Sunday, February 27, 2011

O'Neill on Constitutional Argument

Professor Tim O'Neill (John Marshall, Chicago) recently posted on SSRN his eclectic and highly engaging article Constitutional Argument as Jeremiad--an argument about the structure of constitutional rhetoric.  O'Neill treats us to more than familiar legal and philosophical fare; instead, he roots his thesis in American jeremiad--a form of rhetoric that he traces from Herman Melville's once maligned and now mostly ignored Pierre through Paul Harding's 2010 Pulitzer Prize-winning novel Tinkers.  This compact piece--with its one part law-and-literature, one part intellectual history, and one part constitutional theory--is well worth a read, both for the argument on constitutional rhetoric, and for the sheer fun.

"Jeremiad," derived from the biblical prophet Jeremiah, means a list of one's own troubles or complaints--"a prolonged lamentation or complaint," according to Webster's.  O'Neill traces its travels and evolution from Europe to America and describes the American jeremiad as a three-part process:

1) an invocation of a standard to be lived up to; 2) a demonstration of how the current behavior of the people has fallen short of that standard; and 3) a presentation of a vision of the future when the people . . . return to that standard.

O'Neill, drawing on a distinction from Tinkers and Pierre between a chronometer (a time-piece always fixed at Greenwich mean time, representing unchanging, divine truth) and a horologist (a clock-maker, who sets clocks locally, representing relative time), offers Jack Balkin as an example of the jeremiad:

Balkin's "original meaning" theory treats a constituitonal provision such as the Cruel and Unusual Punishment Clause as a chronometer.  It treats the clause as a standard that exists outside of time.  It functions as a challenge to our narrow, local, horological sense of justice.  And the form of Balkin's argument folows the jeremiad: first, the invocation of the aspiratioinal "heavenly chronometer" in the form of a constitutional provision challenging us to live up to an ideal; second, a description of how we have currently strayed from that ideal; third, a demonstration that by correcting this wrong we will merely be returning to the chronometric standard we have always embraced.

O'Neill gives another example, Frederick Douglass:

Frederick Douglass saw the possibilities inherent in the Constitution.  He viewed the constitutional guarantee of freedom not as a horological actually describing reality in antebellum America, but rather as a chronometric ideal.  In a Fourth of July speech in Rochester, New York, in 1852, Douglass supported this view by making an audacious claim: he said the Constitution "interpreted as it ought to be interpreted . . . is a glorious liberty document." . . .

First, Douglass recognizes that the high-minded ideals in the Constitution and Declaration were not horologicals describing the nation that existed in the Eighteenth Century; rather they are chronometric values to which the country pledges to forever aspire.  Second, his description of mid-Nineteenth Century America shows the woeful state the country was in because of slavery.  Third, he urges that the solution to the current problems lies in a return to the Eighteenth Century: not in the horological sense . . . but in the chronometric sense to the aspirational values upon which the country was founded.

But according to O'Neill these values--this "concept" of justice, borrowing from Dworkin, can only be approached and never achieved: "[T]he American jeremiad provides a never-ending process: it is 'the official ritual form of continuing revolution.'" (Quoting Bercovitch's The American Jeremiad).


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