Can the framers of the Constitution, and the framers of our religious texts, be themselves framed?
Berkeley linguist George Lakoff explains why a phrase like “activist judge” exploits a naive notion of what it means to interpret a text (like the American Constitution). And he argues that Democrats shouldn’t yield such phrases to Republicans (as in the debate over Sonia Sotomayor):
Conservatives are . . . as much “judicial activists” as anyone else. So how do conservative Republicans get away with the “activist judge” ploy? Democrats hand it to them. Why? Because most Democrats grew up with and still believe a view of reason that has been shown in cognitive science and neuroscience to be false. The sciences of mind have shown that real reason is largely unconscious, requires emotion, uses “models” (frames, metaphors, narratives) and so does not fit the world directly. But Democrats tend to believe that reason is conscious, can fit the world directly, and works by logic, not frames or metaphors. They thus believe that words have fixed literal meanings that fit the world in itself, regardless of models, frames, metaphors, or narratives. If you believe this, then original meaning could make sense. Democrats don’t fight it when they should.
In other words, what far-right conservatives do in the reading of the Constitution is the same thing that they might do when they read the Bible in a fundamentalist manner. They imagine the meaning of a particular text to be mysteriously and magically inherent in the text itself, and easily peeled off of it. One reads, in short, naively, and pretends that one’s reading is not even an interpretation of a text, but just a straightforward and neutral explication of what common sense necessarily shows to be there. No readerly “action” or framing needs to be involved in the understanding of a text, or if there is any, it is minimal.
Thus only liberal “activists” really read texts, well, actively. Conservatives just take texts for what they “obviously” say. The debate over “activist judges” has thus been allowed to be framed in terms of fundamentalist hermeneutical assumptions. And liberals have the steep hill to climb of making the case for why the reading of texts should ever be complexified. In a culture with a low attention span, complexity and nuance are hard-sells. Sonia Sotomayor, in her upcoming public hearings before the Senate, may find out just how hard a sell it is.
Keep it simple, stupid?
Prometheus Unbound 
I’ve also noticed that conservatives read the Constitution in this way. It really disturbs me.
I think you are correct on interpretation, but it seems to me that the naive belief that the Constitution is absolutely static is also at the heart of conservative silliness. A powerful originalist argument can be made (actually, this seems to pretty clearly be an historical fact) that the framers intentionally fashioned the Constitution in a flexible and vague manner precisely to keep it from being rigid and static–and then, of course, they wrote right into it the ability to amend the damn thing!
Jared,
I feel the ground shifting beneath us as you speak. You mean the Constitution is not the Word of God!?! And it’s subject to interpretation and even addition?
Who’d of thunk it?
Well, from my point of view, if you can take a comma anywhere from the Constitution, you might just as well put a question mark at its end. Give me that old time strict constructionism. I mean, if the Constitution was good enough for Jesus, why then, buddy, it’s good enough for me.
I don’t mean to be flippant about the rule of law, but what really scares conservatives, when it comes right down to it, is that maybe the Supreme Court will, at some future date, extend the equal protection clause to homosexuals. And homosexual rights are nowhere explicitly mentioned in the Bible (I mean the Constitution, excuse me).
—Santi
Jared:
That would be quite ironic if (as you say) the original intent of the framers was for the Constitution’s flexibility to changing circumstance. That would goof up the conservative line of argument that original intent is important.
I remember at the end of Kazanzakas’s “The Last Temptation of Christ” that Paul tells Jesus that he doesn’t really care what Jesus meant to say, and that the sooner he went away the better!
—Santi
Santi,
This is a great article I read while studying Constitutional Law, but there are many good articles along these lines: http://www.randybarnett.com/nonoriginalists.htm
I began as something of a “moderate” strict constructionist–although not from a wholly conservative approach. I knew about Lochner v. New York, that there were conservative activists too, etc. (Lochner, by the way, is another great reason to reject pure economic libertarianism).
Studying Con Law forced me to the conclusion that a straightforward “strict construction” of the Constitution is impossible. I’m impressed with Bork, and Scalia, and others that try to do it. But everyone knows they can’t truly pull it off.
That said, I fear judicial activism (everyone fears it when the Court isn’t on their side, right?). My own view is that the law must be accountable to the people in some clearly democratic fashion, first and foremost. I know libertarians don’t like this idea–for fear of the tyrany of majority. But I see no other way of legitimizing law. The Social Contract is the first act of democracy.
So, for example, with respect to gay rights, I think that the law should change with the culture (and it is). I think the recent California ruling was correct, for example–the ban being upheld. Courts generally should not strike down a direct vote of the people (I can think of a few exceptions, but in general, democracy must prevail). I think everyone knows that California is, at any moment, about to shift democratically in favor of unions or marriage (did you happen to see that Rick Warren, for example, stated his regret for supporting the ban?).
I think that gay rights will ultimately be won by convincing the culture, changing minds, and affecting change via democracy. I think we are seeing it happen right now (and perhaps, when polls show sufficient support, then it is appropriate for the courts to act).
I know you might disagree with this view.
Jared,
You might be surprised to learn that I actually agree with you about gay rights. I think that the rights of gays will be more secure if they are won by systematic democratic means, state by state. I’m not happy to think that anyone’s rights should rest on the whims of majorities, but in this particular instance, I think that, given the cultural volatility underlying the issue, that the culture needs to change, as you say, with the law. I would be more assertive about the courts, however, if I thought that gays had poor prospects of getting their rights by democratic means. I’m pragmatic about it, but only because I think that the next decade will be decisive and historic. I really think that gay rights is the culmination of the civil rights movement and the notion of equality and equal treatment of the law (as idealized in our founding documents). After this battle is won, it’s not clear to me that there are any groups out there left to protect. Do you know of any?
—Santi
Santi,
Since you asked…
I sincerely do not mean to compare homosexuality (or racial minorities, or any other current or past group associated with civil rights) to the following, but it would be interesting to hear your thoughts about moves by polygamists and the organization NAMBLA to try to frame their arguments in terms of civil rights.
Okay. This thread has moved way off topic now. Sorry. We can discuss this later if you don’t care to do so here.
Jared:
I really draw the line at consenting adults—so NAMBLA falls beneath my civil rights radar of legitimate sexual expression. I do think that polygamists that are of age have a right to practice their peculiar religious and sexual practices. I’ve never understood the taboo regarding polygamy. It is a sufficiently rare form of sexual practice that it will certainly always be a practice of a small number of people. I say leave them alone (so long as everyone is 18 or older and clearly consenting). I do think it is legitimate for the State to make a safe haven for people to go to if they don’t want to be part of a polygamist commune, but I wouldn’t interfere with consenting adults.
I personally don’t like cults or cult expression, but I think it is protected association. And America has a long tradition of communal experimentation accompanied by non-traditional sexual arrangements.
I suppose that future civil rights fights might entail assurances that people can raise their children largely as they see fit, without excessive State interference. I believe that parents should be able to homeschool their kids largely unharrassed by the State. There will always be civil rights issues on the periphery, and the reclaiming of rights back from the State where there are reversals, but on balance I think that the gay rights movement pretty much represents the end of the line of a large historic group that has been discriminated against.
—Santi
—Santi
Jared:
There is, by the way, a supposed “thread” law: each comment in a thread takes you further away from the prompting post. I think it is perfectly okay for a thread to drift away from the initial topic. It’s kind of a form of Darwinian contingency—you never know what something will morph into.
—Santi