On Interpretive Conflict

John Frow

• Publisher: University of Chicago Press
• Year: 2019
• Print ISBN: 9780226614007, 9780226613956
• eBook ISBN: 9780226614144
• Topic: Literature
• Subtopic: Law Theory & Practice
• Index: Literature

"Interpretation" is a term that encompasses both the most esoteric and the most fundamental activities of our lives, from analyzing medical images to the million ways we perceive other people's actions. Today, we also leave interpretation to the likes of web cookies, social media algorithms, and automated markets. But as John Frow shows in this thoughtfully argued book, there is much yet to do in clarifying how we understand the social organization of interpretation.
 
On Interpretive Conflict delves into four case studies where sharply different sets of values come into play—gun control, anti-Semitism, the religious force of images, and climate change. In each case, Frow lays out the way these controversies unfold within interpretive regimes that establish what counts as an interpretable object and the protocols of evidence and proof that should govern it. Whether applied to a Shakespeare play or a Supreme Court case, interpretation, he argues, is at once rule-governed and inherently conflictual. Ambitious and provocative, On Interpretive Conflict will attract readers from across the humanities and beyond.
 
 

1

Reading with Guns:

District of Columbia v. Heller

All new laws . . . are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.

«JAMES MADISON1»

I am not so naïve (nor do I think our forebears were) as to be unaware that judges in a real sense “make” law. But they make it as judges make it, which is to say as though they were “finding” it.

«ANTONIN SCALIA2»

If Kafka writes so intensively about the Law it is because the law, bureaucracy, and theology are the intertwined figures of a hierarchical social order built on the necessity and the impossibility of interpretation. My first case study is of an American judgment that sets in play an interpretive conflict that is resolved with the performative construction of a right and the reality it brings into being.3

The case of District of Columbia v. Heller,4 decided by a 5–4 split in June 2008, is remarkable for two reasons: It was the first time that the United States Supreme Court had engaged with the full implications of the Second Amendment to the US Constitution, holding that the amendment articulated the right of private citizens to possess firearms for such purposes as self-defense; and the decision, written by the late Justice Antonin Scalia, was self-consciously and explicitly “originalist,”5 seeking to determine the “original public meaning” of the text of the amendment without regard to the intentions of those who framed and ratified it, using the text itself as the primary evidence for its meaning at the moment of its enunciation, and confining its legal force to that historically delimited meaning. The decision invalidated the District of Columbia’s comprehensive gun-control legislation but left the way open to more restricted laws controlling the possession of firearms in the United States.

The way in which the decision was reached has implications for the practice of textual interpretation more broadly. First, it raises questions about how texts migrate from the past and are incorporated into each successive present. Against the historicism that constitutes the unexamined norm of originalist interpretation (and this includes both the “textualist” originalism of Scalia’s ruling and “contextualist” forms of historical analysis), I argue that texts have no privileged “original meaning” but change their meanings (differently at different levels of determinacy) as they acquire new purposes and uses. Second, I seek to specify the institutional dimensions of the regime of interpretation that effects the translation of past texts into present structures of interest. In the broad sense in which I define it here, the interpretive regime is not just a matter of the rules of a discursive game but is effected by a mix of material, political, and disciplinary infrastructures (the interpretive institution of the Law) that make those rules binding upon a particular interpretive community. Finally, I examine the play of blindness and insight that constitutes, in this case and more generally, the rhetorical condition of possibility for the establishment of a truth which then defines and enacts a reality.

I

The text of the Second Amendment, ratified in December 1791 as one of the ten amendments to the Constitution which make up the Bill of Rights, reads as follows:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.6

This enigmatic document—a “manifestly puzzling text,”7 “perhaps one of the worst drafted” of all of the Constitution’s provisions,8 and syntactically nonsensical unless one disregards its idiosyncratic punctuation9—has given rise to an enormous interpretive literature, most immediately in the clash between Scalia’s majority opinion and the two dissenting opinions written by Justices Stevens and Breyer. These two sides craft diametrically opposed interpretations:

Emphasizing different parts of the historical record, they draw different historical conclusions. They diverge on the significance to be attached to the extant judicial precedent. And they urge different readings of the sparse language of the amendment, the dissent emphasizing and the majority opinion minimizing the significance of the introductory language.10

We should start, then, with the syntax of this single sentence composed of a main clause and an absolute clause that qualifies it. Here the interpretive crux has to do with the politically charged distinction between a “prefatory” and an “operative” clause,11 and with the nature of the qualification: does the initial absolute clause (“A well regulated Militia, being necessary to the security of a free State”) merely explain the right to keep and bear arms (“because a militia is necessary . . .”), or does it limit it (“because and to the extent that a militia is necessary . . .”)? In Scalia’s view, the function of the prefatory clause is to announce a purpose or justification but not to limit the operative clause grammatically;12 although there is a logical link between the two, the operative clause (“the right of the people to keep and bear Arms, shall not be infringed”) is relatively autonomous, and indeed Scalia treats it first and foremost as a self-contained unit before going on to discuss the prefatory clause. Stevens criticizes that reversal of the order of the clauses, with its consequent hierarchical ordering, and he treats the initial clause as a restrictive enunciation of the amendment’s purpose: not to protect civilian uses of firearms, which are nowhere mentioned, but solely to preserve the institution of the militia.13 What is more generally at issue here, however, is the divergent uses made of eighteenth-century conventions of statutory interpretation of prefatory materials. For Scalia, the key text is an English case from 1716 which declares that a preamble cannot restrict the effect of words used in the “purview”;14 Stevens cites the greater weight that Blackstone allows to contextual materials when words are “ambiguous, equivocal, or intricate,” in which case “the proeme, or preamble, is often called in to help the construction of an act of parliament.”15 “In light of the Court’s invocation of Blackstone as ‘the preeminent authority on English law for the founding generation,’” Stevens writes, “its disregard for his guidance on matters of interpretation is striking.”16

A second area of contention concerns the semantics of key terms such as “keep and bear arms,” “well regulated,” “Militia,” and “the people.” For “keep and bear arms” there is solid evidence from linguists and professional historians that the phrase “bear arms” had, at the time, an almost exclusively military meaning. Kozuskanich documents this through statistical analysis of digitally archived documents from the time of the Constitution’s framing,17 and the amicus brief submitted by a group of linguistics professors notes that the term only changes its idiomatic military meaning when additional modifying language (such as “for self-defense”) is attached to it.18 “To bear arms” is the equivalent of arma ferre, and as Wills wryly comments, “one does not bear arms against a rabbit”:19 arma are, etymologically, war equipment, and the word has no singular form. “Keep and bear” is a single phrase, having to do with the rights of a militia: “To keep-and-bear arms was the distinguishing note of the militia’s permanent readiness, as opposed to the army’s duty of taking up and laying down . . . their arms in specific wars. The militia was maintained on a continuing basis, its arsenal kept up, its readiness expressed in the complex process specified by ‘keep-and-bear.’”20

For Scalia, however, that military application of the phrase is only unequivocal when “bear arms” is coupled with “against.” His strategy is to break the phrase into its component parts, which allows him to find that the word “arms” includes weapons that are not used for military purposes (2791),21 that “keeping” arms doesn’t have an exclusively military sense (2792), and that the word “bear” means “carry” and, when used with “arms,” refers to carrying for confrontation and “in no way connotes participation in a structured military organization” (2793). The argument made by the linguistics professors that the military sense of “bear arms” can be modified if a particular purpose expressly qualifies it (such as “for the purpose of killing game”) is summarily dismissed:

That analysis is faulty. A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on linguistics). . . . If “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one cannot simply add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the Mad Hatter. (2795–96)

Stevens’s rejoinder to this, arguing that the purposive phrase changes the meaning from an idiomatic military sense to a literal sense, relies on a notion of the “most natural meaning” of “bear arms” in the absence of a qualifier, a natural meaning that can be confirmed by reference to the preamble. But such a reference is precisely what Scalia discounts by means of the privilege he allows to the “operative” clause: the prefatory reference to the militia is incidental to the right enunciated in the second clause, since that right is not restricted to the narrow purposes of maintaining the state militias.

In order to define the right in this expansive manner, it must be tied to “the people” as a whole, and this whole is then either equated with or exceeds the militia, broadly conceived. Scalia thus contrasts the rights-bearing people, as the entirety of the citizenry, with the subset of able-bodied males within a certain age range which makes up the militia (2791), and he thereby refuses to read the “militia” of the initial clause as synonymous with the “people” of the second. As Amar notes, this makes the link to the preamble textually irrelevant; it is the people, not the militia, who bear the right.22

If we assume that the reference in the prefatory clause to the militia is in some way integral to the amendment’s structure, however, then the question becomes one of the kind of right that is established and the way in which it is related to the importance of a “well regulated Militia.” Scalia reads the amendment as the codification of a common-law right to bear arms for self-defense and as an incorporation and universalization of the separate English statutory right enunciated in the 1689 Declaration of Rights, which allowed “the Subjects which are Protestants” to have arms for their personal defense; the facilitation of the militia is no more than a secondary effect of these personal rights. Scalia’s historical evidence is drawn largely from English constitutional jurisprudence and from anti-Federalist arguments made during the ratification period. It assumes a continuity with “a body of writings absorbed by Americans prior to 1776,” without accounting for the ways in which the revolution transformed popular thinking about the militia.23 The amicus brief submitted by a group of academic historians, by contrast, points to the broader context of debate and to the paucity of contemporaneous references to the private keeping of firearms: the fact that the modern controversy over the Second Amendment “has been forced to squeeze so much modern interpretive blood from so few evidentiary turnips . . . is itself an indicator of how minor a question this was at the time.”24 This is to say, rather than either a personal or a collective right, the Second Amendment articulates a civic right, which is closely tied to a duty of military service. Saul Cornell recalls that the amendment

was drafted and ratified by a generation of Americans who feared standing armies and had witnessed a systematic policy to disarm their militias. With these concerns in mind, America’s first constitutions explicitly protected the right of citizens to keep and bear those arms necessary to meet their militia obligation.25

That civic right is complicated, however, by the struggles between Federalists and proponents of states’ rights that came to dominate debates over the framing and ratification of the Bill of Rights. Specifically, at issue was whether power over the militia would be centralized in Congress or whether the amendment would leave a residual military power with the states, which could be used as a check on federal power.

Here the question of the drafting history becomes crucial. Scalia gives it short shrift: investigating the history aims to establish legislative intent, but intent is neither unitary nor, in most cases, able to be objectively reconstructed. Since there is rarely any awareness on the part of legislators that a particular wording is likely to give rise to problems of interpretation, for nearly all “issues of construction” there is, effectively, no “intent.”26 For Stevens and for the academic historians, however, examination of the drafting history gives a clear indication of the relevant purpose of the amendment, and that purpose serves to anchor interpretation in its historical context.

At the First Federal Congress in 1789, James Madison was given the task of sorting and assembling proposals from the states for amendments to the Constitution and shepherding them through the drafting process. (He wrote to a correspondent that year of the need to placate the states, which had agreed to ratify the Constitution only on a “tacit compact” of later amendments to do with the militia.)27 His initial formulation of what was to become the Second Amendment read as follows:

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.28

As Stevens points out, this text is striking for its omission of civilian uses of firearms (something that the Virginia Ratifying Convention, for example, had proposed), and Madison’s inclusion of an exemption for conscientious objectors “confirms an intent to describe a duty as well as a right, and...

Table of contents

• Cover
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Introduction: Institutions of Interpretation
• 1  Reading with Guns: District of Columbia v. Heller
• 2  Contract, Custom, and the Multiple Historicities of The Merchant of Venice
• 3  Icon, Iconoclasm, Presence
• 4  Construing Climate Change
• Coda: Interpretation and Judgment
• Index
• Footnotes