Hermeneutics and Constitutionalism

Heidegger, Gadamer, Taylor, and Rorty all saw poetry, literature, art, and even sports as powerful lenses for understanding the world and explaining their philosophies. Ever since Gadamer bent my framework to the breaking point, I have found that stand-up comedy is the best lens for my own edification.

I have employed this lens in numerous venues before, so I hope you’ll forgive me quoting myself:

There’s something mysterious about a truly successful set. The comic spends no small amount of time laying groundwork, and then lands a punchline that lights up the room. There’s a palpable effect; people loosen up, they’re more likely to laugh at things they might have only chuckled at mere moments earlier. In a sense, the comedian seeks to master the room rather than any specific people in it. But he never knows ahead of time, or even most of the time he’s up, whether he’s going to pull it off or not. Comedians, especially unknowns and especially unknowns performing at open mics, step into a situation of great uncertainty and emotional vulnerability.

Even seasoned comics with well-tested material can blow it and face the agony of an uncomfortably or tensely silent room. There’s never a guarantee, no matter how good they are, that this day won’t be a bad one, this performance won’t win the audience over. And that is after years of almost entirely bad days. In short, it takes not only practice, but considerable commitment in the face of discomfort and humiliation in order to become skilled at comedy.

There are a few key pieces here. First and foremost, the circumstances; jokes do not stand on their own, but are funny in specific contexts. Then there is delivery, of course; the performance. To paraphrase Aristotle, a joke is funny when told the right way to the right audience under the right circumstances. Then there’s a relationship between the two: a successfully delivered joke actively influences the circumstances, improving conditions for the next joke and the one after that. Finally, there is an irreducible, even oppressive, uncertainty; no matter how experienced and skilled the comedian, no matter how reliably their set has worked for however long a time, it is impossible to know that here, tonight, at this performance, they will succeed.

This array of contingencies makes scientific humor impossible:

Now imagine cognitive scientists attempting to study humor. They have a set of pre-written jokes and have people read them in a controlled environment. Or use your imagination—try to think of any controlled environment in which they could systematically study humor. I can’t. Professional comedians brave pitiless audiences for years in order to master the art of formulating and delivering jokes. If they can’t be guaranteed to make you laugh, do you really think cognitive scientists could, much less reliably and in a way that replicates?

In Gadamer’s formulation, understanding is an event, it is something that happens to someone, not something they choose to have. In comedy, a polite laugh is not the same as a deep belly laugh, the kind that leaves you laughing so hard you are crying. The latter is not something you can choose, it is something that happens to you, perhaps in spite of yourself.

For Gadamer, hermeneutics is what we reach for when something has gone wrong, when understanding has not happened. Much as we can choose to try and understand why other people find a joke funny when it failed to make us laugh. Perhaps the end result will be understanding, and as a result when we read new texts employing related ideas, we will understand them from the outset. And perhaps in attempting to understand what people find funny about a joke we did not laugh at, we’ll grasp something intellectually for now that will make us more likely to laugh at similar humor in the future (even if, as anyone can tell you, the very act of understanding a joke in this way kills the particular joke).

Now imagine a judge ordering his bailiff to take away a defendant the jury has just pronounced guilty. Imagine this bailiff does not immediately act; perhaps they are simply spacing out, perhaps they are actively hesitating for some reason. The judge, annoyed, barks his order again, startling the bailiff, who at last complies. Yet into this situation entered the possibility that the bailiff would not act, something that seems more strange, more alien, than the notion that a human being would almost mechanically comply with what another one told them to do simply because the words had been spoken. The judge’s annoyance conveys a frustrated expectation, but only frustrated, not impeded—he still expects to ultimately get his way, and has not even conceived of a scenario in which the bailiff ignores him entirely.

The judge’s order is a speech act, something more specific and institutionalized than the well delivered punchline or the interpretation of a text. Yet the three can usefully be put in parallel for my purposes. Speech act, punchline, and interpretation are all performed actions that achieve an effect on other human beings in specific circumstances. When all goes well, it is almost like an incantation; the bailiff’s body moves on command, the audience roars with laughter with a timing that couldn’t be more precise if it were rehearsed, and a “lightbulb goes off” in one’s head—the reader suddenly finds it impossible to understand something in any other way than the one that has just occurred to them.

I am currently working on a project, a crash course in the political science of the American system. When people have asked me why this project has consumed me the way it has, I have had trouble answering. One answer which is not exactly wrong is that it is relevant. Hermeneutics and pragmatism are fascinating to me, but at the end of the day the payoff of each is that you ought to attend more to the details of life than to the heady abstractions of (even pragmatist and hermeneutic) philosophy. Understanding how the American legal and political system works in practice has much more concrete and useful applications.

But this answer is incomplete. I’ve had trouble articulating the other part but think I have it at last. To me, constitutionalism—which is what this project of mine truly is, constitutionalism in the British sense, the sense not tainted by contractarianism—is simply institutional exegesis.

The constitutional whole

Wood has all the scholarly credentials needed to aid us in the reading of Hegel, but his purpose is to open up the richness of Hegel’s thought, and to answer in his own way Hegel’s claim that “the true is the whole.” This claim too is a source of difficulty, since it seems one must know everything to know anything. And yet this view can also be a source of enabling rather than hindering. If the true is the whole, in a sense one can start anywhere, one can start wherever one happens to be, and traverse the pathways of connection revealed by attentive thinking.

William Desmond’s foreward to Hegel’s Introduction to the System, by Robert E. Wood

To understand the court system you must understand parts like the role of judges, bailiffs, juries, prosecutors, and so forth. These parts add up to the institution of American judiciary as a whole. Only this picture is still partial; the judiciary operates in relation to other institutions; congress, the presidency, the administrative state, the many components of state and local governments, but also the law school system and the pillars of the American legal community. All these and more add up to the American constitution, small-c, which amounts to the whole social system of the nation.

Now, to return to the notion of “performed actions that achieve an effect on other human beings in specific circumstances.” Part of what drew me to constitutionalism in particular of all the possible fields of interpretation was reading more about the details of performed actions in our institutional setting that didn’t have the effect they are formally supposed to have. So The Color of Law contains numerous examples of Supreme Court decisions which simply did not change the reality on the ground at the municipal level, even though the Supreme Court is formally at the top of the system and the rulings were explicitly about municipal laws (rather than being federal cases). Here were judicial punchlines intended to light up the room that were instead met with utter silence.

I began to think of things in terms of:

  • What actors
  • under what circumstances
  • performing what actions
  • achieve what effects

The massive amount of possible combinations means that one cannot ever hope to achieve a comprehensive catalog, even if you lived for a thousand years (the circumstances component alone would be impossible to be comprehensive about). So what can you do?

You can draw an incomplete, imperfect outline of the whole—the constitution. Each part of the constitution is a subject of study with specialists (and practitioners!) who make whole careers out of just that part, or some part of that part. As a constitutionalist, you draw on these specialists from across each institution and corner of society and attempt to flesh out the relations as best you can, to see the big picture that creates the context that each component operates within.

No social action occurs in a void. Audiences are not passive receptacles of comedians’ jokes. Some may not even be there to enjoy the routine; they may be there begrudgingly, and seek to ruin it for everyone or to draw positive attention to themselves by upstaging the comedian. When a comedian sets up a joke, these hecklers can take specific action to torpedo the conditions the comedian is seeking to create. Skilled comedians know not only how to tell a joke to receptive audiences, but how to parry hecklers and use their barbs to the comedians’ own advantage.

Similarly, a ruling issued by the Supreme Court is not met by a passively accepting institutional structure; actors seated at different perches of power throughout the system can take action to nullify any possible effect the ruling might have. In as much as the jurisprudence known as legal realism has a useful practical message for judges on the bench, it is that these factors—how institutional actors will actually respond to rulings—need to be considered when deciding the rulings in the first place.

A good constitutionalist will be able to see a particular action by a particular actor under a particular set of circumstances, and, without being able to scientifically predict anything, have useful thoughts about:

  • What the likely effect would be if no other actor made an attempt at nullification
  • What actions from what actors could potentially nullify the effect of the action
  • What actions from what actors would strengthen or complement the effect of the action

At this time, to speak of constitutionalism in America is rather presumptuous. We have political science and sociology. We have a legal community with a great deal of knowledge of case law. We have capital-C Constitutionalism, which, when it takes the form of philosophy rather than knowledge of relevant case law, is little more than a species of rationalism. But few really attempt the exegesis of American society, to read our institutional character, the constitution that matters more than any other could.

And it just seems to me to be very hard to get a sense of how a particular institution truly functions in the American setting if you don’t have at least a sketch of the overall constitution to provide context.

That, then, is part of my current interest—OK, obsession—with constitutionalism. Gadamer’s hermeneutics truly turned my world upside down and made me reconsider a great deal from scratch. Hermeneutics is the theory of interpretation, exegesis its practice. The more comfortable I became with the former, the more I hungered for a topic in which to practice the latter. Constitutionalism, for a number of reasons I hope I made clear above, has a great deal about it that excites me intellectually.

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