The New York Sophist

Still no sign of my ancient copy of The Federalist Papers but for some reason Amazon gave me a 15 dollar discount on a Kindle version of them, so I’m good to go for my super-awesome procrastination plan of reading them through instead of doing any actual work. I feel like a rhetorical defense of originalism is what’s brewing in my head and although that might sound like a contradiction to some of you and incredibly stupid to the rest of you, I think that any defense of any hermeneutic approach is going to be rhetorical.

Two things on my mind this morning as I virtually attend the C-SPAN Center for Scholarship and Engagement Annual Conference:

I forgot, or perhaps never knew that The Federalist Papers were aimed at, and made for a New York City audience. It was very important to Hamilton’s strategy of ratification of the work of the convention to get the city on board with the new Constitution, as that would flip a lot of other minds in other towns as well as render most of New York’s citizens views outside the city irrelevant.

For an unnamed side project that I’ll probably talk about on here one day, I’m putting together a class tentatively called “Debating New York” where we just go through all the various controversies that New York City has faced over time and have class debates, discuss, research, and write about them. This class takes on my idea that debate is a site of inquiry meant for discovering and learning. So now I can include the debate over the Constitution as a New York city debate, thanks to Alexander Hamilton anyway.

The other thought is this: Could you do an entire debate or argument course on The Federalist Papers? Like, just read through those, some of the Convention debates from Madison or other sources, and have the students construct arguments about and around the issues that are brought up in the papers? I don’t think every essay matters that much anymore, but depending on when you taught the class there would be some play and emphasis. For example, if I was teaching this right now I would put a lot more emphasis on Hamilton’s three essays on the role of the judiciary and try to see what those mean for the Barrett hearings, as well as for her understanding of originalism. What’s an originalist take on the role of the Supreme Court, or the process for getting people nominated and confirmed?

In times where there are congressional debates, perhaps focus more on those essays. Maybe pair the reading of the papers with Joseph Ellis’s great book Quartet which would give some more background on the framing and shaping of these arguments. I wonder if I could pull this off.

Regardless of these future plans, it’s becoming clear to me I’m going to have to go up to my office to see if I can find my 1990s copy of the book, my dissolving Federalist papers collection, on my shelf up there, no doubt coated with a fine powder of 1950s building materials sluffing off the celling, dirt, and dead coronavirus particles. Sounds so exciting. I really just can’t wait. Although I did hear a rumor I’m getting a new office, but I’m sure that means the actual policy is at least 2 years away.

This amazing op-ed from history professor Jack Rakove is perhaps an attempt at a liberal “take down” of originalism, but winds up being a pretty good defense of an originalism that we could all support: What were the topoi and commonplaces of the debates around constitutional issues? What sort of metaphorical connections can we make to those commonplaces and topoi today? How do those arguments interact and guide us for the creation of our own reasons in support of various laws and rights? Most importantly, can a debate – not the result of a debate – be used as compelling proof for something?

Of course none of this came out in the hearings for Judge Barrett. Mostly because the people we elect to the Senate are incredibly stupid, power hungry people who do not approach the world, let alone any issue, as a complex text that invites ongoing encounter and regular reiteration of meaning. Even if an issue feels or seems unassailable, it is good to practice the reasons why, and practice them in terms of language – articulating them orally for audiences.

Originalism was pretty well defended on the last day of the hearings, day four, where everyone else was talking and not Judge Barrett and the Senators (“What do you think of this law/decision?” “Without a case before me, I cannot think about it in a relevant way to this hearing”) I know she didn’t say that, but that’s what she meant. She has a lot of opinions, a lot – just look at how many things she’s written and how many talks she’s given, for what publications and audiences. A law professor, any professor actually, has a lot to say and will never turn down a chance to say it. But that’s not why she was there in the hearing room. That’s what we all wanted, and that’s why she was there, but that’s not why she was there. It’s complicated.

It’s a bad model, having someone interview for this job the same way you’d interview for anything else. I’d argue this interview is a lot less challenging than any other professional interview out there, particularly jobs that require you to make decisions based on hearing speeches and reading voluminous texts that are interpretations of interpretations.

Anyway the fourth day – lots of conversation about Originalism and it’s value and failings. Great stuff there from Judge Thomas Griffin, who is also a law professor, on the value of originalism for progressive thinkers. His comments seem to fold right into the editorial which suggests, at least how I’m reading it, that originalism means you need to immerse yourself in the arguments of the debates around the Constitution, not what this or that founder believed.

The trouble isn’t having an interpretation or hermeneutic, the trouble is trying to explain to people that context is important and important because it is uncertain, and calls us into account to make sense of it. It calls for an accounting, which is an accounting of us. That’s what should be going on.

I want to make a video about this but haven’t had the time or energy. I’ve just been looking around for my ancient copy of The Federalist Papers which I used to carry around with me for 2 years in High School, just in case I needed it to prove something about some political argument I was having. Anyway, that old book is probably long gone, can’t find it anywhere. I might have to get a new copy which is weird to think about and also kind of fun as it will be time to mark it all up again. Would be a lot better to mark up the old one again and see how I’ve changed. But I can’t expect to still have a paperback from the 1990s around here. Right after I put in the order, I will find it somewhere I bet.

All I’d like to do this week is sit around and listen to music and read the Federalist Papers, but it’s going to be another really busy week.