Good and Evil, Law and Language

Tuesday, October 8th, 2013 Politics / Writing

Jennifer Senior’s New York Magazine interview with Supreme Court Justice Antonin Scalia, wherein Scalia talks candidly about the Devil (whom he views from a strict, literal standpoint—“Jesus Christ believed in the Devil,” he points out) is drawing keen interest even when compared to the many other incendiary exchanges with the controversial jurist (both recent and not so recent). The Satanic exchange is probably the most scandalous portion of the unusually revealing discussion, but Scalia’s notorious “originalist” views on judicial language—about which Senior manages to evince remarks of a greater depth and candor than are usually forthcoming from Scalia and his ideological brethren—are the crucial heart of the interview. “Words have meaning,” he insists, “and their meaning doesn’t change.”

In From Bauhaus to Our House, his 1981 critique of modern architecture, Tom Wolfe describes what he considers to be the American intellectual blight of the 1960s:

The twentieth century, the American century, was now two-thirds over—and the colonial complex was stronger than ever. Young philosophers in the universities were completely bowled over by the French vogue for so-called analytical approaches to philosophy, such as Structuralism and Deconstructivism. The idea was that the old “idealistic” concerns of nineteenth-century philosophy—God, Freedom, Immortality, man’s fate—were hopelessly naive and bourgeois. The proper concern of philosophy was the nature of meaning. Which is to say, the proper concern of philosophy was the arcana of the philosophical clerisy itself. In an era in which wars had become so all-encompassing they were known as world wars—in which people were now concentrated in metropolises of a scale and complexity never before envisioned by man—in which collisions of the races began to shake the stability of the globe—in which man had usurped the godly power to plunge the world into destruction—in such an era, what was the overriding concern of American philosophers? Why, it was the same as that of the French philosophers whom they idolized. By day, Structuralists constructed the structure of meaning and pondered the meaning of structure. By night, Deconstructivists pulled the cortical edifice down. And the next day the Structuralists started in again…

In other words, Wolfe argues, philosophy must concern itself with morality and virtue—with good and evil—and yet, after Structuralism, it has gone astray, drifting into the insular ephemera of “meaning”—of semantics, ontology and epistemology.

Today, thanks to Jennifer Senior, we see that Wolfe was wrong. As Mark Lieberman points out on his “Language Log” blog (What did Justice Scalia mean?) Scalia’s “second phrase [‘And their meaning doesn’t change’] is transparently false, which leaves us with the usual problem of interpretive abduction:”

Maybe Justice Scalia was misquoted. […] Maybe he really thinks that word meanings don’t change. This is unlikely, but conceivable.

Maybe he meant to express the tautology that what words meant in (say) 1789 is (and forever will be) what words meant in 1789. This seems to be the most likely theory, but if it’s correct, he chose an unfortunate way to express himself, since what he actually said implies the obvious falsehood that what words meant in Shakespeare’s time is exactly the same as what those words mean today.

The ensuing discussion draws heavily from Wittgenstein: “Let nobody unfamiliar with (at a minimum) Wittgenstein, Kripke and Dummett bother having this conversation,” a commenter warns, while another points out, in response whether the word “arms” (as in, the right to bear them) means the same thing today as it did in 1791:

On several of the most robust (but still controversial) accounts of meaning, a change in reference necessarily entails a change in meaning. It’s arguably found in Mill; arguably entailed by Frege’s account of sense and reference; arguably entailed by Wittgenstein’s account of meaning as use; and explicitly articulated and defended by Saul Kripke and Hilary Putnam, especially in his essay “The Meaning of ‘Meaning.'” There are certainly countervailing viewpoints, although the view that reference can change without meaning changing is not one that has many adherents.

Further, as United States Court of Appeals Judge (and University of Chicago Law Professor*) Richard Posner demonstrates in his 2012 critique of Scalia’s Reading Law: The Interpretation of Legal Texts (written with Bryan A. Garner), The Incoherence of Antonin Scalia, attempts at “literal,” ahistorical readings of law are not only ideological (despite claims to the contrary); they are intrinsically reactionary:

It is true, as Scalia and Garner say, that statutory text is not inherently liberal or inherently conservative; it can be either, depending on who wrote it. Their premise is correct, but their conclusion does not follow: text as such may be politically neutral, but textualism is conservative.

So words and their changing meanings are the foundation of Scalia’s support for Citizens United; of Bush vs. Gore; of this year’s invalidation of portions of the 1965 Voting Rights Act; of Dick Cheney’s successful concealment of the actions of his Energy Task Force Commission; of the drive to overturn Roe vs. Wade; of the constitutionality of the death penalty and the argument against the legitimacy of the Miranda ruling. And those who, like Tom Wolfe, lament philosophy’s postwar detour away from morals and virtues into matters of language and meaning can, today, be reassured that these divergent roads converge: it turns out that parsing language leads right back to the gravest, most relevant questions of justice and truth; good and evil. Wolfe loses the round to Wittgenstein, with Scalia landing the TKO.

*Like another contemporaneous political figure.