obedience to the Creator in naming the animals produced the consciousness of being alone. The first human experienced being radically different from the rest of creation precisely because of mastering self in the original act of obedience. The human person morphed form being an “object” even as a rational animal into being a “subject,” an “I,” in the image of the “We” of the Creator. The entire history of Old and New Testament faith is the mimicking of that original obedience which yielded the experience of being set apart from the rest of creation not as superior to “things” but as a “people” (Church) of God. That experience was replicated on American soil from the arrival of the pilgrims to the writing of the Constitution.
In the West since the Cartesian beginning of the Enlightenment, the person has been split into a dualism of mind and matter. This epistemological split has left us with this dualism of thought and ideas that are not “real,” while matter alone is real. “Meaning” means reduction of every thought and perception to matter and its measurement. The key to overcoming the dilemma is the recognition that there is precisely a faith experience of the person, and that this experience is an experience of the self, the “I,” not as thought or consciousness, but as Being. Only Karol Wojtyla, having done his Doctoral Thesis on the meaning of faith in St. John of the Cross applied the method of phenomenology to this experience and used the Thomistic metaphysics of esse to give an account of it. His definitive account is found in the Acting Person. But it is here, and it seems to me to be only here, that the dualism and the horns of the dilemma are overcome.
Scalia and Kennedy are both variously hoisted on these horns. Scalia says that the meaning of words (the Constitution) was locked into place at the time they were written. Words are material things (objects) that are independent of the framers (subjects) and he (Scalia) is “supremely confident” that meaning is embedded in them. It is, but how to retrieve it. Kennedy, in his turn, has hoisted the most outrageous subjective statement on his petard of the dilemma when he wrote in Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Of course, Scalia is totally right on the procedural account of being an adjudicator whose task is to interpret the wording of the document of the Constitution. And he will be true-to-reality-right in many cases by attending only to the wording of the Constitution, as we can understand it on face value. But he has not gone to the heart of the problem of meaning. Hence, he is the safest bet the country has, in the way a polyhedron is asymptotic to a circle. Like a moth, he gets close to the flame but never passes through it. But at least he knows where it is.
* * * * * * * *
As modern day example of the kind of epistemological exercise I think is involved in discovering meaning by discovering the self, I offer the example of Helen Keller’s discovery by the use of language in naming the water + the remarks of Walker Percy.
In one hand, her nurse Ann Sullivan is tapping in the Braille as the symbol of water; on the other hand is pouring water from the spout in well house in Tuscumbia Alabama in 1887:
“We walked down the path to the well-house, attracted by the fragrance of the honeysuckle with which it was covered. Someone was drawing water and my teacher placed my hand under the spout. As the cool stream gushed over one hand, she spelled into the other the word water, first slowly then rapidly, I stood still, my whole attention fixed upon the motion of her finders. Suddenly I felt a misty consciousness as of something forgotten – a thrill of returning thought; and somehow the mystery of language was revealed to me. I knew then that “w-a-t-e-r” meant the wonderful cool something that was flowing over my hand. That living word awakened my soul gave it light, hope, joy, set it free! There were barriers trill, it is true, abut barriers that could in time be swept away.
I left the well-house eager to learn. Everything had a name, and each name gave birth to a new thought. As we returned to the house every object which I touched seemed to quiver with life. That was because I saw everything with the strange, new sight that had come to me. On entering the door I remembered the doll I had broken. [She had earlier destroyed the doll in a fit of temper.] I felt my way tot he hearth and picked up the pieces. I tried vainly to put them together. Then my eyes filled with tears; for I realized what I had done, and for the first time I felt repentance.”
Walker Percy comments:
“Here in the well-house in Tuscumbia in a small space and a short time, something extremely important and mysterious had happened. Eight-year-old Helen made her breakthrough from the good responding animal which behaviorists study so successfully to the strange name-giving and sentence-uttering creature who begins by naming shoes and ships and sealing wax, and later tells jokes, curses, reads the paper, writes La sua volontade e nostra pace, or becomes a Hegel and composes an entire system of philosophy.”
The point being made is the need to enter the experience of the American founding to re-enter the meaning of the words. They can only be understood "from the inside."