Thursday, May 20, 2010

Notes from elsewhere. Badly written comments. But I made a point in a way that in retrospect is so obvious that I'm annoyed I hadn't thought of it before. Not the argument but the construction: In the contemporary academy form is considered transparent. This is countered by a minority who think it's entirely opaque. Both are forms of scholastic decadence. I've said this a thousand times. But it means that most academics are "originalists" regarding the reception of their own writings: not that they think they can know the future but in a more limited way that the future will know them, will see them as they see themselves. Dimwitted of me not to realize years ago I could describe it so simply. If historical reactionaries are exceptionalist regarding their abilities as readers, futurist reactionaries are exceptionalist regarding their abilities as writers. So for example, a future Nino Scalia will be correct in his understanding of the "dead" writings of Brian Leiter even if Leiter thinks our own Scalia is wrong in his interpretations of what Leiter -correctly- considers the "living" Constitution. It's obvious thinking of the intentional fallacy. I haven't used the term much since it's too literary and out of fashion, but in fact it's the foundation, now ignored, of the critique of Constitutional originalism. I've saved the whole thread on my page. I'll neaten it up and post it. Once I do that it's not the thread anymore, just my argument. I got to link to this again, which was fun especially given the context.

"nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;" The simple "content" of the sentence is clear to anyone who reads english. Beyond that the focus of the authors was on form: the form of language and the description of formal process in law. The meaning or content of "due process" was left for readers to argue and re-argue in the future. The richness of the Constitution as an example of open form is precisely the richness that academics now widely disregard, out of preference for a pure and vacuous or vulgar instrumental reason that risks meaninglessness for future generations. As I said at the link, an intellectual, in the best sense of the word, is someone who understands the distinction between Immanuel Rath and Joseph von Sternberg. The best way to win an argument is to show your opponent that in situations where he doesn't feel threatened he already operates under the terms you describe. What's good for the goose is good for the gander. Again back to "the irrationalism of others"

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