Clarence Thomas on 60 Minutes/Thoughts on Integral Judiciary

[Ed. Morphed into two posts in one. Title meant to reflect that fact].

Fascinating, powerful interview no matter what one’s view of the man, his judicial philosophy, etc.  Watch here.

I’m a little short of change right now, and with the American and Canadian dollars on par, buying books up here is no good (the books are still priced for the days of $1 US=$1.60 Canadian).  I would like to read his book.

I remember the hearings, vaguely.  I was young (11-12) but even back then was the political junkie I am today.  Even then though I remember feeling like both sides were lying.  I don’t know that the term a “high tech lynching” was what I would have called it, though truth be told I do like Thomas’ black power meets conservatism streak.  I like in the interview when he says liberal was just too lukewarm for me.  (Nice ‘fro btw).

I despise the Uncle Thomas language.  He may be wrong about thinking affirmative action should be canceled, but these terms like race traitor are deplorable.  (I go back and forth on affirmative action…I think it would be better to be an asset-deficiency program aimed at disconnected, poor youth, no matter what color.  Middle class/wealth minorities should not receive special consideration in my book).

That said, there were too many weird things in Anita Hill’s testimony for me not to have been based in some reality (the infamous “hair” on the soda can for one).  Though, on Thomas’ side, I imagine it was an issue that just passed by and only his confirmation and an agenda against his nomination brought it out in the open.

Whatever the truth or falsehood of Hill’s charges, the way it was leaked was wrong, illegal even I think.  Thomas says that episode laid the groundwork for the attack on Clinton.  He’s right about that–that the politicization through the 90s (by both sides against key characters from the other party) seriously weakened the moral standing of the United States.  Particularly the fights over Supreme Court Justices.

[ed: beginning of second part]

As to his judicial philosophy—controversially called The Constitution in Exile, more neutrally perhaps originalism or the one I prefer strict constructionist.  I think the latter term is actually correct but that it interestingly undercuts the understanding that those who typically espouse such a belief understand it to mean.

The notion of originalism, in all its varieties and sub-sects, is that the Constitution had an original and fixed meaning at the moment of Ratification.  The best way to interpret the Constitution, so this theory argues, is that to understand it according to its original interpretation.

The major flaw (though not a mortal one) in this theory is as follows:  it assumes we from our vantage point of 200+ years removed can reconstruct the original contextual understanding.  Again like What Would Jesus Do/Historical Jesus studies, it’s the What Would the Founders Do/Historical Constitutionalism.

Epistemologically, you can not get there from here.  You can never get back to the original meaning.  All forms of 20th century science and philosophy of science have taught, not to mention studies in linguistics, anthropology, and the like, have taught us that there is no neutral, non-interfering observer.  Originalism, philosophically is sourced in the myth of objectivism.

That is why the term strict constructionist is so deliciously revealing.  It is a construction, i.e. it is an interpretation from our day of the original meaning and context.  It is just one that is strict (again I agree with that).  But where it fails (esp. with Scalia) is in assuming that it can ever return to the original context.  That there is some pure original context.

The whole argument about an original context only arises as a counter-reaction to a perceived “broad/loose construction” or creation of a new judicial context, a non-original one.  For this group, that normally means the New Deal Legislation/framework and the 50s-70s Liberal Court Era.

In other words strict constructionist judges of the post 70s (Rehnquist, Thomas, Alito, Scalia, Bork, etc.) all do not exist in the original context.  They exist in their construction of the original context/meaning.  Their writings and thinking occludes the gap, the distance, the other-ness of the Founders from our own day.  Sameness & otherness co-arise.

The way to overcome epistemologically this Kantian impasse, was pointed out by Whitehead (and brilliantly imo re-framed by Wilber) in the following way.  The original context is within us, within our consciousness because every moment prehends the prior and the universe is the concatenation of every moment plus the new free context on the edge.  So the original context is within us–but the moment we look within, historically, by reading the US Constitution, thinking about its implications for our day, we interpret it in the next prior moment which becomes part of the train of the Kosmos.

An originalist/strict constructionist view as a product of modernist/objectivist epistemology tends to de-historicize the original context.  It assumes too often a 1:1 correspondence between their day and ours.  That the original context can be discerned by us (problematic in many ways) and then immediately jump the trail of history and leapfrog to our day and be simply implanted as is (far more problematic).

Now that doesn’t mean we can’t have better or worse reconstructions and get closer and closer to a better understanding of the “original” context.  We can, do, and should.  Just all the while recalling that it is a contemporary that has decided what was the original context.  Those in the original context had their own prior original contexts and would never have described themselves as such.  People living in the Middle Ages did not say the were living in the Middle Ages.  That is a later interpretation read back into that day and age.

But this drive towards a better and better understanding of the original context is asymptotic to the line of the perfect understanding of the original context.  It will never touch the line bc it can not.

We retrieve what we need for our day and age.  Strict constructionists are no different in that regard than anyone else.

Neither side is willing to see that our law is based on communicative reason, as Habermas would say.  That it takes place in an evolutionary frame.  That law is intimately involved with story and narrative construction.  Law originally grows out of theology (canon law) and in the English tradition of common every day practice (communicative reason, Heidegger’s opening).  In other words it grows out of praxis, narrative, story, cosmology, and theology.

That being said, I think strict constructionism is a (not the) valid form of judicial philosophy and one that always has to be taken into account.  But only one.

Judicial liberals try to act as if they are not in fact re-interpreting the Constitution.  Conservatives just saw they aren’t.  Fact is, both are.  Both sides are combinations of transplanted original meaning and re-interpretation/modification.

Judicial liberals, like religious ones, do not understand the position of negation and preservation.  That the opinions grow out of perspectives, out of consciousness.  So be unable to deal with that, they throw in vague notions like the “spirit of the Constitution” (or say the “spirit of Vatican II Reforms”).  Or they go about re-reading the “original” context in a more liberal light (Marxist historical Jesus, for example).  Leaving one wondering whether they are arguing in a circle.

Because to do otherwise, would take them down the road of a Meister Eckart, spiritual sense of scripture–in this case judicial canon.  Namely that we are New Founders and have the “consciousness that was in the Founders”.  From Eckhart’s perspective, the awakened one was Scripture/the new mouthpiece.  Original context means revelation is closed.

And even that consciousness awakening is not itself another 1:1 correspondence, as was the mistake of the Eckharts, Origens, and realizers of the pre-intersubjective (pre-postmodern) days.  Our understanding of awakening both today and in the past is itself a context within which we find ourselves.  But at least it starts moving in a much more interesting direction.

An (AQAL) integral judicial philosophy would I think call attention to all this.   One way to start is by asking of all the different judicial philosophies/practices/communities in existence, where is each right.  What context(s) within the Kosmos does each held solidify and support?  Start to piece those true-s together, minus the one and only winner-take-all mindset of each, and see what directions start to emerge, the grain of the Kosmos becoming more and more clear.

Published in: on October 11, 2007 at 11:10 am  Leave a Comment  
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