Originalism as History and Story-Telling

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2 Responses

  1. A.J. Sutter says:

    Nice post. References to Herrenvolk and such make one also think of Nietzsche, who at times had lucid things to say:

    Now, what purpose is served for contemporary man by the monumental consideration of the past, by busying himself with the classical and rare person of earlier times? He derives from that the fact that the greatness which was once there at all events once was possible and therefore really will be possible once again. He goes along his path more bravely, for now the doubt which falls over him in weaker hours, that he might perhaps be wishing for the impossible, is beaten back from the field. Let us assume that somebody believes it would take no more than a hundred productive men, effective people brought up in a new spirit, to get rid of what has become culturally fashionable in German right now, how must it strengthen him to perceive that the culture of the Renaissance raised itself on the shoulders of such a crowd of a hundred men.


    As long as the soul of historical writing lies in the great driving impulses which a powerful man derives from it, as long as the past must be written about as worthy of imitation, as capable of being imitated, with the possibility of a second occurrence, history is definitely in danger of becoming somewhat altered, reinterpreted into something beautiful, and thus coming close to free poeticizing. Indeed, there are times when one cannot distinguish at all between a monumental past and a mythic fiction, because exactly the same impulses can be derived from one of those worlds as from the other. Thus, if the monumental consideration of the past rules over the other forms of analyzing it, I mean, over the antiquarian and the critical methods, then the past itself suffers harm. Really large parts of it are forgotten, despised, and flow off like an uninterrupted grey flood, and only a few embellished facts raise themselves up above, like islands. Something unnatural and miraculous strikes our vision of the remarkable people who become especially visible, just like the golden hips which the pupils of Pythagoras wished to attribute to their master. Monumental history deceives through its analogies. [“On the Use and Abuse of History for Life,” Sec. 2, Ian Johnston, trans.]

    Maybe it provides a sort of counterweight to Copland-style constitutionalism that both the current German and Japanese constitutions grew out of a determination not to reinterpret the past into something beautiful.

  2. Balkin is acting as an advocate, as lawyers do. He’s engaged in an argument with Posner, Vermeule and their ilk. But his logic or his faith force him to fudge his history to defend his vision of democracy, which allows Vermeule to counter as a hardened realist and blablabla. I find myself more and more envious of Canada and the living tree doctrine, which renders all this irrelevant.

    Our relation to the Constitution is like our relation to Don Giovanni. And every time Peter Sellars has a new production set in Trump Tower or Las Vegas, we set about arguing whether he made the thing fresh or somehow screwed it up. The only difference between the two debates is I suppose the matters of life and death, or justice and tyranny: the baggage of politics. I love baggage; thinking about baggage takes up a good part of my life. But treating politics as baggage, as vulgar, has its advantages. I see no need to waft about in discussions of faith and redemption; fascism is fascism, why pussyfoot around it? Posner and Vermeule defend what lovers of democracy abhor, what else is there to say? They claim to find support for this in the Constitution but Christian kings found support for the Crusades in the Bible. They claim to defend reason. My response is simple. I’ve said it before and I’ll repeat it: “That authoritarianism has become normative may be a scientific fact, but that does not make authoritarianism itself a scientific truth.”

    Balkin is arguing from the past and about the future, but somehow the present is lacking.