Sunday, June 25, 2006


Today's LOS ANGELES TIMES carries an amusing editorial by Samuel Walker, titled THANKS FOR NOTHING, NINO. (Though now that I visit the web version to get that link, I see that it has been retitled SCALIA TWISTED MY WORDS, a somehwat more literal, less colorful rendering of the charge against "Nino" Scalia.)

Walker is a retired professor of criminal justice at the University of Nebraska and a frequent author on policing and civil liberties. The occasion of Walker's essay is his discovery that Antonin Scalia had cited his book TAMING THE SYSTEM: THE CONTROL OF DISCRETION IN AMERICAN CRIMINAL JUSTICE in writing his opinion in Hudson vs. Michigan, the case I wrote about last week that seriously erodes the power of the exclusionary rule to restrain police violations of the reasonable search and seizure protection.

What Walker found, much to his horror, upon reading Scalia's opinion was that Justice Scalia had selectively quoted from Walker's text and deployed his words to make an arument that was exactly the opposite of the conclusions reached in Walker's book.

"The misuse of evidence is a serious offense--in academia as well as in the courts. When it's your work being manipulated, it is a violation of your intellectual integrity." -- So writes Samuel Walker, and quite rightly. This is the sort of misuse of quotation that would be cause for me to return a student's paper as woefully substandard and unacceptable. The problem is that we have no one to return Scalia's paper with a well-deserved F in red at the bottom of the page.

But this is not only a violation of Walker's integrity, it reflects upon Scalia's as well, and it is all too common a feature of the writings and speeches of many on the Right who loudly proclaim themselves to be champions of original intent and strict construction, opposing themselves to those wild-eyed crazies in the academy who presumably teach that any writing can be taken to mean any thing.

Still, any proper thinking poststructuralist will point out the simple truth (that word we professors supposedly reject) that the fact that a statement may have an infinite number of interpretations does not mean that it can mean ANYTHING at all. Why is it, one asks rhetorically, that Derrida, to take one instance, can be a more trustworthy close reader of the words that actually appear on a page than can be those who profess to be guided by the original intent of the framers of the writing?

The classic instance of this came from Senator Orin Hatch, a self-proclaimed strict constructionist and original intent guy -- one fond of opposing himself to radical relativists -- in the course of the Clarence Thomas confirmation hearings. In one jaw-dropping exchange, Hatch declared that Anita Hill could not have possibly meant what she said under oath that she had meant by one of her statements.

Scalia is long-practiced in the dark arts of misappropriation, and Walker's is just the most recent example. Walker writes that he feels obliged to set the record straight about what he actually wrote in his book. But Walker can only appeal to the reading public at large. There is no appeal of Justice Scalia's abuse of Walker's text, or Saclia's abuse of the text of the Constitution, to any higher court. Scalia knows his is the last word in law.

We look no father than the same day's issue of the NEW YORK TIMES BOOK REVIEW for another stunning example of the syndrome. In a piece titled NEOCON OR NOT?, Robert Alter reviews an important new volume from the University of Chicago Press by Steven B. Smith.

If, like me, you've often wondered how many of the current crop of neocons who make routine references to the work of Leo Strauss have actually read Strauss's works in any comprehnsive way, Smith's book will go a long way toward answering your question.

As Alter summarizes in his review, "it has become received wisdom that a direct line issues from Strauss's seminars on political philosophy at the University of Chicago to the hawkish approach to foreign policy by figures like Paul Wolfowitz and others in the Bush administration."

David Horowitz, just a few months ago at Penn State university, had to ignore the hands that went up in the audience when he asked if anybody had read Strauss or Hayek so that he could continue blithely asserting that those philsophers simply don't get taught in the academy today. A better question might well be whether he has ever read Strauss. Smith writes in READING LEO STRAUSS that "the idea that political or military action can be used to eradicate evil from the human landscape is closer to the utopian and idealistic visions of Marxism and the radical Enlightenment than anything found in the writings of Strauss." And that goes a long way toward explaining the extraordinary rendition of Strauss's writing that we get from the likes of the former Marxist David Horowitz. It turns out that readers are far more likely to get a nuanced reading of Strauss from those radical questioners of Enlightenment philosophy whose presence in America's philosophy departments so exercises the Right.

At the conclusion of his review, Alter, having outlined Strauss's dialectic vision of reality, concludes: "why some of his most prominent students missed this essential feature of his thought, and why they turned to the right, remains one of the mysteries of his intellectual legacy."

But it's not that much of a mystery. Whether we're reading Allan Bloom or Ann Coulter, the demonstrable fact remains that we are dealing with people who, in the name of strict construction, feel no compunctions about engaging in the most tortured alterations of texts to make them read as they would have them, whether the text is the philosophy of Leo Strauss, the legal writings of Samuel Walker, or the Constitution of the United States of America.

No comments: