Stanley Fish on the Constitution

From Kevin Vanhoozer’s Is There Meaning in This Text:

Fish takes Rorty’s pragmatism and applies it to the project of interpreting texts. Like Rorty, Fish eliminates the distinction between interpreting texts and using them. In particular, he rejects the notion that ‘getting it right’ in interpretation means recovering the author’s mind or intention. The idea of the author is useful for some purposes, but we should not be fooled into thinking this concept corresponds to something in the text, nor should we think that everyone should use texts in order to find out something about their authors. We read books for many different purposes: for instruction, for entertainment, for encouragement, for escape. pp. 55-56

Fish avoids a thoroughgoing solipsism by locating the ‘authorizing agency,’ the center of interpretive authority, not in the author, the text, or even the individual reader, but rather in the interpretive community. p. 56

To say that we must read in order to recover the intention of the author is, for Fish, authoritarian. How dare you tell me what to be interested in or what to do with a text! p. 57

Where readers reign, reality recede. Fish’s pragmatist creed is briefly stated: “I now believe that interpretation is the source of texts, facts, authors, and intentions.” Literary knowledge is for Fish a kind of self-fulfilling prophecy: readers will see what they are encouraged and taught to see. The literal meaning is the one the institution permits; the ‘natural’ sense is the one nurtured by the community. pp. 169-70

If all appeals to the text-in-itself are ruled out, and if all argumentation is relative to the norms of each interpretive community, then the only way to resolve interpretive differences is through majority rule. Fish is aware of the problem: ‘Does might make right? In a sense the answer is yes, since in the absence of a perspective independent of interpretation some interpretive perspective will always rule by virtue of having won out over its competitors.’ p. 170

Either a) Fish’s views have changed, b) Vanhoozer has misunderstood him, c) Vanhoozer has deliberately misrepresented him, or d) I have misunderstood both of them. Read his latest op-ed piece in the NY Times:

Why is Strauss trying to take the Constitution out of the constitutional interpretation loop? Because he wants to liberate us from it as a constraint. He repeatedly invokes Thomas Jefferson’s remark that “The earth belongs to the living and not the dead” and expands it into a question: “What possible justification can there be for allowing the dead hand of the past . . . to govern us today?”

That is like asking what justification is there for adhering to the terms of a contract or respecting the wishes of a testator or caring about what Milton meant in “Paradise Lost” or paying serious attention to the items on the grocery list your spouse gave you. In each of these instances keeping faith with the past utterances of an authoritative voice — the voice of the contracts’ makers, the voice of someone’s last will and testament, the voice of the poet-creator, the voice of the person who will make the dinner — is constitutive of the act you are performing. And not keeping faith raises the question of why we should bother with the Constitution or the contract or the will or the poem or the list at all. Why not just cut out the middleman (who is not being honored anyway) and go straight to the meanings you want?

The incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, “it makes sense,” he says, “to adhere to the text even while disregarding the framers’ intentions.”

I am at a loss to know what “adhere” is supposed to mean here. According to the dictionaries, “adhere” means “to stick fast to” or “to be devoted to” or “to follow closely.” But you don’t do any of these things by “disregarding” the intentions that inform and give shape to the text you claim to “honor”; you don’t follow closely what you are in the act of abandoning. Instead, you engage in a fiction of devotion designed to reassure the public that everything is on the (interpretive) up and up: “The Court could take advantage of the fact that everyone thinks the words of the Constitution should count for something.” Here “something” means “anything,” as long as it hooks up with what everyone thinks; and the advantage the Court is counseled to seize is an advantage gained by pandering. If this is what the “living Constitution” is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.

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