Hermeneutics and The Court

On October 28th, Nature ran an article titled “US Supreme Court Poised to Ban Affirmative Action in University Admissions”, giving background to two upcoming Affirmative Action cases with notes of concern. At the end of the article, panic was apparent:

“This is one of the biggest cases to come before the heavily conservative court since it overturned decades of precedent by reversing Roe v. Wade, which had protected the right to an abortion. Having seen the outcome in that situation, many experts think that affirmative action in university admissions will come to a swift end. The right-leaning justices seem willing to overrule established precedent, says Kimberly West-Faulcon, a legal specialist at Loyola Law School in Los Angeles, California.”

It would be easy to be snarky, pointing out Nature’s newfound conservatism. It would also be easy, having been conditioned by a leftist hegemony, to believe that this decision will a) not happen and b) even if it did, many universities would ignore the Court. I am optimistic about this, and will be fully convinced of a political realignment should SCOTUS strike down Affirmative Action. Most on the right are not as optimistic as me, however. Let us say, for the sake of the argument, that universities defy SCOTUS, and are able to defy SCOTUS for a prolonged period of time (which is a very different thing, and does not happen). Even should this occur, it would not change the significance of the decision. Before we get to that, we need to take a slight detour in hermeneutics.

Hermeneutics is the study of interpretation. For over a thousand years, hermeneutics was situated with a specifically Christian context, referring to how Scripture ought to be interpreted. There were two main interpretative schools, the Alexandrian and the Antiochian. Despite the geographical names, these schools were not confined to their respective cities, although they had strong metropolitan heritages. Alexandrians had more allegorical readings of Scripture, whereas Antiochians had more literal and moral readings of Scripture. As East and West grew apart, the East looked to the Cappadocian Fathers as interpretive models, while the West looked to Saint Augustine. With the Protestant Reformation, hermeneutic schools proliferated with the loss of a central interpretative institution. During the era of Romanticism, something new happened. For the first time, hermeneutics was as much a literary and legal endeavor as it was a religious one. How poetry was to be read, what a novel was about, was thrown into question. By the time of the 20th century, major philosophers like Martin Heidegger, Hans-Georg Gadamer, and Jacque Derrida developed their own schools of hermeneutics.

Gadamer’s hermeneutic thought will highlight the importance of SCOTUS banning Affirmative Action. We never read a text, Gadamer argues, in a vacuum. Before each text, we come with questions, concerns, and prejudices. By “prejudices”, Gadamer means “pre-judgment”, which is the literal meaning of the word, and the moral evaluation of a prejudice is dependent on that specific prejudice. It is a prejudice of mine, for example, that I ought to understand any idea that I may attack. When we read a text, we cannot filter out our questions, concerns, and prejudices. If you think you can, try and look around you and find something that is not already interpreted by you. At the moment, I see my bookshelf, clock, rug, and printer. I know what these things are because I live in a culture where these are common objects. My rug, in a different part of the world, or for someone who has nowhere to sleep, might be interpreted as a bed, for example. The printer, if sent back in time three-hundred years, would have no meaning to the men of 1722. Further, these objects are not “neutral”. I see my bookshelf as good, my rug as nice, and both the printer and clock as helpful. While I might think I am seeing these objects “just how they are”, I am identifying what they are through my cultural familiarity with them, and I am placing moral judgements upon them so fast that I do not even recognize I am doing it. That I am interpreting my office is not a bad thing, I am not forcing unwarranted meaning onto them, because there is such a thing as a good interpretation.

When it comes to a text, we read a text for a reason. We pick up something to read because we think there is some value in that text, and we think there is some value in that text because we think it might address a question or concern of ours. Our reading is changed by what we bring to it. If I were to read the Education of Henry Adams with a concern for foreign policy, I would read it differently than if I were to read The Education with a concern for Henry Adams’ religious development. The Education does not change because of my reading, the ink on the pages stays the same, but what those words mean to me does change. Let me stop here and address a worry many of you just had. I am not saying that the meaning of a text is a pliable thing that can be bent into any configuration. There is, to repeat, such a thing as a good reading, and, conversely, there is such a thing as a bad reading. What Adams said about Russia’s growing power in the 19th century, and their future expansionistic prospects, has more weight to someone reading The Education after the rise and fall of the Soviet Union and currently watching the war in Ukraine. Does this mean The Education is changed? No, the words on the page are the same. Yet, looking at what The Education says about foreign policy, if I come to the text with a concern for Russian expansion, it will change the way I read the text. A good reading is a reading in which the reader and the text enter into conversation with one another, where meaning arises because of the interaction between the specific reader and the specific text, and where both the integrity of the reader and the text are respected. I cannot twist the words of The Education without doing violence to it.

To avoid doing violence to a text, we need to “merge horizons” says Gadamer. Our horizon is the expanse of our historical and cultural understanding, it is the space in which we think. Being an American living in the 21st century, my horizon will be different than a German living in the 20th century, and even more different than a Japanese man living in the 19th. Horizons are not fixed things, however, as they can expand. With time I can become acquainted with other times and cultures, with other traditions. When these other horizons become familiar enough for me to work in, a merging of horizons have happened. Doing this is tricky, as other horizons are, well, other. What needs to be done is to identify something in common between the two horizons, and use this commonality as a bridge. Gadamer makes his case for tradition here, as a broad tradition, like the Western Canon, allows many different cultures and time periods to connect with each other. Westerners in the 11th and the 21st, in the New World and the Old, all understand Socrates, Plato, and Aristotle to be their inheritance. There is not set way of merging horizons, as the horizons in question are always different. To appropriately merge horizons takes prudence, it takes practical wisdom, and this can only be gained through habit. The rules of hockey, for example, does not tell a player when to shoot. Only through repeated practice, through habituation, does the player become able to see when he should shoot. So it is with merging horizons, the experienced interpreter will, through practice, through habituation, be able to find a common bridge that allows him to “get into” the other’s horizon, and in so doing, will avoid doing violence to the text. To be clear, the interpreter does not become the other, but enters into the other’s horizon as a guest, someone who is able to see the other but is not the other, and being the guest he respects the house he is welcomed into.

Courts are tasked with interpreting The Constitution, and the United States Supreme Court is tasked with issuing an interpretation on behalf of the country. Since The Constitution is a text, and SCOTUS is interpreting a text, the same rules apply to interpretation as does the interpretation of a poem or a novel. What SCOTUS rules is more important than the enforcement of that ruling, because it is the country’s interpretation of its constitution. To look at Affirmative Action and declare it unconstitutional because it discriminates against Whites and Asians means that the Justices bring a concern for White and Asian well-being to The Constitution. Why? Because all interpretations, as we learned from Gadamer, are the result of the interaction between the reader’s concerns, questions and prejudices, and the text being read. To even consider if Affirmative Action is unfair to Whites, means that the question of justice to an interest group called “Whites” is a question, and a question on the mind of America. Not just in this instance, mind you, but the very United States Constitution is being looked at with concern for White well-being. Does The Constitution ever mention “Whites”? No, but this is not an issue. Law, like Scripture, is not read only for edification, but for application. Law is always applied, and when it stops being applied it stops becoming law. The Constitution must be applied for it to be law, and it must be applied to Affirmative Action. Application of either Scripture or law is always application in this or that specific situation, as application is brought on by an event prompting the guidance of Scripture or law. We are then, by the nature of law, asked to look at The Constitution in relation to Affirmative Action, and should we be concerned with doing justice to a group called “Whites”, then we are going to interpret Constitutional law in light of that group.

There is a question of whether to not banning Affirmative Action because of its harm to Whites is respecting The Constitution’s horizon, but this is another matter. What I am interested in here is the significance of the potential decision. Should this decision be made, it would mean:

  1. “White” denotes a legal category to which people can belong to
  2. This legal category is capable of being treated justly and unjustly (it is not a mere census identifier)
  3. The Constitution has something to say about just treatment of this legal category
  4. America is concerned with treating this legal category with justice

So, while some might be pessimistic about the decision happening, it being enforced, or to use the favorite throw-away of my proverbial enemies, “it is the elites giving some ground to appease us, to return to Fresh-Prince”, the very decision, should it occur, independent of its enforcement, is incredibly important end is tantamount to a paradigm shift.

2 Comments Add yours

  1. stallard0 says:

    The Reformation, being precented by the humanist movement, actually focussed interpretation on a close, historical, and literal reading of the text that admitted only a single sense, in reaction to medieval hermeneutics that used such devices as the quadriga, analyzing the text through several lenses, and more subjective readings, as with e.g. lectio divina, in which often a personal application of a text was sought. I don’t think it’s controversial to say that the contemporary conservative legal hermeneutics (originalism, textualism) are essentially flavors of the Protestant historical-grammatical method.

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