by Caleb Stegall
Editor’s Note: The following lecture was delivered in May of 2018 at the Russell Kirk Center as the keynote address at the annual conference of the Society for Law & Culture.
Thank you all for being here. It’s an honor and privilege to be with you.
… last year’s words belong to last year’s language
And next year’s words await another voice.…
We cannot revive old factions
We cannot restore old policies
Or follow an antique drum.
These men, and those who opposed them
And those whom they opposed
Accept the constitution of silence
And are folded in a single party.…
We have taken …
What they had to leave us—a symbol:
A symbol perfected in death.
And all shall be well and
All manner of thing shall be well
By the purification of the motive
In the ground of our beseeching.
… And any action
Is a step to the block, to the fire, down the sea’s throat
Or to an illegible stone …
These words come near the end of T. S. Eliot’s work of poetic genius, Four Quartets, arguably the greatest poem ever composed in the English language. Four Quartets is Eliot’s profound, haunting, beautiful meditation on the mysteries of meaning across time; of the part the dead play with the living; and of the poet’s role in mediating both. What do “last year’s words” mean across the ages? And what do we, the living, owe the dead? Finally, who does the poet think he is, presuming to give an answer to these unanswerable mysteries? These questions were the subject of Eliot’s unrivalled moral imagination.
And for anyone familiar with the law, with theories of interpretation, with the finer distinctions theorists draw between different modes and methods of constitutional jurisprudence, these questions will sound with a familiarity that is immediate, instinctual. For those charged with embodying these questions in real-world decision making—that is, judges, especially judges on courts of last resort such as my own, we who are entrusted with the fearsome power of unreviewable judicial review—the questions ought to sound in our ears with a hint of terror.
These are the most foundational questions of constitutional interpretation. What do words in a constitution written hundreds of years ago mean today? What methods should we use to figure out the answer? Do we owe any allegiance or obedience to the intended meaning of men long dead who don’t measure up to our more enlightened understanding of the world? How do we know our answers spring forth objectively from our chosen methods rather than subjectively from our preferred answer? Are we smuggling meaning in the back door of manufactured ambiguity, or dragging it kicking and screaming out the front door of the plain text? And even if we are bold enough to ask that final question, how would we even begin to answer it?
You see, it turns out Eliot’s “constitution of silence” manifests as the Deist’s impersonal God; a blind watchmaker, aloof, standoffish, unconcerned, content to have simply wound the gears and watch them spin and unwind. Often, we judges come as a supplicant to the ancient words with the plea “reveal your meaning to us,” only to be confronted again with the implacable, impenetrable, façade of the illegible stone; the symbol perfected in death.
What is the judge to do when he knows that any action he may take is a step to the block, to the fire, down the sea’s throat? And yet, she must decide. There is no way out. Though few will likely admit it, I sometimes wonder if many judges do not send off their pronouncements of constitutional meaning with a murmured, self-dealing promise, “all shall be well, all manner of things shall be well, by the purification of our motive in the ground of our beseeching.”
At this stage, some may reasonably object, no matter how great this poem is, it is still just a poem. It isn’t a constitutional treatise, and to purport to find in it a brief for one’s preferred constitutional jurisprudence is as absurd as it is foolish. That’s true. I am not going to suggest we can derive any particular interpretive methodology from Eliot’s poem. In that sense, perhaps there isn’t a lot Eliot can teach us about Constitutional Law. But as we are at a gathering that has staked a claim to taking seriously the role of the moral imagination—even of poetry—in the law, I will suggest that Eliot’s moral imagination brilliantly, presciently, informs his understanding of the role of the poet, the figure in Eliot’s world who is charged with interpreting the past in the present for the future. In this calling, Eliot’s poet is close kin to the constitutional jurist in the American system of law. So while Eliot may not be able to teach us much about Constitutional Law, he has a great deal to teach about the ideal character of the interpreter—that is, about the necessary moral imagination of the constitutional jurist.
To pursue this line of inquiry, I need to shift gears away from Eliot and take us on a short tour though the history and difficulties of constitutional interpretation generally. Beginning perhaps in the early twentieth century with the advent of legal pragmatism, leading jurists and legal scholars began to take it as an article of faith that the meaning of constitutional language would change over time. It has to, by this way of thinking, in order to accommodate developments in technology, newly enlightened ideals informing a more just and fair society, and the general march of progress. This “living constitution,” as it came to be called, more or less ruled the roost for the better part of the twentieth century.
Here’s how my own court—the Kansas Supreme Court—put it, in decisions ranging from 1918 to 1947: “the constitution must be given flexibility so that it may vibrate in tune with the vicissitudes of time.…” “Our constitution should march abreast of the times and the constitutional text must yield to the pressure of changed social conditions, more enlightened ideals, advanced business organizations and the general march of progress.” And, “constitutions march, aided by judicial interpretation.”
The legitimacy of rule by a living constitution was buttressed by the rise and practice of the second methodological pillar of the pragmatists—judicial restraint. That is, the practice of judges deferring to the decisions of the political branches. This marriage between restraint and a free-form interpretive method was a happy one so long as the constitutional text generally evolved to get out of the way of majoritarian wishes which were manifest primarily in the growing centralized administrative state of the New Deal.
But the enticing possibilities of a flexible, living text eventually overwhelmed the brake of judicial restraint as the work of courts began to move into the realm of social and criminal regulation. When courts began wielding the living constitution to strike down democratically approved measures, a crisis of legitimacy was born to the now failing marriage between the living text and the restrained judge.
At the middle of this crisis was an academic and judge named Robert Bork. By 1970, Bork was one of the nation’s foremost apostles of judicial restraint. It was at about that time that Bork began writing articles attacking the living constitution as a betrayal of judicial restraint. To remedy this, Bork and others began to resurrect the old idea that the meaning of constitutional text cannot change. Whatever it means, that meaning must be fixed at the time of adoption. Otherwise, it really can’t be said to be law. A simple yet powerful idea, summed up by professor Larry Solum: “The Constitution should constrain judges—it is not a blank check.”
With these old principles firmly in hand, these jurists and scholars pioneered a methodology for determining that meaning which came to be called “original intent originalism”—that is, whatever meaning the drafters of the text intended is the binding meaning for all time. Is, in fact, the law.
With the ascension of originalist William Rehnquist to the Supreme Court in 1972 and the appointment of Ed Meese as Attorney General in 1981—who was expressly committed to finding and appointing originalist judges—original intent originalism had rapidly burst upon the national stage.
With that prominence came the critics. Original intent originalism was methodologically impossible—whose intent matters? And short of a psychic connection, how can anyone know a long dead person’s subjective intent? Moreover, original intent originalism was at best a Rorschach test inviting the interpreter to substitute his own preferences for the subjective intent of the drafter, and at worst it was obscurantist cover meant to disguise naked political decisions as constitutionally mandated outcomes. Finally, the critics howled, even if one could objectively determine original intent in good faith, why should we the living be ruled by the dead hand of the past?
By the late 1980s, Justice Antonin Scalia was originalism’s rising star, especially after the spectacular fall of original-intent godfather Robert Bork at the hands of Ted Kennedy in the summer of 1987. A year later, Justice Scalia stepped to the podium at the University of Cincinnati to deliver its annual Taft Lecture and buried Bork for good. In that lecture, Scalia is widely credited with saving originalism from its critics by rejecting outright Bork’s original intent originalism. While Scalia agreed with the underlying principle of a fixed and binding constitutional meaning as a constraint on judicial decision making, he agreed with Bork’s critics—original intent was a poor way to determine that meaning.
Instead, Scalia proposed a methodology that has come to dominate modern originalist jurisprudence—original public meaning originalism. Put simply, Scalia proposed that the intent of the drafters is irrelevant. What matters is the text, the whole text, and nothing but the text. And to know the meaning of the text one has to discern the ordinary, common understanding the public would have had of the text at the time it was adopted. Rather than consulting psychics and personal diaries, judges ought to be consulting historians and dictionaries.
It would be hard to understate the impact of this shift from original intent to original public meaning. It’s not an exaggeration to say that Scalia saved originalist jurisprudence for a generation. The public meaning methodology promised, and often delivered, an objective framework that avoided all of the subjective pitfalls of Bork’s originalist methods. Critics were largely stymied, having been outflanked by the brilliant jurist. As Justice Elena Kagan would later say, admiringly, “We are all originalists now.”
But there was one criticism that retained its potency—the dead hand. In fact, given that the dead hand sometimes seemed to be the only weapon left to living constitutionalists, it was sharpened and honed to a fine edge. Indeed, the moral force of the dead hand argument has proved to be its most availing characteristic—originalists can forcefully be put on the immediate defensive by invoking the reprehensible views and practices of the society which actually produced most of our constitutional texts. Especially in the realm of race-relations, the moral authority of the allegedly non-originalist Supreme Court that desegregated schools and outlawed prohibitions on interracial marriages is virtually unassailable.
Thus, whether those decisions are tenable as original public meaning decisions remains one of the most hotly contested questions in jurisprudential circles. If originalism can be shown impotent in the face of morally repugnant, evil policies, it will stand discredited—assigned to history’s proverbial dust-bin. The maneuver is simple. If the dead hand produced untenable results, we have no obligation to obey, and judges have an affirmative obligation to invoke underlying constitutional principles in order to “save” the constitutional text from itself.
This dead hand challenge to the legitimacy of the original meaning of the constitutional text has a long and powerful pedigree. Theodore Roosevelt invoked a Christ-like authority for lawbreaking on a cosmic scale when he intoned that “the Constitution was made for the people, not the people for the Constitution.” Current Supreme Court Justice Stephen Breyer routinely warns against “adopting an overly rigid method of interpreting the Constitution—placing weight upon eighteenth-century details to the point at which it becomes difficult for a twenty-first-century court to apply the document’s underlying values.” Moreover, “[t]extualist and originalist doctrines may themselves produce seriously harmful consequences—outweighing whatever risks of subjectivity or uncertainty are inherent in other approaches.”
The early critic Paul Brest breezily asserted that, “we did not adopt the Constitution, and those that did are dead.” Prominent critic David Strauss bluntly says:
“[A]n unchanging constitution would fit our society very badly. Either it would be ignored or, worse, it would be a hindrance, a relic that would keep us from making progress and prevent our society from working in the way it should.… [O]riginalists have yet to come to grips with the most obvious and famous issue, one raised by Thomas Jefferson, among others. The world belongs to the living, Jefferson said. Why should we be required to follow decisions made hundreds of years ago by people who are no longer alive? Originalists—who believe that the understandings of people long dead should govern, in principle, every aspect of constitutional law—have not given Jefferson a satisfactory answer.”
Perhaps the most extreme response to the dead hand problem is just to admit that the Constitution is not actually law. Professor Louis Michael Seidman does exactly that in his book On Constitutional Disobedience:
“The test for constitutional obligation arises when one thinks that, all-things-considered, the right thing to do is X, but the Constitution tells us to do non-X. It is only in this situation that constitutional obligation really has bite.… But who in their right mind would do this? If we are convinced after taking everything into account that one course of action is right, why should we take another course of action just because of words written down on a piece of paper more than two hundred years ago?”
As it turns out, this is an incredibly difficult question to answer. So we generally don’t try. Instead, as Professor Seidman notes, we
“avoid this distasteful necessity by reading the Constitution so as to support the opinions we already hold.… Or, more precisely, we are asked by each side to believe that its disinterested reading leads to this result, while the other side’s manipulation of the text and history amounts to a cynical, politically motivated effort to distort the Constitution’s true meaning.”
To escape this devolution of constitutional legitimacy, Seidman would simply read the Constitution as a “symbol of national unity” that focuses on “its commands at the most abstract level.” Because “almost no one disagrees” with the goal of forming a more perfect union and “everyone supports liberty and equality in the abstract,” the Constitution could be embraced by all “if we read it as a work of art, designed to evoke a mood or emotion, rather than as a legal document commanding specific outcomes.”
The problem with this approach, of course, is that it radically shifts the locus of “law” to either a raw majoritarianism that is incompatible with the American Republic and its promised rights and protections for the interests of the politically unconnected, dispossessed, and powerless; or to the rule of judicial fiat, which is equally incompatible with that Republic and its promise of democratic rule.
But even Justice Scalia in his Taft lecture (and over the course of his long judicial career) could not give Jefferson a satisfactory answer. He admitted that undiluted, pure originalism “is medicine that seems too strong to swallow.” Thus, Scalia’s originalism was significantly diluted with a spoonful or two of sugary deference to living constitutionalist precedents. “Almost every originalist,” he said, “would adulterate [the original public meaning of the text] with the doctrine of stare decisis.”
But even that wasn’t enough to ward off the specter of the dead hand. Scalia went on:
“But stare decisis alone is not enough to prevent originalism from being what many would consider too bitter a pill. What if some state should enact a new law providing public lashing, or branding of the right hand, as punishment for certain criminal offenses? Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any federal judge—even among the many who consider themselves originalists—would sustain them against an eighth amendment challenge.”
Lest anyone in the audience think he was about to level a withering critique of such judicial cravenness, he abruptly counted himself as among them: “I hasten to confess that in a crunch I may prove a faint-hearted originalist. I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging.”
At the same Taft Lecture nearly two decades later, Professor Randy Barnett wondered aloud: “if so lion-hearted a jurist as [Scalia] shrinks in practice from the implications of a theory he so vociferously defends, is this not pretty strong evidence that originalism itself ought to be rejected as unworkable and ultimately unwise?” Instead, Barnett argued that while originalism remains sound, Scalia simply wasn’t an originalist. In Barnett’s telling, the actual originalist stalwart was the quieter, steadier Justice Clarence Thomas, who Barnett believed had demonstrated he could stick with originalism even “when it pinches.”
Later, Justice Scalia would occasionally summarize his faint-hearted approach to originalism with the joke, often made at Thomas’s expense: “I am an originalist. I am not a nut.” Thus, baiting originalists into revealing their “inner nut” has now become a regular feature of jurisprudential debates and confirmation hearings. Just a few weeks ago Justice Ruth Bader Ginsburg played a version of this game when she apparently became the first Supreme Court Justice in history to ask a question at one of the academic panels hosted at the Supreme Court. Barnett was a panel member and was asked, pointedly, “How would you have decided Loving?” which is of course the landmark decision of the Court in 1968 finding laws barring interracial marriage unconstitutional.
This creative tension between the powerful claims to interpretive authority animating original public meaning jurisprudence and the dynamic moral force of the legitimacy challenge posed by certain forms of the dead hand argument has generated a flowering of intellectual ferment within the originalist camp. New and varied forms of originalism are seemingly everywhere, each with compelling research and top-notch minds behind them. Scalia’s faint-hearted originalism remains the grand-daddy and still king of the originalist hill, but it has many competitors.
Justice Thomas’s (and possibly Justice Gorsuch’s) original public meaning even-when-it-pinches originalism stands ready to claim Scalia’s mantle. Barnett’s judicial-engagement originalism promises to end the originalist dalliance with judicial restraint once and for all time; John McGinnis’s legal turn originalism, or original methods originalism, suggests the original public meaning that matters is not the common public understanding but the technical legal one, thus promising (threatening?) to wrest control of originalism’s jurisprudence away from the hoi polloi and vest it in law professors; Jack Balkin’s framework originalism or “living originalism” offers a synthesis of older competing theories; while Larry Solum’s “surprising originalism” suggests that original public meaning originalism will produce so-called liberal or progressive results just as often as so-called conservative results. And there are others. A cynic might be tempted to remark that there now appears to be an originalism for any desired outcome.
Why have I taken the time to sketch out this elaborate and entangled history? For three reasons. First, to demonstrate the omnipresent twin problems facing every constitutional jurist—the problem of meaning on the one hand and the problem of legitimacy on the other. To put it in terms anyone who ever parented a teenager will immediately recognize, the constitutional jurist must stand always ready to answer the chin-jutting question—how do you know and why should I care?
Second, I wanted to walk through some of the details of these arguments to show that the problems themselves are pregnant with the symbols of living and dead; past and present; movement and stillness. We seem incapable—we are incapable, I suggest—of confronting the dual questions of meaning and legitimacy without the language and mental constructs of time, motion, life, death, stasis.
Third, and finally, I find it vitally important to dispel the myth that originalism is a panacea that can easily solve the dilemmas facing the constitutional interpreter. There is no constitutional Rosetta Stone. It does not exist. I say that as a committed original public meaning jurist. The danger of treating the interpretive problem (translating meaning across time) and the legitimacy problem (reckoning with the debt, if any, the living owe the dead) as problems easily solved by a dictionary or two and a dash of rule-of-law rhetoric is that we tend to ignore or forget the necessary character—the republican virtue, if you will—of the interpreter.
And it is here, I hope you see, where my divergent lines of thought rejoin, and we find ourselves once again in Eliot’s world. While there is likely nothing in Eliot that will help a judge arrive at the correct interpretation of the Fourteenth Amendment, or any other provision of constitutional law, his moral imagination—his poetic insight into the deepest meaning of things—does at least hint at something perhaps as important to the judge.
Eliot limns the outline, the suggested shape, of a particular way of being for those charged with the impossible task of mediating the past through the present for the future. The poet and the judge are, in Eliot’s telling, essentially the same figure. The figure of the eternal present, the only voice remaining to those entombed in the “constitution of silence” who nonetheless must be heard by the living. Eliot understood better than most the weight of the dead hand critique. “Last year’s words belong to last year’s language” and we “cannot follow the beat of an antique drum.”
Eliot’s seminal essay on the individual poet’s relationship to the literary canon—written over twenty years before Four Quartets—“Tradition and the Individual Talent,” from which I have drawn the title of this lecture, uncannily foreshadows not only Four Quartets but also the moody atmosphere so prevalent, sitting fog-like, over most of today’s jurisprudential debates:
“Yet if the only form of tradition, of handing down, consisted in following the ways of the immediate generation before us in a blind or timid adherence … ‘tradition’ should positively be discouraged.… Tradition is a matter of much wider significance. It cannot be inherited, and if you want it you must obtain it by great labour.”
The most important tool for this labor is what Eliot called the “historical sense.” This is the “perception, not only of the pastness of the past, but of its presence; the historical sense compels a man to write not merely with his own generation in his bones, but with a feeling that the whole of … literature … has a simultaneous existence and composes a simultaneous order.” Eliot concludes that the poet who has understood the paradox of his or her relationship with time and tradition, “will not find it preposterous that the past should be altered by the present as much as the present is directed by the past. And the poet who is aware of this will be aware of great difficulties and responsibilities.”
For Eliot, these “difficulties and responsibilities” were at the very heart of the poet’s “intolerable wrestle with words and meanings.” I will make so bold as to appropriate that description for constitutional jurists everywhere. Eliot figured out that words are neither exactly dead nor exactly alive. They are both and neither. They move and they are still. The ancient words long ago fell silent, but they move and sound again through the poet.
But to apprehend
The point of intersection of the timeless
With time, is an occupation for the saint—
No occupation either, but something given
And taken, in a lifetime’s death in love,
Ardour and selflessness and self-surrender.…
Words move, music moves
Only in time; but that which is only living
Can only die. Words, after speech, reach
Into the silence. Only by the form, the pattern,
Can words or music reach
The stillness, as a Chinese jar still
Moves perpetually in its stillness.
Not the stillness of the violin, while the note lasts,
Not that only, but the co-existence,
Or say that the end precedes the beginning,
And the end and the beginning were always there
Before the beginning and after the end.
And all is always now. Words strain,
Crack and sometimes break, under the burden,
Under the tension, slip, slide, perish,
Decay with imprecision, will not stay in place,
Will not stay still.
Any conscientious jurist will, if she is being completely honest with herself, recognize in these words the poet’s agony as her own; the intolerable, time-bending, self-effacing paradox of standing at the intersection of time and the timeless moment. Eliot knew that as a poet (or jurist) comes to this intersection, he is like unto Moses approaching the burning bush—treading holy ground. In order to do so:
… you would have to put off
Sense and notion. You are not here to verify,
Instruct yourself, or inform curiosity
Or carry report. You are here to kneel
Where prayer has been valid. And prayer is more
Than an order of words, the conscious occupation
Of the praying mind, or the sound of the voice praying.
And what the dead had no speech for, when living,
They can tell you, being dead: the communication
Of the dead is tongued with fire beyond the language of the living.
But that, of course, is only half of the job. The poet has to both hear the past and speak the future into existence, and do both simultaneously. In “Tradition and the Individual Talent,” Eliot observed that the greatness of a poet could not be measured by his “personality,” or by having “more to say,” but instead “by being a more finely perfected medium in which special, or very varied, feelings are at liberty to enter into new combinations.” Or again, “the poet has, not a ‘personality’ to express, but a particular medium, which is only a medium and not a personality, in which” the “impressions and experiences” of what Eliot would call in the Four Quartets “time present and time past” would “combine in peculiar and unexpected ways.”
For Eliot, becoming this extraordinarily sensitive conduit was the calling and mission of the poet. But he knew the effort was beset with continuing difficulties, draped as it always was with words and more words, ineffective, blunt instruments; imprecise, weak vessels.
Trying to use words, and every attempt
Is a wholly new start, and a different kind of failure
Because one has only learnt to get the better of words
For the thing one no longer has to say, or the way in which
One is no longer disposed to say it. And so each venture
Is a new beginning, a raid on the inarticulate
With shabby equipment always deteriorating
In the general mess of imprecision of feeling,
Undisciplined squads of emotion.…
There is only the fight to recover what has been lost
And found and lost again and again
And again, the conscientious jurist must admit to a certain familiarity with this experience. Even if one feels that one has faithfully interpreted the past, effectively giving it a living voice in the present is always a “raid on the inarticulate with shabby equipment always deteriorating.”
In “Tradition and the Individual Talent” Eliot had observed that:
“the difference between the present and the past is that the conscious present is an awareness of the past in a way and to an extent which the past’s awareness of itself cannot show. Someone said: ‘The dead writers are remote from us because we know so much more than they did.’ Precisely, and they are that which we know.”
They are that which we know. This is neither the betrayal invited by the dead hand critique nor the acquiescence such a critique rightly fears, but rather an act of loving fidelity to a past that is dead, yes; was imperfect, yes; but lives again, is drawn into the present, becoming part of the whole, made more perfect, a past altered by the present as much as a present that is directed by the past.
So this “is where we start,” says Eliot:
With the drawing of this Love and the voice of this
We shall not cease from exploration
And the end of all our exploring
Will be to arrive where we started
And know the place for the first time.
Through the unknown, remembered gate
When the last of earth left to discover
Is that which was the beginning;
At the source of the longest river
The voice of the hidden waterfall …
Not known, because not looked for
But heard, half-heard, in the stillness
Between two waves of the sea.
Once again, I make no claim in these remarks that Eliot points us to any particular method of constitutional jurisprudence. Mercifully for us, we are talking here about something wholly different. But it is not unrelated. What makes a good poet according to Eliot is also makes a good constitutional jurist. That is the extent of my claim here. So, in conclusion, I will draw your attention to three specific characteristics of Eliot’s ideal poet that apply equally well to the role of the judge. I have already touched on each of these, drawing them out of Eliot’s work, but I wish to state them clearly and unequivocally.
First, as Eliot wrote in “Tradition and the Individual Talent,” the poet’s artistic career is defined by “a continual self-sacrifice, a continual extinction of personality.” Or as he has it in Four Quartets:
The only wisdom we can hope to acquire
Is the wisdom of humility: humility is endless.
So too, for the jurist.
Second, in the face of such a daunting task, “the bad poet is usually unconscious where he ought to be conscious, and conscious where he ought to be unconscious.” Hence, in Four Quartets:
I said to my soul, be still, and wait without hope
For hope would be hope for the wrong thing; wait without love,
For love would be love of the wrong thing; there is yet faith
But the faith and the love and the hope are all in the waiting.
So too, for the jurist.
And finally, for Eliot, it was only in the poet’s embrace of real limits that his or her true creative force for good could be fully unleashed. Commenting on the regrettable tendency of critics to celebrate only those aspects of a poet’s work “in which he least resembles anyone else,” Eliot observed in “Tradition and the Individual Talent” that “if we approach a poet without this prejudice we shall often find that not only the best, but the most individual parts of his work may be those in which the dead poets, his ancestors, assert their immortality most vigorously.” Or, as Eliot puts it with an almost immeasurable, unbearable grace in Four Quartets:
We die with the dying:
See, they depart, and we go with them.
We are born with the dead:
See, they return, and bring us with them.
So too, the jurist. And so too, our constitutional inheritance.
Caleb Stegall is an Associate Justice on the Kansas Supreme Court.