The New York Sophist

Two days ago, someone asked me what my favorite American historical text was. It wasn’t that weird of a question: This is the time of year where I start to plan out my next semester’s courses and figure out the themes I want to teach.

Something that has been on my mind since the Amy Comey Barrett hearings has been the position of Constitutional Originalism. Although made fun of endlessly by the left – mostly revealing the shallow nature of political conversation these days – I am much more intrigued by the nature of this position as a hermeneutic. How do you read this ancient document? Surely you can’t just read it like you are this post? Can you read it like an older book, “Oh that was a good view for back then, but now . . .” – How are you determining that it was a good view? I have so many endless questions about this hermeneutic, and I have to resist the urge to buy a bunch of books on it and just lose myself in figuring it out.

I assume it’s a hermeneutic, but it’s more likely a practice. Joseph Ellis in his recent book American Dialogue: The Founders and Us shows that there is no such thing as being able to read these ancient documents without the practice of engaging the archive and positioning one’s read among the documents that exist there. Although we can never know the minds of the founders, we have many of their expressions of belief, feeling, and attitude about things, and we can assign convincing motives to them that will then apply to other matters. His book is masterful in how to use archival documents to create contemporary arguments.

Originalism, if it makes any sense at all, would be a practice in continuous re-reading of the archive. I doubt that’s what most originalist justices do. Re-reading is a notoriously unstable and threatening practice that people whose credibility rest on them being THE interpreters of something would not be willing to accept. Credibility of the Supreme Court is based on them being the last word, not one word among many (perhaps one of the best reasons we shouldn’t have a Supreme Court under democratic governance, which, is many things but most commonly ‘some words among other words’).

One of the themes I thought about teaching my debate class under would be the Constitution. Read the Federalist Papers (not all of them), Ellis’s book, and perhaps some of the originalist stuff (conservative and progressive texts on originalism [yes, there are progressive originalists]). Traditionally I have just taught the course based on examining the Presidential Debates, Malcolm X’s debate at Oxford Union, James Baldwin’s debate with Wiliam F. Buckley, Jr. at Cambridge Union, and John Quincy Adams’s many debates in the House on the question of abolition. Could still do this course, but would cut the Presidential Debate part out I think. Maybe wishful thinking that the Commission on Presidential Debates will be irrelevant after this election.

So I have been thinking about this list, here it is in no particular order:

The Federalist Papers

Who wouldn’t love a collection of arguments aimed at the public about why the Constitution is a really good idea and not a trick to enforce tyranny and absolute rule on everyone? These were all published in New York newspapers, and well, like we see today, the Federalists had the upper hand because their opponents didn’t own as many great newspapers as the Federalists did. All of them are great, but there are a few standouts, notably 10 and 51, but I’m sure you’ll put your favorites in the comments. A great way to teach this is to have students read the Constitution without the Bill of Rights, since those were not a part of the document being debated – they came along after ratification, and mostly due to the work of James Madison.

Notes on the State of Virginia

The only reason I like this collection of really, really weird observations about Virginia is that they reveal what a messed up person Thomas Jefferson was. Imagine being smart enough to understand the deep connections to scientifically gathered data to agriculture and national/global politics, but also being able to predict the hazards and benefits of a globalized economy. Now imagine you can see all that, but you can’t accept for one second that your slaves are human beings. What a mind?

Common Sense

Thomas Paine was a madman. Not only did he write this document knowing full well that if the revolution didn’t happen or was lost he’d be executed, that wasn’t enough for him. Later on he wrote Age of Reason, an argument against Christian thought in governance while waiting to be executed for being a foreigner involved in the French Revolution. I think I’d be a bit distracted. Anyway, Common Sense is fantastic, making a direct, public argument for why the colonies have a unique duty to resist British rule as they are one of the last safeguards of the concept of liberty (not just liberty, but the concept of it, which is a pretty cool argument).

Civil Disobedience

Henry Thoreau, according to all scholars, was an edgelord, but even edgelords sometimes have a really good point. This is pretty far removed from the earlier documents (which really don’t have that clean of a temporal relationship) but probably wouldn’t exist without the historical sediment of all the rhetoric of the earlier documents. Thoreau writes masterfully here on the duty we have to not obey or follow unjust laws, and that resistance can be many things. Would be nice to assign students to re-write the argument in the contemporary context of police violence and America’s role internationally in making many people’s lives miserable so we can have cheap sneakers.

That’s the list I came up with but I am sure there are many others that I could add here if I thought more about it, but that was my initial reaction. Some other ones that really matter would be Leaves of Grass and of course Adams’s Lectures on Rhetoric which might make fragmentary appearances in any course.

I think an examination of America as a country that was founded on really intense, high-stakes debates would be a nice contrast to all the calls for civility, logic, and empathy that we are seeing from people who really should know better. People don’t have long public debates about things that they aren’t passionate about, and our feelings have just as much right to expression as the cleanest logical formulation. Argumentation and debate are human activities after all.

Ok so poking around and procrastinating, I learned that the person placed in charge of publishing the Constitutional Convention of 1787 debate transcripts was John Quincy Adams. Mr. Rhetoric himself from the 19th century was ordered to edit and publish them in 1818. This guy really loved words. I wonder if I could teach a class just on him and all the stuff he wrote, plus his pretty clever (and incredible) speeches about abolition on the floor of the House. I bet I could design that course and teach it.

These days, I’m thinking a lot more about preparing and teaching courses as online packages. There are so many essays out there about passive income and ways to develop helpful courses for people on different topics and charge them some amount of money to take the course. It’s not for credit; I don’t think any of them really offer any sort of accreditation for completing the course. It’s more like self-help or self-improvement kind of stuff.

I am pretty sure I could put together a decent public speaking course, but I think it would be lost in the noise. I think I’ll put together something like “transformational oratory” or something instead to capture people who don’t just want to speak in corporate boardrooms, but maybe want to influence people in many different situations. Most public speaking stuff assumes a work environment, which is pretty pathetic.

Oratory has been lost in this exchange. Maybe Adams’s return isn’t just an accidental find. Maybe it’s time to bring him to the foreground again and really think about what public speaking and oratory can be.

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.