Charles Fried, "Sonnet LXV and the 'Black Ink' of the Framer's Intention," in Interpreting Law and Literature: A Hermeneutic Reader (Evanston: Northwestern University Press, 1988), p. 45.
Elaine Scarry, On Beauty and Being Just (Princeton: Princeton University Press, 1999), pp. 90-91.
Charles Fried is a former Solicitor General of the United States and a distinguished Professor of Law at Harvard University.
Professor Fried is also a wonderful and accessible writer whose articles and books are worth reading even if you disagree with him on many issues as I do.
Mr. Fried is not only a fine lawyer, but also philosophically adept, often making use of Kantian and Rawlsian insights in his best work. ("John Rawls and Justice.")
I think that Professor Fried should be listed with John Rawls and Robert Nozick, as a philosopher, and with Ronald Dworkin (our best philosopher of law at the moment) and Richard A. Posner, as one of the handful of legal/political thinkers whose work will last and have an impact on future generations of lawyers and scholars.
I am confident that Roberto Mangabeira Unger (a Brazilian scholar teaching at Harvard Law School as I write this essay's first draft) and Michael Perry will also be included on that short list, perhaps Lloyd Weinreb should also be mentioned to say nothing of the Brits H.L.A. Hart and John Finnis as well as Joseph Raz.
Mr. Fried is the person that (I hope) a Republican president would appoint to the Supreme Court.
Professors Charles Ogletree and Lawrence Tribe are among my suggested "possible" Democratic nominees for the next vacancy on the U.S. Supreme Court. I also would not mind Susan Estrich or New York's Mark Greene on the Court so that I could observe the fireworks in future exchanges between either of them and Justice Scalia -- or Neil Gorsuch these days. I suppose Elena Kagan will do after all.
I am delighted that the Honorable Sonia Sotomayor was nominated by President Obama for the U.S. Supreme Court. Every judge brings his or her identity to the task of deciding cases. This is certainly true of Chief Justice John Roberts:
"In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. [Stuart Rabner?] Even more than Scalia, who has embodied judicial conservatism [sic.] during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values of the contemporary Republican party."
Jeffrey Toobin, "No More Mr. Nice Guy: The Supreme Court's Stealth Hard-Liner," in The New Yorker, May 25, 2009, at p. 42. ("Law and Literature" and "Law and Morals.")
Considering that Judge Sotomayor did as well or better at Princeton University (summa cum laude) and Yale Law School (Law Journal) and has more experience on the bench before coming to the Court than all of the other current members of the U.S. Supreme Court, I wonder why Ms. Sotomayor's intellect and writing skills are questioned all of a sudden? Ethnicity, perhaps?
I can relate to the experience of Justice Sotomayor upon being nominated. Suddenly, mysteriously, at crucial moments in life one's writing is deemed to be suspect and one is described as "intellectually inferior" to colleagues who once required our assistance to survive law school courses.
Neil Gorsuch has recently been subjected to similar treatment. ("Is truth dead?")
No wonder New Jersey's legal morons assumed that they were, or are, "smarter" than me.
My ethnicity still makes my intellect, such as it is, unacceptable in the Garden State. Weird. Too independent for you, Stuart? I think so. ("Civility" and "Sybil R. Moses and Conduct Unbecoming to the Judiciary in New Jersey.")
Some "identities" have been excluded from the upper reaches of power in America and they must now be a part of our Constitutional conversation.
The goal should be "balance," both on the court and in terms of the equipoise achieved among values in our Constitutional architecture: "Judging Sonia Sotomayor," (Editorial) The New York Times, Sunday Opinion, May 31, 2009, p. 7. ("It is time to elevate the discussion to where it belongs: the Constitution and the role of the judiciary.")
I have been discussing problems of interpretation in aesthetics and morals, in the exploration of the self and in adjudication. Earlier I commented on Justice Brennan's essay examining the nature of Constitutional hermeneutics. I now wish to place that essay in "dialogue" -- as they say in graduate schools -- with Professor Fried's beautiful article found in the same volume. ("Ronald Dworkin Says 'The Law Works Itself Pure.'")
Mr. Fried is concerned with the possibility of rule-following and "successful" communication both in reading Shakespeare's poetry and in American Constitutional interpretation.
The essay by Professor Fried is a reaction to a decade or more of sometimes heated debate concerning the possibility of law as a process of "neutral" decision-making in America (recall Louis Henkin's confident and oh-so dated talk of "neutral principles"), together with recent allegations that American law can offer no more than token justice.
It certainly seems depressingly futile to expect legal justice today. After Abu Ghraib and Guantanamo "American Law" (in capital letters) has been dismissed as a "sham" masking the reality of oppression. Law was said to be incoherent, there was much public "trashing" (Mark Kelman, Duncan Kennedy) of legal decisions, even a feeling that legal methods were rendered obsolete in a scientific age.
The CLS-style "trashing" from the eighties now seems like a quaint compliment to a generation that views law as all about power, hypocritical, often more honored in the breach than in the observance. Torture is condemned universally, for example, even as it is indulged in, secretly, by most nations following America's lead.
Critical Legal Studies (CLS) pronounced the U.S. legal process to be a "fraud" lacking coherence or legitimacy, reflective of the power structure in society and responsive, primarily, to money.
I write these words after correcting "errors" inserted in one of my essays for (perhaps) the fiftieth time -- "errors" inserted with the cooperation of legal officials willingly participating in a criminal conspiracy to violate civil rights who nevertheless presume to judge my ethics. ("Law and Ethics in the Soprano State.")
Today is one of those days when I am inclined to agree with the cynics. However, it is on such occasions that we must be willing to affirm our faith in law -- as a hope at least -- if not always a reality everywhere.
Despair is an attitude that I fall prey to on occasion.
Despair is lethal to all efforts at reform. I must struggle against despair. It is just too easy to say that it is all bullshit and hopeless. It is also dispiriting and plays into the hands of the cynics and frauds in places like Trenton, New Jersey.
One must fight to persuade judges and politicians to do what they should be willing to do, without persuasion, which is to abide by the Constitution.
I admit that, in New Jersey, we can not expect much from what remains of the legal system.
We must try -- even in the Garden State -- to govern our lives with respect for neutral and just legal principles and rules as well as flexible standards of justice as embodied in the U.S. Constitution.
American legal ethics in the aftermath of the Bush/Cheney years is a grotesque misnomer and an insult to humanity unless the torture controversy is dealt with (openly and freely) not only in a U.S. Senate report but by lawyers in public discussions: Compare Neil A. Lewis, "Official Defends Signing Interrogation Memos," in The New York Times, April 29, 2009, at p. A12 with "State-Secrets Privilege Tamed," (Editorial) in The New York Times, April 30, 2009, at p. A26.
Authorization of "crimes against humanity" by Stuart Rabner-like legal mediocrities (such as Jay S. Bybee, U.S. Circuit Court Judge) is covered-up and excused by invoking the much-abused "State-Secrets" priviledge that allows government to stonewall in order to shield its lies: Scott Shane, "Cheney is Linked to Concealment of C.I.A. Project," in The New York Times, July 12, 2009, at p. A1. (America's former Vice President Cheney may have INSTRUCTED C.I.A. officers to "mislead" -- or "lie" -- to congress and the courts. Did you do the same Mr. Rabner?)
Did Mr. Rabner lie to the U.S. Justice Department concerning my matters? ("Have you no shame Mr. Rabner?")
The disgraceful protected mendacity among judges and organized crime's presence in the judiciary of New Jersey is what American law has often become. Is this New Jersey's legal ethics Mr. Rabner? ("New Jersey's Office of Attorney Ethics" and "New Jersey's 'Ethical' Legal System.")
For a sense of what I believe American law can and should be, once again, see: "Manifesto for the Unfinished American Revolution."
I am afraid that the title to my essay celebrating American freedoms was altered by hackers. I have made the necessary corrections. Much of this public criminality by N.J. persons may be the result of sheer ignorance more than stupidity. Sam Dillon, "Many Nations Passing U.S., In Education, Experts Say," in The New York Times, March 10, 2010, at p. A21. ("Nihilists in Disneyworld.")
"Deconstructionists" and others still question the distinction between high and low culture by finding Bugs Bunny cartoons and Shakespeare's works equally worthy of scholarly attention although (one hopes!) for different reasons. ("America's Nursery School Campus.")
Often these theorists find all texts, including the Constitution, self-contradictory and self-undermining.
"It's all nonsense," they say, in the university cafeteria with a weary sigh. Shaking his head, Mr. Fried responds:
"My work as a scholar and now as a practitioner suggests to me that respect for the rule of law has been somewhat abraded by a generation or more of skepticism about the discipline and definiteness of law. The attitude is abroad that rules and principles simply cannot control concrete cases at all, that they thus cannot be applied in adjudication, and indeed that they are not worth seeking to establish in the first place."
Professor Fried sets out to ...
" ... confront directly the notion that legal rules and doctrines cannot control particular cases or even coerce our judgment, and that such rules are a sham, merely invoked after the fact to justify results reached on other grounds."
This leads to some disturbing thoughts expressed by American legal cynics:
"Words mean whatever we want them to mean," some Humpty-Dumpty-like legal officials say. It is all relative. Law is about power or politics, the critics insist, which is (sadly) very true in some dark corners of the U.S. legal landscape. ("John Finnis and Ethical Cognitivism.")
But is legitimacy in adjudication even a possible goal?
Along with Professor Fried, I think legitimacy or correctness is or can be, achieved sometimes. I want to believe in law. ("Roberto Unger's Revolutionary Legal Theory.")
Let us begin with the Bard:
Since brass, nor stone, nor earth, nor boundless sea,
But sad mortality o'ersways their power,
How with this rage shall beauty hold a plea,
Whose action is no stronger than a flower?
O! how shall summer's honey breath hold out
Against the wrackful siege of batt'ring days,
When rocks impregnable are not so stout,
Nor gates of steel so strong, but Time decays?
O fearful meditation! where, alack,
Shall Time's best jewel from Time's chest lie hid?
or what strong hand can hold his swift foot back?
Or who his spoil of beauty can forbid?
O! none, unless this miracle have might,
That in black ink my love may still shine bright.
What does this poem mean?
Shakespeare contrasts things that are very strong and seemingly timeless with what appears fragile and ephemeral, black marks on white paper, words.
Mere words are sometimes all that word-intoxicated men and women have to offer to one another in their efforts to confront and understand the mysteries of love or evil and death.
Words seemingly provide little resistance to the ravages of time or to powerful rulers. It is through his words that the poet writing this famous Sonnet will deposit his love and the image of his beloved on the printed page for posterity. ("The Soldier and the Ballerina.")
Do these words, after all, really provide the greatest resistance against the ravages of time?
Notice that there is language in this Sonnet drawn from lawyers' jargon "beauty's plea" or "action" (suit or claim) is no stronger than a "flower."
Shakespeare's ease with the language and "artificial reason" (Lord Coke) of the law can be disconcerting:
Where did Shakespeare go to law school? Middle Temple? Inns of Court with "Rumpole of the Bailey"? ("God is Texting Me!")
Shakespeare insists to his lover that his account of beauty and love -- this verse -- will survive the passage of time, "conveying" (an apt word!) to future generations the beauty of Shakespeare's mortal lover (that is, how great the person looked) and the intensity of the poet's passion.
It is through the mystery of language, then, that the "villain time" is once again defeated, as villains should be.
The Constitution is also a kind of Sonnet or a gift in words to posterity. Is it a loving gift, I wonder? I believe that it is. It is a gift that is only meaningful, however, if we accept or share in the wager on this capacity of language to transmit, across the "vales of karma" (Norman Mailer), meaning and truth.
I think that we should accept this dangerous wager. At least, on some days, I am willing to try to make the system work. Other days, I think that it is hopeless, but that we must struggle for justice no matter what the cost and however improbable it is that we will succeed in achieving justice.
The image of a flower is powerful, for we are reminded of the timelessness and endurance of that which, apparently, is fragile and evanescent.
The Buddha's holding of a single flower as the totality of his teaching on one occasion was a transformation of the flower into a text. The flower "is." You must "be." End of sermon. ("Shakespeare's Black Prince.")
The message of the Christian scriptures is to turn the other cheek, to love your enemy, and it was the teaching of a man born to insignificance, in worldly terms, to a life of poverty, ignorance and labor. Nevertheless, there has been no more powerful message -- however you may feel about it today -- communicated from one generation to the next in stories that were written down, eventually, in words able to "signify" -- words that "worked" even in translation and over great distances of space and time by "narrating" the Christian story. That story is also a kind of "flower" that will not wilt, remaining always fresh and beautiful. ("Jacques Derrida's Philosophy as Jazz.")
As we approach the holidays this may be a good point to bear in mind.
I am reminded also of Elaine Scarry's lovely essay On Beauty and Being Just (Princeton: Princeton University Press, 1999), pp. 90-91:
"Beauty is, then, a compact, or contract between the beautiful being (a person or thing) and the perceiver. ..."
No amount of deconstruction or skepticism seems to have limited the power of Biblical stories, as literature and myth, to transmit beauty and meaning from antiquity to today's readers. In fact, the scriptures may also be read as a book of laws. They are the gift of ancient legislators to us as judges and subjects. All of this is accomplished "now" with "black ink."
Like the Bible and U.S. Constitution, Shakespeare's Sonnet has a transcendent as well as literal meaning (or meanings) that is (are) made self-evident in the act of reading:
" ... respect for human intelligence requires that we attempt to understand that meaning rather than try to make it up."
We are led by the hand to an easy conclusion:
"What is this poem about? It is, I submit, about writing. More generally, it is about words: the miracle that can make what is even most fragile and evanescent shine brightly through time."
When we come to interpret the provisions of our Constitution we begin with a recognition of all that endures the passage of time in that document even as we apply its principles to our latest contexts and disputes:
"Without the ability to fix and transmit the intention of the framers [in language] -- and we are all framers -- across the void of time and between persons, we are powerless to create and innovate at all."
Recognizing the imperfections of language and persons does not defeat this claim. You have said nothing about my principles by pointing out my failures and flaws:
"The real issue is what we make of this acknowledgment that our language, like our reason and will, is fallen and imperfect. Do we give up, or do we make the effort to understand and interpret in good faith, assuming the good faith and competence both of our language and of our interlocutors? ..."
This leads Professor Fried to his best insight:
"The possibility of understanding rules and texts means that law need not be just a matter of power. The miracle that has might is thus not just a transmission of fleeting sentiments, but the might to constrain with words -- that is, with reasons. This is what law is: a constraint not of force, but of reasons -- the reasons that one man [or woman] can offer to another for his [or her] ... judgments and ... actions, the reasons that one age offers another for its judgments and actions."
In the aftermath of the Nuremberg Trials the debate concerning the validity of the administration of laws became more stark and brutal.
Law embodies the choice (or fragile hope) of imperfect human reason against violence or oppression. Recently, violence has been winning this eternal battle. The achievements on the side of reason and ethics are slight, endangered, seemingly negligible when set against car bombs and airplanes crashing into buildings, or N.J.'s protected computer crimes and censorship along with organized crime and incompetent courts.
There are no alternatives to reason, however, if we are to live civilized lives, no other option but this effort to bring the persons responsible for wrongdoing -- especially when they are hidden behind judicial robes and titles of office -- to a face-to-face confrontation with their victims by forcing upon powerful and corrupt "actors" the acknowledgment of their crimes and the consequences of their evil. ("New Jersey's 'Ethical' Legal System" and "Law and Ethics in the Soprano State.")
Faith in law is trust in civilization as opposed to violence. No secrecy. No torture. No censorship. It is a confidence in the capacity of law, as language, to constrain and guide our actions, to direct us to rightful ways of dealing with others.
Most of all laws may instruct us in the ways to repair the moral fabric of our lives after the experience of evil.
The greatest growth in international human rights law and U.S. Constitutional jurisprudence occurred after the Holocaust.
Perhaps American Constitutional law will take a quantum leap forward after the atrocities of Abu Ghraib and Guantanamo. ("Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture" and "What is it like to be tortured?" and, soon, "What is it like to be raped?")
It is possible that the current debate about torture in America will result in more humane legislation, together with a new commitment to affirming the dignity and worth of persons as well as the categorical rejection of torture and rape (or theft from victims) in our legal system.
This is a cause worth fighting for. I plan to do just that. There can be no reconciliation or peace, however, without truth.
I am aware of the cynical arguments about law being the plaything of the rich, about the stupidity of judges and the corruption in our institutions.
I cannot explain away the suffering of millions of persons exploited and violated in this society and/or throughout the world. I am one of them. I have spent several hours today battling against hackers destroying my writings to the indifference of the authorities in one American jurisdiction. ("How Censorship Works in America" and "Censorship and Cruelty in New Jersey.")
I cling to the hope that words can and do succeed in making communication a reality over time often governing the decisions of judges and legislators who act in good faith.
With all of its flaws there is no alternative to law in a free society.
Our responsibility, therefore, becomes one of contributing to the success of the legal system rather than denigrating or trivializing it, without offering something better in its place, and we make that contribution best when we insist that errors be corrected and justice be done in a timely fashion.
As a person who was raised in N.J. and is concerned about the legal system in that unfortunate jurisdiction the spectacle of criminal censorship to which you are witnesses is sad and frightening while the decline in the court system is much worse and seems to be spreading to other jurisdictions.
As Shakespeare left us with images of the beauty he saw in faces he loved so the framers of the American Constitution have captured forever in its majestic words a representation of that city on a hill that America may yet become through law.
