Booher's pragmatics

Huh. I drafted this post a year and a half ago, but just noticed yesterday that it was never "published." I suspect that I meant to get back to it and write more about how Prakash's arguments fail, but what I did write is free-standing enough that it might be of interest to jurisprudes.

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[DRAFTED 8/2007]

The ongoing "debate" at Balkinization reminds me to briefly highlight a nice article I read recently, Troy Booher's "Putting Meaning in its Place: Originalism and the Philosophy of Language." It's essentially a demolition of Dworkin's claim to originalist bona fides, but as I never saw Dworkin's appropriation of the term as anything but a rhetorical flourish, I'm more concerned with the methods of the paper than with its conclusions.

The interesting part, I thought, was Booher's call for more attention to the pragmatics (vs. semantics) of constitutional interpretation. A number of theorists seem to be (implicitly or explicitly) relying on a philosophical toolkit that was designed precisely to abstract away from particular utterances in order to make sense of freestanding sentences. But the Constitution as a text is one particular "utterance"; and even if we decide that what matters is not its enactment at a particular time but its continuous reaffirmation, we're still in the realm of sentence (or clause, or Article, or Constitution) tokens rather than types. Booher, of course, sees this reformulation as merely clarifying what good originalists ought to be after when they delve into history: not merely semantic possibilities but pragmatic context, too. And exactly what sort of context is relevant depends on one's theory of what sorts of pragmatic moves are legitimate.

At first glance this just seems a fancy way of restating the obvious. Isn't this what Amar's intratextualism is all about, or Balkin's search for original principles, or Barnett's public meaning, or any approach that seeks to supplement "plain meaning" with historical inquiry? Well, yes. But Booher's way of framing the problem helps make clear just what's going on: we are using certain principles of inference--of how one ought to make sense of utterances in particular situations--to refine or go beyond "what was said". And we use the principles we do ... well, why?

This is where I think Booher's terminology shift helps: Pragmatic inference is, well, pragmatic. By looking at standard examples, we see that the rules depend on the *point* of the communicative situation. And once that is clear, we come back to my old hobbyhorse: why would we think the pragmatics of the constitutional situation would resemble, e.g., the statutory one? The latter are by no means uncontroversial, but it seems that arguments about them proceed in the way one would expect: by testing candidate principles against the authority relations established by the (conceptually prior) Constitution and showing that the principles make sense in that context. Debates about constitutional pragmatics, however, can't do this. If they appeal to structures of authority, they must do so either by resort to straight-up normative theory or by a more hermeneutic interpretation of "our practices." Sai Prakash's attempt to show that opposing originalism means being "against constitutionalism" (since only originalism can stay true to the idea, supposedly central to constitutionalism, of being bound by the past) is a nice example of how easy it is for the two strategies to blur; I'm not entirely clear which he's trying to use, frankly.

Trying to decide if they should / leave the things that keep them crying

A friend was asking me awhile back about the phenomenology of depression. She had difficulty understanding what it could be like, e.g., to feel so hopeless about one's existence that fleeing from consciousness (through sleep or psychotropics) seems the only feasible path, despite full awareness of how it only makes the next day worse. It's not something easily explained; the best I could do, really, was point her to this article in Rolling Stone about David Foster Wallace's struggle with depression and Wallace's own story "The Depressed Person."

It took me awhile to understand my own reactions to that story. When I first read it, years ago, I hated it--it inspired a rage in me usually reserved for news of contemporary politics or people being wrong on the Internet. A little too close to home, clearly; I couldn't distance myself enough to appreciate it. I didn't read it again until recently, when I heard Wallace had hanged himself; the news put the story in a rather different light.

Reading it a second time was still painful; I had to put it aside more than once. But what makes it so hard to read is precisely what makes it brilliant, at least in my mind: reading the story makes you hate the pseudonarrator as much as she hates herself, for the same reasons she hates herself. And as you come to despise her in just the way she feels she deserves, her pathetic and contemptible behavior becomes understandable--without thereby becoming any less contemptible.

Wallace explains her suffering by making the reader part of it--by making the reader simultaneously despise the depressed person, understand her to share that loathing, and yet hate her still more for inflicting her self-obsessed bathos on others (a hatred which she, of course, also shares): an unending spiral of contempt and self-aware, self-destructive action. It's a really neat trick.

Of course, this could simply be my own idiosyncratic reaction. I don't think of myself as a particularly sophisticated reader, and I've never taken any classes in literary interpretation. But it works for me, and it makes me appreciate the story quite a bit. Wallace certainly captures the tragic reflexivity of depression, the way it feeds off of self-awareness and the need to see oneself as a responsible agent, more vividly than my own bloodless philosophical musings are able to.

Dead, fat, or rich: nobody's left to bitch / about the goings-on in self-destructive zones

I'm back! To celebrate the occasion in an appropriately symbolic way, I present: sloths!