In today’s episode of the Telos Press Podcast, David Pan talks with Aryeh Botwinick about his article “Contra Originalism: The Elusive Text” from Telos 195 (Summer 2021). An excerpt of the article appears below. In their conversation, they discussed the doctrine of originalism in constitutional theory, the role of the Bible in Western legal and constitutional history, the relation between originalism and skepticism, Derrida’s weak messianism, the way that Derrida’s skepticism undermines itself through the category of the gift, the relationship of originalism to the paradox of sovereignty, and the reason why Hobbes’s statement that “life is motion” is the only defensible phrase. If your university has an online subscription to Telos, you can read the full article at the Telos Online website. For non-subscribers, learn how your university can begin a subscription to Telos at our library recommendation page. Print copies of Telos 195 are available for purchase in our online store.
Contra Originalism: The Elusive Text
Aryeh Botwinick
In this paper, I will try to show that meaning is fugitively and transiently crystallized and experienced, partially as a result of what Plato called tacit knowledge and what Gadamer viewed as a dialogical relationship to the text provoked by a specific set of historically generated questions that readers bring to bear upon the text. Because constitutions are generally envisioned as having longer life spans than individually formulated laws, the time reversal in which the a posteriori of interpretation determines the a priori of text becomes even more evident in their case than in the more ordinary cases of law. The eternity of constitutions is a function of the human ingenuity and perseverance in acts of interpretation.
It is entirely possible that for Justice Antonin Scalia, who was both a devout Christian religious believer and practitioner and, through the medium of his doctrine of originalism, one of the most influential jurists of his generation, every use of language—every invocation of words—is a quasi-religious event because it unleashes a search for anchorage that harbors the potential of eventuating in the postulation or recognition of God as the ultimate source of justification and legitimation. God constitutes the epitome of truth—the supreme representation of the human good. The counterpart to God as the source of truth in civil law is the text (the Constitution) as understood by the average population of its day. This understanding of the nature of the constitutional text is the source of certainty in the law. The slack that persists between words and things—that words are underdetermined by things; that more than one string of words can capture what to the untutored eye looks like a single configuration of things—requires the postulation of or faith in God in order to rescue the universe from disorder and chaos. One could say that the ultimate metaphysical prop for Justice Scalia’s judicial epistemology is God. In this paper, I would like to argue that from a more rigorous monotheistic perspective, the argument moves in precisely the opposite direction: that the Biblical God of all three Western monotheistic religions needs to be understood in a more rigorously secular way in order to fulfill the mandate of His supremely exalted religious status. If He is infinite and we are finite, then it is contradictory and sacrilegious of us to connect Him with our ordinary human transactions and to make Him the literal counterplayer to our mode of being in the world.
If the rationalist motif in motivating and legitimating the quest for God is acknowledged, then the Biblical monotheistic God is cherished because in His infinity (in contrast to our finite status) He is able to bring the restless, unending search for reasons and causes to a halt. Because He subsists in another dimension from the one in which human beings exist, on methodological grounds we are released from the compulsion to pursue further our investigation into the ultimate grounding of human existence and the causes of specific events that transpire in the world. The idea of the infinite God serves as the conceptual boundary in our search for reasons and causes.
The insurmountable dilemma that follows from this approach is that we have made it impossible for ourselves to succeed. By conceiving of God as infinite, in one sense He can serve as the pinnacle of our explanatory pyramid. But by the same token that infinity takes God out of the human gambit altogether and therefore appropriately situates Him as belonging at the apex of explanatory structures, it also from our rational perspective prevents Him from reconnecting with things human to actually explain them. From a strictly human rational perspective, the category of infinity is transitive in only one direction—moving upward from a search for the ultimate reason or cause that is responsible for the outcome in a particular case to the invocation of infinity (God) as that final factor. For the category of God itself, the Divine explanatory schema is transitive. However, for movement in a downward direction, how God intersects with a particular event or phenomenon in the world, the category of God is intransitive. The rationalist argument represents how and why we need God, but it does not offer us the faintest clue of how the intersection between God and the world (the infinite and the finite) works. If, per impossible, that reconnection could be theorized by us, the explanatory quest would be recommenced and we would have accomplished nothing in our postulation of God. By choosing God as our ultimate explanatory factor, we have stacked the cards against the possibility of explanation altogether.
What the story that I have just told suggests is that the Bible is at least as much a skeptical scripture as it is a religious scripture. The model for understanding human communication that it enshrines is a skeptical model. We cannot imagine a coherent entity that matches our description of God. The gap between word and thing is overwhelming—and not sealable. If what motivates textual fundamentalism is some kind of religious quest (or is annexed to a religious quest), it founders in the same way that religious fundamentalism itself founders by not being able to rationally sustain the idea of God.
So originalism cannot be explicated (or defended) from a religious perspective. How does originalism fare from a skeptical vantage point? I would like to explore two models of skeptical argument—one from Thomas Hobbes in early modernity and the other from Jacques Derrida in late modernity.
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For myself, listening to this podcast and as well as reading all of the other essays of Aryeh Botwinick that have appeared in Telos over the decades has, indeed, been a wonderful gift–especially in a psychological sense.
His insights on the relationship between words and things and the conceptual steps he takes in dissolving important paradoxes come as a phenomenal personal psychological relief.
I can’t think of a better medication for the accelerating polarization we are all experiencing than a grudging renunciation of one’s own yearnings for contact with ultimate reality based on the acceptance of a world forever in flux.