Monday, November 21, 2016

I Think This is a Surrender

Saul Cornell; 56 Am. J. Legal History 21 (2016):
It is ironic that recent efforts to understand the original meaning of the Constitution have shown little interest in understanding the way Americans in the Founding era theorized the nature of language itself, particularly constitutional communication. Compounding this irony is the fact that Federalists and Anti-Federalists each were deeply concerned about the way politics could infect constitutional language, distorting it. By contrast, most forms of originalist inquiry have been far less sophisticated, choosing instead to approach language as if it were a transparent medium of objective communication. Future efforts to understand the original debates over constitutional meaning need to reject such simplistic and anachronistic assumptions. Indeed, historian Jack Rakove has recently argued that any attempt to understand the nature of the original debate over the Constitution must grapple with the underlying conceptions about the nature of language held by members of the Founding era. In particular, Rakove notes that Madison's own approach to constitutional language and interpretation echoed themes and concerns about semantic instability found in Locke. Historian and philosopher Hannah Dawson has focused renewed attention on the connection between Locke's views of language and his political theory. Dawson argues that Locke believed that "the meanings of words are unstable, that different people mean different things by the same words." This view had profound consequences for post-Revolutionary politics and law.
This is something of a victory.  Cornell is admitting that dictionary and contemporary use of words doesn't give him his desired results no matter how he tortures the history.   If you don't recognize his argument, it is deconstructionism: the belief that it is impossible to really know what a writer intended because the meaning of words is highly dependent on your race, class, and economic situation.  The originator of this idea was Paul De Man.  After his death researchers found that during Nazi occupation:
The record showed that, for all intents and purposes, the young de Man was a fascist. His eyes were open; he did not write in the shadows. The paper he did most of his journalism for, Le Soir, was the biggest daily in Belgium. The Germans took it over almost immediately after occupying the country, in May, 1940, and staffed it with collaborationists. Anti-Semitic articles were sometimes a front-page feature.
De Man started writing for the paper in December, 1940, just after his twenty-first birthday. His articles—he eventually had a weekly column, called “Our Literary Chronicle”—largely followed the Nazi line, as did the pieces he contributed to a smaller German-controlled paper, Het Vlaamsche Land (The Flemish Land). He championed a Germanic aesthetic, denigrated French culture as effete, associated Jews with cultural degeneracy, praised pro-Nazi writers and intellectuals, and assured Le Soir’s readers that the New Order had come to Europe. The war was over. It was time to join the winners.
And the response of his deconstructionist fans?
And there was some hermeneutical fancy footwork—a big mistake when what most needed defending was the integrity of hermeneutics. No one approved of what de Man’s articles appeared to be saying, but a few tried to suggest that, on finer analysis, they weren’t really saying it, or they were saying it and unsaying it at the same time—that the articles were, as one professor put it, “enormously complex and profoundly ambiguous.”
You can't really tell what he meant because the meaning of writing is in some sense unknowable. There's a joke about the literature professor who tells his students that because the meaning of words is unknowable, we can't really know for sure what a book means.  Then he calls home and leaves a message for his wife asking her to order a pizza for dinner.  If he arrives home and finds one of his students on the table with an apple in his mouth, well, how could his wife have known what he wanted?

Because the meaning of words is  unstable and therefore true meaning is impossible to determine, I am pretty sure Cornell's article really means: machine guns are protected by the Second Amendment.

Let me clearer: Saul Cornell for many years ran the Second Amendment Research Center at Ohio State, the goal of which was to argue the Second Amendment did not protect an individual right to arms.  Since DC v. Heller (2008), this seems to have vanished as an effective propaganda center.

1 comment:

  1. How was Cornell trying to twist the language? What part of the constitution was he attacking?