Constitutional Redemption: Narratives, Historical and Fictional
posted by Josh Chafetz
It’s an honor to be here, commenting on Jack’s hugely impressive and erudite work of constitutional scholarship. If you haven’t read it yet, the most useful thing I can say to you is to stop reading what I have to say and go read what he does. I especially admire his discussion of the role of narrative in constitutional argument, and it is that part of the book that I’d like to focus on. I should say at the outset that I don’t have any criticisms—and I may not even have any comments!—to make. Really, what I have are some questions. (And I don’t mean that in the standard, law professor-y “I’m going to make my comments and then add a question mark at the end” sense. I really don’t have answers for these questions.)
Jack lays out his own narrative of constitutional development at pages 18-23. It is a powerful narrative, one that describes American constitutional development as a slow and always-incomplete attempt to redeem the promise of the Declaration of Independence, which Jack understands as embodying an attack on “the social structure of monarchy” (p. 23), or, even more ambitiously, a “demand for social equality” (p. 22). There is a great deal to find appealing in this narrative, and its brevity should not lead us to underestimate its potency (as, I think, Adrian Vermeule did in his review of the book).
Others may wish to comment on the lessons Jack draws from this narrative, or even on its historical accuracy. But that’s not my interest here. Instead, I’m interested in why the narrative’s claim to historical accuracy is important in the first place.
Jack, of course, is a deeply sophisticated thinker, extremely well-versed in the philosophical debates over the nature of the interpretive enterprise. He understands that his narrative is a narrative, not “the” narrative. “[O]f course, I left some things out and emphasized others. I offered my interpretation of the facts, and asked you to agree with my interpretation” (p. 25), he writes. Indeed, for Jack, “[t]elling stories” is “a way of arguing” (p. 17). His story-telling is designed to make the case for his argument about the role of faith and redemption in our constitutional enterprise.
But while acknowledging the inherently and necessarily constructive and interpretive nature of his narrative methodology, Jack also insists on the importance of its factual veracity. He writes:
The story gains persuasive force from its claim to be true. This is part of the ethics of storytelling. If you discover that a story I tell you is not true, or exaggerates, or leaves out important and relevant details, this undermines not only my credibility but also your belief in what the story demonstrates. (p. 27)
This seems right to me—but contingent. After all, I violate the ethics of storytelling only if I tell a falsehood when my audience reasonably expects me to tell the truth. Thus, when Joseph Ellis told his history students that he had combat experience that he in fact lacked, he violated a widely shared understanding of the ethics of storytelling. But when Steven Spielberg tells us all about contact with extraterrestrials, he does not. We expect fiction, perhaps even edifying fiction, from a Spielberg movie, whereas, absent some indication to the contrary, we do not from a history professor, and we do not think some ethical norm has been violated when we get what we expect.
The question, then, cannot be about the ethics of storytelling; it must be about which ethics of storytelling is appropriate. For Jack, our constitutional story must be a history story, and not a fiction story.
[I]t is better to know the truth. Even if the past is not as we imagined it, the commitments compromised, the heroes not so noble, and the villains not so clearly wicked as we have been led to believe, it is worth knowing that, too. It helps us understand what features of the past need to be redeemed in the present, and the complications, far from detracting from the story’s efficacy, often have remarkable salience to our current circumstances. This, too, is part of the ethics of storytelling. When you argue using stories, you must say what you believe is true and what it means to you, and always be open to learning something new about the past. You should never try to hoodwink people with your stories, for if you do, you will only end up hoodwinking yourself. We must never fear discovering that our cherished story is more complicated than we imagined; rather, we must have faith that historical truth is always more edifying than any manufactured tale. (p. 27)
I am deeply sympathetic to this argument—I would have to be, given that my scholarship, more than that of most constitutional scholars, relies on historical narrative and analysis. But I can’t help but wonder if Jack is too quick to dismiss the power of fictitious narratives in constitutional argument.
After all, the noble lie in political argument has a long and distinguished pedigree of defenders. Indeed, Plato, the first theorist of the noble lie, used it as a foundational plank in the constitution of his fictional kallipolis. Now, I think I can anticipate Jack’s reply here: Indeed Plato did use a noble lie for that purpose! And what an ignoble purpose it was; the lie Plato wanted to tell in Book 3 of the Republic was a lie in favor of social stasis, a lie that told every citizen that his position in the polis was determined at birth by natural and unalterable facts. Such a lie is unjust; the truth would have set our kallipolis-dwellers free.
True enough, but must every constitutional fiction be of this character? I am genuinely uncertain. Suppose that tomorrow, a constitutional historian were to discover that George Washington surrendered his command in 1783, not out of any noble ideals or desire to return to private life, but rather because he was blackmailed. What’s more, the same blackmailer (our historian is unable to discover what he had on Washington, but it must have been something juicy) was the one who persuaded Washington not to seek a third presidential term in 1796. Our Cincinnatus is a lie.
Is the polity better off knowing this? This hypothetical “lie” convinced every President up to FDR to call it quits at 8 years (and FDR’s failure to live up to this precedent inspired the Twenty-Second Amendment); it has inspired individuals in every generation since to think deeply and virtuously about the nature of power and its relationship to greatness. What would be the salutary effect of debunking the lie? One possible answer is that it would be a warning against hero-worship (literally idolization, and Jack has many insightful things to say about the dangers of constitutional idolatry in chapter 4) and therefore against accepting political or constitutional arguments for ad hominem reasons. But we already know that George Washington was flawed; the fact that he held other human beings in bondage is no secret.
Would this additional “truth”—the truth that he never voluntarily gave up power, but was blackmailed into it—set us free? Or would it fetter us, taking away a constitutional inspiration, taking away one of our best narrative weapons against the cynics who would have us believe that self-interest is always and everywhere king?
Perhaps the simple answer is not a theoretical but a pragmatic one. Perhaps constitutional fictions could be edifying, but there is simply too great a risk that they will be oppressive, as Plato’s was. Perhaps giving people license to tell constitutional stories freed from any responsibility to historical accuracy is simply giving them too much discretion. On this view, we lash ourselves to the mast of historical accuracy as a second-best solution, because the siren song of truly free constitutional narrative is simply too dangerous.
Or perhaps there is a response at the theoretical level. Maybe we have a good reason to apply the ethic of historical narrative, rather than the ethic of fictitious narrative, to our constitutional stories, perhaps a reason sounding in the nature of and reasons for constitutional legitimacy.
As I said at the outset, I really don’t know. But I’m curious to hear what Jack, my fellow symposium participants, and all of our readers think about it.
August 1, 2011 at 10:17 am
Posted in: Constitutional Law, Constitutional Redemption Symposium, Law and Humanities
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Responses (1)
A.J. Sutter - August 1, 2011 at 11:54 am
Who is to determine when a “constitutional fiction” is justified or not? A Supreme Court Justice who claims to be an “originalist,” but who uses such a fiction when convenient? Not a reassuring prospect. I can’t envision a circumstance now where the truth of falsity of Washington’s biographical details might be important, but that could just be my lack of imagination. If you’ve got the dirt on him, bring it to light.
In general, one shouldn’t be so indulgent about the abuse of narratives in politics. Without such abuse, why else would so many poor, precarious and unemployed people have wound up voting for the party of the rich? (I speak of course of those bygone, carefree days when there was just one.)
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