Amy Coney Barrett Can’t Read
“Through a new technique, using deliberate anachronisms and false attributions, Menard (perhaps without trying to) has enriched the static, fledgling art of reading. Infinite in its possibilities, this technique prompts us to reread the Odyssey as if it came after the Aeneid and Madame Henri Bachelier’s book The Centaur’s Garden as if it were written by Madame Henri Bachelier. The technique fills the mildest of books with adventure. To attribute The Imitation of Christ to Louis Ferdinand Céline or to James Joyce — would this not be a satisfactory renewal of its subtle spiritual lessons?” (Jorge Luis Borges)
In his fantastical short story, “Pierre Menard, Author of Don Quixote” (1962) the Argentinian writer Jorge Luis Borges offers a wonderful, early meditation on the act of reading literature. In the story, the French writer Pierre Menard sets out to write Don Quixote — NOT another Quixote but the same Quixote. In the end, Borges suggests that the reader brings a lot to the text and that the time and place of the reader will make a difference on what the text says to the reader. Reading, in other words, is not simply a matter of decoding the symbols on the page.
Somewhat more recently, Supreme Court nominee Amy Coney Barrett has said that she thinks judges should interpret both the Constitution and laws “as they are written,” not as judges wish them to be written. And, to be fair, this talking point has been consistently maintained by the political right in the US, including Justices Antonin Scalia, Clarence Thomas, Neil Gorsuch, and Samuel Alito. And, to be fair, that argument is a wagon-sized load of ideological horse droppings.
As someone with a background in literature and literary theory, I can some with some confidence that one cannot “simply read,” or “read as the author intended,” or “read without any preconceived notions.” True, some theorists take issue with a reader-response theory or a postmodern approach to literature. Nevertheless, it has become a fairly widely held belief — in one form or another — of a contemporary understanding of the nature of reading. Reading is not a simple one-to-one correspondence between symbols on a page and “meaning.”
This understanding of reading and interpretation is now made in a variety of fields, including literature, religion, and the law.
In literature, several important fields of theory have addressed the idea of meaning and interpretation. While New Criticism focused on the author and the form of the work, reader response focused on the interaction between text and reader. Proponents of reader-response, such as Stanley Fish, argue that the meaning of a text is produced in the act of reading. Even so, Fish grants that the reader he intends is a reader who would have the abilities and experience to adequately read the text — a case which should apply to Constitutional scholars.
Furthermore, reading is not a simple matter of trying to discern what the author intended. As such, appeals to the “authority” of the author are put in doubt: can we ever really get into the mind of the author from hundreds of years ago? Could the author misremember her own intentions? Could the author deliberately mislead readers about his meaning? The so-called “intentional fallacy” (relying on the intention of the author) is misguided, at best. Mendacity, at worst.
In a five-part series on understanding the Bible, Mark Reynolds, a minister at a First United Methodist Church in Florida, addresses the question of the interpretation of Biblical texts. Rather than treat the Bible (and by extension, any holy text) as a static, fixed set of symbols, Pastor Mark writes: “The meaning of a text is not objective and self-evident, as if any well-intentioned reader could easily discover the ‘right meaning.’” No, instead, Reynolds argues, in keeping with both the philosophy of reading and literary theory, that the meaning of the text resides within the reader, that meaning is created in the reader’s responses to the text. Furthermore, he notes that every single reader can only ever have a limited perspective of the world, and so any individual reader’s response to the sacred text will be shaped — and limited — by that reader’s own set of experiences.
So, to Barrett and the law. The debate lingers in the legal community. The late Justice Scalia co-wrote a book on the matter (I am not providing a link to the book). According to the book, the textualist argument holds that the jurist should look for the meaning in the text itself. An interpretationist approach looks for context, for historical and political change. It acknowledges that the reader brings something to the text. As you might guess, Scalia held the former view. As does, it would seem, Barrett. But as Fish showed us, a focus on the text itself is always insufficient. A focus on the intent of the author (here called an intentionalist approach) will never suffice.
The reader of the Constitution always brings her own history, her own perspectives, her own values to the text. Her reading of the Constitution cannot not be shaped outside of herself. In the end, the retreat into textualism or intentionalism is another form of judicial activism and a denial of personal responsibility. This strategy constitutes a way to frame the argument without acknowledging the extent to which she is reading the law as she wishes it to be. She can not do otherwise.
Can we please start calling out these conservative politicians and conservative judges who want to hide behind some idea of an “objective” reading of the law? It does not work that way. Letting the claim go unchecked perpetuates the myth. Further, failure to call it for what it is — conservative judicial activism — pushes our legal precedence further and further to the right.
Ritch Calvin is an Associate Professor of Women’s, Gender, and Sexuality Studies at SUNY Stony Brook. He is the author of Feminist Epistemology and Feminist Science Fiction and editor of a collection of essays on Gilmore Girls.