Law and Literature Part 12

readers whom the author intended to address, and the writing's original linguistic and cultural context. That is the basis (paradoxically, considering his hostility to deconstruction) of John Ellis's theory of literature (see chapter 1). In addition, much can be lost in clarity of communication when we move from spoken to written speech. Take inflection, for example. Whether the commerce clause in Article I of the Const.i.tution ("Congress shall have the power . . . to regulate [interstate and foreign] Commerce") forbids states to burden interstate commerce unreasonably or merely empowers Congress to regulate commerce depends on whether one reads the clause with the emphasis on "Congress" or on "Commerce."

To say that the properties of signifiers that make them an imperfect medium of communication are as interesting or important as communication-even to say that the orthodox theory of language is ungrounded or incoherent-is not to say that no text can be interpreted in a way that will re-create in the reader's mind the concept that the author wished to convey. Deconstruction does not disestablish the interpretability of texts; if it did, how could deconstructionists get their message across? But by emphasizing the impediments to effective written communication, it does invite a textual skepticism that can be corrosive, as we shall see.

Literature interests deconstructionists because it is not even trying to convey concepts in the most economical manner possible (in contrast, say, to an executive summary). The use of figurative language, rhyme, a.s.sonance, meter, punning, the arrangement of words on a page (as in poetry), and other devices that call attention to the signifiers and thus decrease the transparency of the medium of communication fit the deconstructionists' program of placing the properties of language that impede forthright communication on a par with those that enable it. No wonder orthodox language theorists, beginning with Plato, have often been impatient with literature, though the real point is not that literature does not communicate, for obviously it does, but that concepts are not primarily what it communicates.

If pract.i.tioners of literary deconstruction were content merely to point out the dense and refractory character of much literature, they would be doing nothing new; the New Critics were pointing out the same things three-quarters of a century ago, with particular reference to poetry. A work of literature is more than its paraphrasable content. For most critics, however, the "more" is a depiction or evocation of some aspect of reality, *such as love or war; and this makes literature "referential"-there are not just signifiers, there are things signified. So it was natural for deconstructionists, being interested in signifiers rather than signifieds, to train their guns on the mimetic theory of literature-the theory propounded by Aristotle, Samuel Johnson, and Erich Auerbach, among many others, that literature presents an imitation or representation of reality understood as something "out there." Literary deconstruction, in contrast, presents literature as self-referential. In so doing it closes the loop with philosophical deconstruction by directing attention to the medium of communication and indeed making the subject of literature the problematics of reading for meaning.

"In the Penal Colony" is thus a work of particular resonance for deconstruction.9 The torture machine is a writing machine, and one way of stating the officer's problem is that he puts too much faith in writing as a medium of communication, while an alternative interpretation is that, in good deconstructive fas.h.i.+on, it is the medium, not the communication, that obsesses him. And those fearful arabesques that the machine inscribes on the body of the condemned in order to protract the torture are a wonderful metaphor for overdetermination. Words live a life of their own, and an unruly life at that. But the relevance to law is obscure. Even if literary texts are self-referential, it does not follow that legal texts are; the techniques employed by authors of literary texts are different from those of authors of legal texts. So one should not be surprised that deconstruction in law, except when the word is used merely as a synonym for text skepticism,10 bears little resemblance to deconstruction in philosophy or literary theory.

Deconstruction in law has come to mean identifying latent contradictions in legal reasoning or legal doctrine.11 In Jack Balkin's formula 9.See Clayton Koelb,"'In der Strafkolonie': Kafka and the Scene of Reading,"55 German Quarterly 511 (1982); Koelb, Kafka's Rhetoric: The Pa.s.sion of Reading (1989); Arnold Weinstein, "Kafka's Writing Machine: Metamorphosis in the Penal Colony," 7 Studies in Twentieth-Century Literature 21 (19821983). Cf. Mark M. Anderson, Kafka's Clothes: Ornament and Aestheticism in the Habsburg Fin de Siecle 185193 (1992).

A common use, doubtless influenced by the resemblance of the word "deconstruction" to "destruction."

See, for example, Gana, note 5 above, at 328; Clare Dalton, "An Essay in the Deconstruction of Contract Doctrine," 94 Yale Law Journal 997 (1985), esp. pp. 10071008.

tion, "all conceptual oppositions can be reinterpreted as nested oppositions." A nested opposition is "a conceptual opposition each of whose terms contains the other, or each of whose terms shares something with the other."12 Negligence and strict liability are conventionally regarded as opposite theories of liability for accidental injury, but negligence has an element of strict liability because a person is liable in negligence for failing to use the care of an average person even if he is incapable of doing so, while strict products liability has an element of negligence because the plaintiff has to prove that the product was defective, implying negligence somewhere in the chain of production.13 Here is another example from Balkin: According to the CLS [critical legal studies] critique, the dominant story of human relations in contract law imagines that autonomous individuals freely choose the terms of their bargains, and accept (or should accept) full responsibility if they choose badly. The Critics point out, however, that much contract law (and much contracting) does not fit this model. Rather, it is best understood as invoking an alternative story about human relations. In this story, individuals cooperate with and rely on each other; they expect that they and others will not take advantage of each other even when this might be technically permissible. Individuals are interdependent and need to cooperate to survive. They often lack information, are emotionally vulnerable, and are often overborne by circ.u.mstances not of their own making. Inst.i.tutions like the market can be unfairly coercive and oppressive even as they purport to be the home of freedom and self-realization. Deconstructive readings of contract law would explore how this countervision, if taken seriously, would change our understandings of appropriate contract doctrine.14 12. Balkin, "Nested Oppositions," note 5 above, at 16761677.

13. Id. at 16831686. The point requires qualification. A design defect is bound to be due to negligence, but a defect in manufacture need not be: it might be impossible at reasonable cost to operate a manufacturing process that would have a zero risk that an occasional unit of output (perhaps one in a million) would be defective.

14. Balkin, "Deconstruction's Legal Career," note 5 above, at 725 (footnote omitted).

*But these were commonplaces of tort and contract scholars.h.i.+p when Balkin was in high school. He does not claim otherwise. So what is gained by restating them in terms of nested opposition, besides the shock value of a.s.sociating legal scholars.h.i.+p with a movement that uses extreme statement, willful obscurity, and unfamiliar terminology to convey an impression, however misleading, of revolutionary menace and excitement?15 Very little; but the important point is that legal deconstruction, as a distinct mode of a.n.a.lysis rather than a vogue word for text skepticism, has nothing specifically to do with the interpretation of texts and so nothing to do with this book. Its focus is on concepts.

The opacity and sheer strangeness of much deconstructionist writing, notably but not only that of Jacques Derrida,16 the appropriation of the term by leftist legal scholars, and its apparently if misleadingly radical implications for interpretation, have given deconstruction a notoriety that at one time threatened to occlude other aspects of postmodernist thinking that might bear on legal interpretation. One, which we glimpsed in the introduction, is the rejection of aestheticism in favor of social and political criticism: works of literature are either mined for antic.i.p.ations of modern leftist thought or exposed as accomplices in oppression. Another postmodernist gambit is refusing to recognize the interpretive authority of authors. Foucault argued that "authors.h.i.+p" is a cultural artifact rather than a natural or indispensable foundation of our response to a written work, and a cultural artifact whose "authoritarian" purpose is precisely to limit the range of possible interpretations by appointing the writer the single authorized interpreter.17 15. See Ellis, note 6 above, ch. 6.

Here is one reader's exasperated comment: "For readers with a lifetime to spare, there is also a 100-page essay by Jacques Derrida, dealing with a subject yet to be determined." William E. Cain, The Crisis in Criticism: Theory, Literature, and Reform in English Studies 167 (1984). The translator's note at the end of Jacques Derrida, "Devant la loi," in Kafka and the Contemporary Critical Performance: Centenary Readings 128, 149 (Alan Udoff ed. 1987), states: "Derrida's text continues; but, blind and weary, I shut the text-door here." The translator is alluding to the last sentence of "Before the Law": "I'm going to go and shut it [the entrance] now."

Michel Foucault, "What Is an Author?" in Textual Strategies: Perspectives in Post-Structuralist Criticism 141 (Josue V.Harari ed.1979).But there is merit to at least the first half of Foucault's argument, as we shall see in chapter 14.

The rejection of aestheticism belittles the author by making him a politico; Foucault dethrones him; deconstruction denigrates the intelligibility and coherence of texts and joins Foucault in undermining authorial authority.18 The net effect-a kind of reader's and critic's rebellion19- gives aid and comfort to the advocates of free interpretation of legal texts. If statutes and const.i.tutions lack definite author-given meanings, then judges in "interpreting" these texts must be exercising discretion. So the attack on interpretability and authors' authority is an attack on "ruledness" as well.

But the political and epistemological aims of postmodernism clash. If objective textual interpretation is impossible, Robin West is wasting her time trying to show that Kafka's fiction contains a radical message; she must have put it there herself.20 Adhered to consistently,21 a posture of "A deconstruction is better understood as an artifact that 'works' in relation to another artifact (the deconstructed text), by dissolving the second artifact's 'effect' of impersonal compulsion, always in the name of an unrepresented something." Kennedy, note 5 above, at 349.

The restiveness of the literary critic forced, in the traditional conception of the critic's role, to play second fiddle to the literary text is the plaintive theme of Geoffrey H. Hartman, Criticism in the Wilderness: The Study of Literature Today (1980); and see his preface to Harold Bloom et al., Deconstruction and Criticism vii (1979): "While teaching, criticizing, and presenting the great texts of our culture are essential tasks, to insist on the importance of literature should not entail a.s.signing to literary criticism only a service function." The parallel to the restiveness of the judicial activist asked to play second fiddle to statutes and the Const.i.tution (and to the "service partner" in a law firm resentfully contemplating the much higher income of the "rainmaker" partner whose clients he services) is apparent, as is the relation of such att.i.tudes, in both literature and law, to the tradition of romantic self-a.s.sertion examined in chapter 5. See also chapter 14. The critic's dissatisfaction with playing second fiddle to the creative writer was skewered in a famous essay by Randall Jarrell, "The Age of Criticism," in Jarrell, No Other Book: Selected Essays 281 (Brad Leithauser ed. 1999 [1952]).

She is aware of this problem: "The infusion of a postmodern skepticism regarding universal accounts of our nature has led to a debilitating impa.s.se in critical legal thought." West, "Introduction: Reclaiming Meaning," in West, Narrative, Authority, and Law 1, 18 (1993). Her "book is accordingly put forward not as an attack on traditional or enlightenment understandings of meaning, but quite the contrary, as an attempted reclamation of meaning from contemporary and postmodern critics of both the political Right and Left." Id. at 22. This was a change of position for West, who four years earlier had been a Foucaldian. See Robin West, "Law, Literature, and the Celebration of Authority," 83 Northwestern University Law Review 977, 10031010 (1989). I am not aware, however, that the political Right has produced any postmodern critics.

21. Which it never is. Graham Bradshaw, Misrepresentations: Shakespeare and the *radical skepticism would cut the ground out from under the radical critic's advocacy of social change. His own proposals could be derided as culture-bound, historically contingent, subjective-even as implicated in the repressive discourse that he was attacking, as when Kafka's writings are treated as auth.o.r.ed by Franz Kafka. Just by treating Kafka as an authority, a social prophet, a "genius" who speaks to the social problems of modern America across a cultural and temporal gulf, West is challenging the radical egalitarianism of postmodernists who want to bring the reader level with the author.

Postmodernism oscillates between being revolutionary and being quietistic. When the contingent, constructed character of social and in some versions even physical reality is emphasized,22 radical transformation of society is seen as possible, although writers can't be appealed to as authorities for the transformation. Much radical feminist thought is of this character, including the idea that s.e.xuality itself is merely a social construct. When instead the ethnocentric, socially constructed character of the self is emphasized, the possibility of objective social criticism is undermined. Such criticism presupposes an external, ec.u.menical standard, such as "universal rights" or "our common humanity," that postmodernism denies exists.23 Materialists (1993), points out that cultural materialists, new historicists, and other postmodern literary critics do not relativize their own political and methodological stances but treat them as timeless and true.

Preposterously so in the case of physical reality. For incisive criticism of this most extreme version of postmodernism, see Paul A. Boghossian, "What the Sokal Hoax Ought to Teach Us: The Pernicious Consequences and Internal Contradictions of 'Postmodernist' Relativism," Times Literary Supplement, Dec. 13, 1996, p. 14.

See Sabina Lovibond, "Feminism and Postmodernism," 178 New Left Review 5 (1989). Balkin, in "Deconstruction's Legal Career," note 5 above, at 734738, acknowledges the quietistic implications of deconstruction. And Binder and Weisberg argue interestingly that deconstruction is at war with partic.i.p.atory democracy. Common sense tells us that speech is the more reliable, in a sense more "basic," method of communication than writing because it enables meaning to be clarified by inflection and body language and by interrogation of the speaker, and because the speaker knows who his "reader" (that is, listener) is and can fit his words to the listener's understanding. But deconstruction opposes the privileging of speech- exemplified in radical politics, where new meanings and ident.i.ties are forged in meetings, rallies, and other communal projects that bring people face to face-over writing. Guyora Binder and Robert Weisberg, Literary Criticisms of Law, ch. 5 (2000).

Just as deconstruction in law is a false cognate of deconstruction in literature and philosophy, "intertextuality" in law is a false cognate of intertextuality in literary theory. To law professor Akhil Reed Amar, intertextuality means "the illuminating ways in which [a legal text such as the Bill of Rights] both builds on and deviates from the precise texts of such earlier landmarks of liberty as the English Bill of Rights, the Declaration of Independence, and various state const.i.tutional declarations of rights."24 The earlier doc.u.ments are "helpful sources" of meaning.25 All that this seems to amount to, however, is that depending on context the same words or sentences in two different texts may mean either the same thing or different things.

In literature, "intertextuality," a coinage of the French literary theorist Julia Kristeva, could refer merely to the heavy borrowing by authors from their predecessors that, as we shall see in chapter 14, is at once so common and so important to an understanding of both the antiplagiarism norm and copyright law. But literary theorists use the word in a variety of senses centered on the claim that authorial intent cannot guide interpretation because there are only texts (so, for example, a revolution is a text), and texts therefore are meaningful only in relation to other texts. The theorists flaunt the obscurity of their concept, which as two of them explain with obvious relish is "impenetrable to the uninitiated. 'Intertextuality'- it should come as no surprise-is a promiscuous inter-discipline, or even a trans-discipline, certainly a transvest.i.te discipline in that it constantly borrows its trappings now from psychoa.n.a.lysis, now from political philosophy, now from economics and so on. Its pract.i.tioners enjoy playing with their own words (newly-coined) and even more so with other people's."26 The legal and literary-theoretical concepts of intertextuality have nothing in common but the word.

Amar, The Bill of Rights 296 (1998). See also Amar, "An(other) Afterword on The Bill of Rights," 87 Georgetown Law Journal 2347, 23602361 (1999); Alan Golanski, "Nascent Modernity in the Case of Sherwood v. Walker-An Intertextual Proposition," 35 Willamette Law Review 315 (1999).

25. Amar, note 24 above, at 299.

Michael Worton and Judith Still, "A Word on Vocabulary," in Intertextuality: Theories and Practices viii (Worton and Still eds. 1990). See also Julia Kristeva, Desire in Language: A Semiotic Approach to Literature and Art (1980); Graham Allen, Intertextuality: The New *The postmodern challenge to interpretability has been resisted, not least within literary criticism itself.27 Literary critics who believe that their task in reading a literary work is to reconstruct the author's intentions28 might be thought to provide ammunition for the "interpretivists" of legal texts, perhaps even for the "strict constructionists." The legal philosopher Ronald Dworkin has taken a stance between interpretivism and postmodern skepticism (though closer to the latter) and defended it in terms reminiscent of the New Criticism.29 He claims that we choose between interpretations of a work of literature by deciding which one makes the work better, more coherent, and more pleasing, and that we should do the same with statutes and the Const.i.tution, except that the criteria of goodness, coherence, and integrity (a favorite word of both Dworkin and the New Critics) would be moral and political rather than aesthetic. We should ask, for example, what interpretation of "equal protection of the laws" makes the Fourteenth Amendment consonant with the best moral and political thinking about law, rather than ask what the framers or ratifiers of the amendment had in mind. Reversing Sh.e.l.ley's dictum in A Defence of Poetry, Dworkin hails judges exercising broad legislative-type discretion as the unacknowledged poets of the world.

The New Critics treated a work of literature as an artifact, coherent and intelligible in itself and not to be understood better by immersion in the details of the author's biography or in the other circ.u.mstances of its composition, publication, or reception, except that some background knowledge, such as knowledge of the meanings that the words in the work bore at the time it was written, is understood to be necessary.30 New Criti- Critical Idiom (2000); William Irwin, "Against Intertextuality," 28 Philosophy and Literature 227 (2004).

See, for example, Robert Alter, The Pleasures of Reading in an Ideological Age (1996)-both an argument for and a demonstration of literary criticism as the imaginative but disciplined interpretation and evaluation of works of literature.

See, for example, E. D. Hirsch Jr., Validity in Interpretation (1967); P. D. Juhl, Interpretation: An Essay in the Philosophy of Literary Criticism (1980); Steven Knapp and Walter Benn Michaels, "Against Theory," 8 Critical Inquiry 723 (1982).

See, for example, Dworkin, Law's Empire, ch. 2 (1986); Dworkin, Freedom's Law: The Moral Reading of the American Const.i.tution 2 (1996). See also the debate between Dworkin and his critics in 29 Arizona State Law Journal 353 (1997).

The New Critics' approach is well summarized in Malcolm Bradbury, "Introduction: The State of Criticism Today," in Contemporary Criticism 11, 1419 (Malcolm Bradbury and cism is thus a school of formalist criticism, and has counterparts in law: not only the coherentist jurisprudence of Dworkin, which downplays drafters' intentions, but also the common practice of interpreting contracts without reference to "extrinsic" evidence, such as testimony by the parties as to what they meant by ambiguous terms, and likewise the practice of interpreting statutes without help from statements by the legislators. These methods of interpretation dispense with evidence of meaning other than the doc.u.ment itself and the cultural background necessary to understand the words and sentences in it and the purposes of interpreting the type of doc.u.ment in question, whether contract or statute.31 And so with poetry. As explained by two leading New Critics, William Wimsatt and Monroe Beardsley, "How is [the critic] to find out what the poet tried to do? If the poet succeeded in doing it, then the poem itself shows what he was trying to do. And if the poet did not succeed, then the poem is not adequate evidence, and the critic must go outside the poem-for evidence of an intention that did not become effective in the poem."32 For an intentionalist judge, the task in interpreting a statute is to figure out from its words, structure, and background how the legislators whose votes were necessary for enactment would have answered the interpretive question had it occurred to them. But this invites Wimsatt's and Beardsley's objections. At the other interpretive extreme from intentionalism, the deconstructionist or otherwise postmodern judge, his mind ranging far beyond the text, might argue that the provision in Article II of the David Palmer eds. 1970), and (less sympathetically) in Daniel Green, "Literature Itself: The New Criticism and Aesthetic Experience," 27 Philosophy and Literature 62 (2003), and in Richard Strier, "The Poetics of Surrender: An Exposition and Critique of New Critical Poetics," 2 Critical Inquiry 171 (1975). It is ill.u.s.trated by Cleanth Brooks's essay on Marvell's ode, note 3 above, and by his books The Well Wrought Urn (1947) and A Shaping Joy: Studies in the Writer's Craft (1971). See "Introduction," in id. at xi, and "The Uses of Literature," in id. at 1. See also W. K. Wimsatt Jr., The Verbal Icon: Studies in the Meaning of Poetry (1954). The New Criticism had (and has) immense pedagogical significance, in enabling students to learn to read and a.n.a.lyze difficult literature without having to immerse themselves in biography and history, but also in forcing them to interpret without the crutch that biographical or historical evidence of a literary work's likely meaning would give them.

So one of the synonyms for formalist criticism, "intrinsic" criticism, is particularly apt. See Stein Haugom Olsen, The Structure of Literary Understanding 137155 (1978). I discuss contract interpretation later in this chapter.

William K. Wimsatt Jr. and Monroe Beardsley, "The Intentional Fallacy," in The Verbal Icon, note 30 above, at 3, 4 (1954).

*Const.i.tution that one must be at least 35 years old to be President of the United States could mean merely that the candidate must have the maturity of the average 35-year-old.33 But to read the provision so would be to take the words of the Const.i.tution ("neither shall any person be eligible to that Office who shall not have attained to the age of thirty five Years") out of a a context that includes recognition of the importance of having orderly means of succession of officials, a practice of recording birth dates (and computing age, as not all societies do, from birth), and the enactment by lawmakers of arbitrary deadlines, as in statutes of limitations and statutes fixing minimum ages for marriage, voting, drinking, and ent.i.tlement to retirement benefits, in order to minimize uncertainty, albeit at some cost in substantive justice. This context enables us to see that the Const.i.tution lays down a flat rule for age of eligibility so that everyone will know with certainly well in advance of an election whether all the candidates are eligible.

One can imagine a cultural setting in which the provision would mean something different. Imagine if birth dates were not recorded or, as was common in ancient and medieval societies, numbers were used for rhetorical emphasis rather than quant.i.tative exactness ("an army of 100,000" to mean "a large army"). But these are just further ill.u.s.trations that the meaning of a sentence depends on a context that may include a social practice.

One can also imagine that just as force majeure or "impossibility" can void a contract, extraordinary circ.u.mstances might require courts to let stand a violation of the age-35 provision-for example, if some epidemic killed off everyone over 34, or if after the election of a President believed by everyone to be 35 a mistake was discovered in his birth certificate: he was 34. Perhaps the casuistic resources of the courts would be equal to 33. See Gary Peller, "The Metaphysics of American Law," 73 California Law Review 1151, 1174 (1985); Mark V. Tushnet, "A Note on the Revival of Textualism in Const.i.tutional Theory," 58 Southern California Law Review 683, 686688 (1985). Notice that this is deconstruction as text skepticism, not deconstruction as the bringing to the surface of latent doctrinal contradictions. Notice too that neither Peller nor Tushnet invokes the authority of Gilbert and Sullivan, though the plot of The Pirates of Penzance turns on the fact that having been born on February 29, Frederic, upon reaching the age of 21, is "legally" only 5 and therefore still apprenticed to the pirates.

the challenge of "interpreting" the provision to accommodate these affronts to its literal terms. Perhaps not; perhaps these cases show that context can alter meaning only so much. Either way, the essential judgment the courts would have to make would be political and prudential. The insights of deconstruction, or postmodernist theory more broadly, would not help them.

The choice between the New Critical and the intentionalist approach is less stark than I have suggested. New Criticism is less formalist than I have made it seem-indeed more intentionalist-while intentionalism can be understood largely in formalist terms. The term "New Criticism" denotes a specific school of American literary criticism that arose in the 1920s, achieved great influence in American universities in the 1940s and 1950s, and then faded. Its trajectory coincided with that of logical positivism, with which it also shares an extraordinary tenacity that has enabled it to survive as mood and inclination long after it was reviled and refuted as doctrine. (Much the same is true of cla.s.sic American legal formalism.)34 The New Critics were committed to the close scrutiny of works of literature viewed as artifacts and hence were drawn to works that best repaid such scrutiny by reason of their dense structure; mainly these were lyric poems. In addition, these critics, taking their cue from T. E. Hulme and T. S. Eliot, expressed a preference for literature that reflected a mature, realistic, even disenchanted-and definitely unromantic-att.i.tude toward life. This led many of them to disparage Romantic literature, with its cult of the child-and for the further reason that most of these critics were Christian conservatives who a.s.sociated the Romantic celebration of spontaneity, rebellion, transformative politics, the esemplastic power of the imagination, and egocentrism with liberalism and atheism (T. E. Hulme called Romanticism "spilt religion" because it transferred G.o.d's attributes to man), and who thought the values they found in literature akin to religious values.35 The New Critics' insistence on the artifactual character of works of literature also reflected a characteristically modern On which see William M. Wiecek, The Lost World of Cla.s.sical Legal Thought: Law and Ideology in America, 18861937 (1998). The persistence of legal formalism is one of the themes of my book How Judges Think, note 2 above.

See, for example, William K. Wimsatt Jr., "Poetry and Christian Thinking," in The Verbal Icon, note 30 above, at 267.

*ist hostility to modernity conceived of as the triumph of science and technology, products of abstract thought.36 So there was a moral and political tincture to the formalism of the New Criticism, just as legal formalism has usually had a political hue. By taking a politico-moral stance the New Critics were exposing their reputation to the winds of political fas.h.i.+on; when the wind changed, they became the b.u.t.t of left-wing critics.37 Some New Critics were aggressively uninterested in biographical or historical background and hence unwilling on principle to seek any clues to literary meaning in these things. But none doubted that a piece of writing is intelligible only in terms of presuppositions regarding language and culture that the reader brings with him rather than finds in the text. Cleanth Brooks thought it essential to the interpretation of Marvell's ode to know what the words in it meant in the seventeenth century when it was written, what the poem owed to Horace, and something about Cromwell's career.38 Only he didn't think it important to know Marvell's conscious opinion of Cromwell, since he believed that a poet can write better (for example, express a more nuanced view of Cromwell) than he knows. Milton is a striking exemplar of this point, as I'll argue. And think of all the obtuse authorial self-evaluations, such as T. S. Eliot's dismissal of See, for example, Cleanth Brooks, Modern Poetry and the Tradition 205206, 217218 (1939). The New Critics let "the 'integrity' of the literary work stand in for the integrity of all forms of endangered specificity." Catherine Gallagher, "The History of New Criticism," Daedalus, Winter 1997, pp. 133, 134. So against the abstractness of science Brooks sets the "concreteness, dramatic ambiguity, irony, resolution through struggle" of tragedy. Id. at 218. And he makes the fascinating suggestion that "a latent tendency toward levity lies at the heart of [Elizabethan] tragedy itself," id. at 212, because without an admixture of humor, tragedy would not give a "total" view of the human situation. Id. at 218. Thus, "the New Critics favoured ambivalence at the service of ultimate unity." Ronan McDonald, The Death of the Critic 96 (2007).

"New Criticism's high regard for 'ambiguity,' its admiration of polysemous structures, represent no real leaning towards 'total' criticism so much as a bourgeois mistrust of singlemindedness and commitment: the stances it prizes most-sophistication, wit, poise-are those of a decaying aristocracy characteristically revered by a sycophantic middle-cla.s.s." Terence Hawkes, Structuralism and Semiotics 155 (1977).

On the compatibility between formalist and historicist criticism, see Richard Strier, "Afterword: How Formalism Became a Dirty Word, and Why We Can't Do without It," in Renaissance Literature and Its Formal Engagements 207 (Mark David Rasmusen ed. 2002).

"The Waste Land" as "only the relief of a personal and wholly insignificant grouse against life; it is just a piece of rhythmical grumbling," and Kafka's p.r.o.nouncing "The Metamorphosis" a failure because of its ending.39 The reasons for such obtuseness include not only the author's lack of perspective in judging his own work but also the role of the unconscious in literary creativity. Meaning can be generated as a by-product of the author's attempt to solve a technical problem, such as how to make what he wants to say conform to his chosen metrical scheme or how to provide the audience with essential information. The inspiration that sets the writer going must be distinguished from the process of selection and revision necessary to complete the work. The meaning of the work will emerge from the interaction of these activities and thus in the act of creation or completion rather than having been completely thought out in advance.40 Some literature is written almost in an unconscious state. The great fifth part of "The Waste Land" spilled out in a rush and required virtually no correction, and "The Judgment" was written uninterruptedly in a single night.41 "Automatic writing" of this sort is unusual; most great works of literature undergo painstaking revision before the author will authorize publication. But often the revisions are made not according to conscious plan but instead out of an unconscious sense of fitness. They are nonetheless intended, just as Meursault intended to shoot the Arab, even though he had no plan to do so before he pulled the trigger and did not necessarily intend to kill him. Because we do not have unmediated access to another person's mind, intent is always something inferred or constructed. In a premonition of Foucault's concept of authors.h.i.+p, the New Critics thought authors.h.i.+p a construct but insisted that the author be T. S. Eliot, The Waste Land: A Facsimile and Transcript of the Original Drafts Including the Annotations of Ezra Pound 1 (Valerie Eliot ed. 1971); Ronald Gray, Franz Kafka 91 (1973).

See Monroe Beardsley, "The Creation of Art," in The Aesthetic Point of View 239 (Michael J. Wreen and Donald M. Callen eds. 1982); Samuel Alexander, Beauty and Other Forms of Value, ch. 4 (1933). For a case study of the emergence of poetic meaning from the process of revision, see Jon Stallworthy, Between the Lines: Yeats' Poetry in the Making (1963). See also Helen H. Vendler, Our Secret Discipline: Yeats and Lyric Form, ch. 1 (2007).

Eliot, note 39 above, at 8290, 129; Peter Ackroyd, T. S. Eliot: A Life 116117 (1984); Gray, note 39 above, at 57.

*constructed from his work rather than from his biography and his extraliterary opinions.

So why this intermediate step of constructing an author, as the New Critics do in talking about what Donne meant in this poem or Yeats in that one? The answer is that we invariably interpret a writing as someone's deliberate action; and so when we want to interpret a particular text we construct an actor, the writer whose action we are trying to understand.42 We are attuned to inferring people's intentions from their words, gestures, facial expressions, and acts; confronted with a human artifact in the form of writing we seek to understand it by reference to the inferred intentions of the artificer even if, as in the case of the Homeric epics, we have nothing to go on in constructing those intentions other than the work itself, not even the author's name. ("Homer" may well have been a name a.s.signed to the unknown author or authors of the epics.) The concept of the implied author helps to clarify matters. One element of authorial intention is the intention that the reader consider the author a particular kind of person. The reader forms this belief by inference from the book itself. So the implied author-who might better be called the inferred author-stands between the real author and the reader. Formalists of legal as of literary interpretation-formalists of contractual interpretation, for example-stop their inquiry into authors' intentions with the implied author. One thing that makes Shakespeare's plays difficult to interpret is that it is more difficult to construct an implied author of a play than of a narrative work, and we do not have the crutch of conscious intentions to fall back upon because nothing is known of Shakespeare's personal opinions.43 If formalist criticism in the sense just explained is intentionalist, intentionalist criticism is in another sense formalist. That was Wimsatt and Alexander Nehamas, "What an Author Is," 83 Journal of Philosophy 685 (1986); A. D. Nuttall, The Stoic in Love: Selected Essays on Literature and Ideas viii (1989).

See, for example, the interesting discussion of Shakespeare's religious views by Patrick Collinson, "William Shakespeare's Religious Inheritance and Environment," in Collinson, Elizabethan Essays 219, 251252 (1994), who concludes that nothing is known about those views except what might be inferred (again nothing) from the fact that Shakespeare's father may well have been Catholic.

Beardsley's point; and here is Frank Kermode writing against the intentionalist P. D. Juhl: Somebody is quoted [by Juhl] as having maintained that [Swift's "Modest Proposal"] has "something to say" about the Vietnam War, and his application is permitted as an instance of significance. The meaning of the pamphlet, however, is [to Juhl] entirely a matter of Irish conditions in Swift's own time. But this is surely wrong: the most that could be claimed is that Swift so planned it. On Juhl's own argument, what Swift intended was what he wrote, and what he wrote is compact of ironies, opacities, interpretanda of many kinds, and the hermeneutic effort required to discover what they mean (and to so determine Swift's intention) is indistinguishable from that required for the elicitation of "significance." Swift's work reflects upon the desirability of ma.s.sacring babies as a political expedient, and so what it says is not at all entirely a matter of Irish conditions in 1729, though it applies to those conditions, as no doubt it does to the Vietnam War; it would certainly be absurd to argue that Swift meant to discuss that war, and it would be absurd to say that he did not have Ireland in mind, but these considerations are insufficient to justify Juhl's retreat into an intentionalism far more primitive than the kind he is expounding.44 Similarly, if you know anything about Yeats's life, you know that most of his love poetry alludes to (without naming) Maud Gonne. But the fact that he did not name her, and that he published his poetry knowing that most of his readers would either not know or not care who the loved one in the poem was, suggests that he did not intend the poems to be just about Maud Gonne.45 He intended her to have a representative status. In the poetry she is changed from an individual into a type.

Kermode, The Art of Telling: Essays on Fiction 206207 (1983), discussing Juhl, note 28 above.

M. L. Rosenthal, "Introduction: The Poetry of Yeats," in Selected Poems and Two Plays of William Butler Yeats xv, x.x.xx.x.xii (updated ed., Rosenthal ed. 1962). A similar argument can be made about the equal protection clause of the Fourteenth Amendment. Although the ratifiers' primary intention may have been just to prevent certain forms of discrimination against blacks, the omission of any mention of race in the clause is evidence of a secondary intention to give the clause a broader reach.

*So Swift's "Modest Proposal" can be "applied" to the Vietnam War, and an a.n.a.logy in law would be applying, to the question whether it is unconst.i.tutional to forbid h.o.m.os.e.xual marriage, a case that holds that it is unconst.i.tutional to forbid interracial marriage.46 In either case, since the author of the original text could not have intended it to govern an issue unforeseen at the time, the interpretive issue is whether the earlier text contains anything that throws light on the new issue.

The real fight, in literature at any rate, is not between formalists and intentionalists; that fight is largely, although as we shall see not entirely, semantic. The real fight for which the dispute between formalism and intentionalism is mistaken is between critics whose interests are primarily aesthetic and those whose interests lie rather in the author's life or personality, his politics, his relation to his own or subsequent times, or his ethical views as expressed or implied in his works. But there is a second real fight as well. It is between those who believe that literary texts are objectively interpretable and those who believe they are not. The issue of the constructed character of authors.h.i.+p cuts across this divide. The construction of the implied author facilitates interpretation by a.s.similating the work of literature to other purposive human actions that we interpret without being able to peek into the actor's mind. But noninterpretivists think it arbitrary (or worse) to try to construct an author. They think the effect is to conceal the truth about interpretation, which is that there are as many different interpretations as there are readers. The readers are the real authors. Anyone who has seen different productions of the same play realizes how much leeway the playwright leaves for competing interpretations; and when there is no performing intermediary-when the reader is alone with a novel or poem-the reader must play the mediating role himself. And there is more than one reader.

It will sharpen the a.n.a.lysis to give some legal and literary examples of intentionalist, New Critical, and postmodern interpretation-but New Criticism shorn of the religio-political commitments of the New Critics themselves. Confronted by the provision in the Eighth Amendment that 46. Loving v. Virginia, 388 U.S. 1 (1967).

forbids "cruel and unusual punishments," the New Critic judge might ask, what ethically satisfying meaning might this verbal artifact be made to bear? Might not capital punishment be deemed cruel because taking life is cruel, and unusual because with the greater tenderness that modern people feel about human life very few people who commit capital crimes are actually executed? (Moreover, capital punishment has been abolished in the other Western countries.) Capital punishment is therefore cruel and unusual, and should be forbidden.47 The intentionalist would be inclined to ask, rather, what the framers of the Bill of Rights were trying to accomplish by forbidding cruel and unusual punishments. He would probably conclude either that they were just trying to forbid punishments that were barbaric or that they also wanted to forbid punishments too severe to fit the crime, along with all punishments, severe or lenient, for conduct that ought not be made criminal at all.48 None of the intentionalist readings, however, supports a conclusion that capital punishment is unconst.i.tutional.

By way of a literary example I offer Yeats's great poem "Easter 1916." Here are the last three of its four stanzas: That woman's days were spent In ignorant good-will, her nights in argument Until her voice grew shrill.

What voice more sweet than hers When, young and beautiful, She rode to harriers?

This man had kept a schoo*And rode our winged horse; 47. Paul Brest, "The Misconceived Quest for the Original Understanding," 60 Boston University Law Review 204, 220221 (1980).

48.Compare Anthony F.Granucci,"'Nor Cruel and Unusual Punishments Inflicted': The Original Meaning," 57 California Law Review 839, 840842 (1969), with Ingraham v. Wright, 430 U.S. 651, 664667 (1977). See also Harmelin v. Michigan, 501 U.S. 957 (1991); Hugo Adam Bedau, Death Is Different: Studies in the Morality, Law, and Politics of Capital Punishment 105110 (1987); Stephen E. Meltzer, "Harmelin v. Michigan: Contemporary Morality and Const.i.tutional Objectivity," 27 New England Law Review 749 (1993).

*This other his helper and friend Was coming into his force; He might have won fame in the end, So sensitive his nature seemed, So daring and sweet his thought. This other man I had dreamed A drunken, vainglorious lout. He had done most bitter wrong To some who are near my heart, Yet I number him in the song; He, too, has resigned his part In the casual comedy; He, too, has been changed in his turn, Transformed utterly: A terrible beauty is born.

Hearts with one purpose alone Through summer and winter seem Enchanted to a stone To trouble the living stream. The horse that comes from the road, The rider, the birds that range From cloud to tumbling cloud, Minute by minute they change; A shadow of cloud on the stream Changes minute by minute; A horse-hoof slides on the brim, And a horse plashes within it; The long-legged moor-hens dive, And hens to moor-c.o.c.ks call; Minute by minute they live: The stone's in the midst of all.

Too long a sacrifice Can make a stone of the heart. O when may it suffice? That is Heaven's part, our part To murmur name upon name, As a mother names her child When sleep at last has come On limbs that had run wild.

What is it but nightfall?

No, no, not night but death; Was it needless death after all?

For England may keep faith For all that is done and said.

We know their dream; enough To know they dreamed and are dead; And what if excess of love Bewildered them till they died?

I write it out in a verse- MacDonagh and MacBride And Connolly and Pea.r.s.e Now and in time to be, Wherever green is worn, Are changed, changed utterly: A terrible beauty is born.

The t.i.tle, and oblique references in the text, reveal that the poem is in some sense about the Easter Rebellion in Ireland during World War I, which the British severely repressed. A New Critic might deny that the reader needs to know any more about the circ.u.mstances in which the poem was composed and to which it refers in order to extract its full meaning as a work of art. (But at least this much he must know: that green is the Irish national color, and probably also, to make sense of "England may keep faith," that England had in 1914 agreed to create an Irish Free State but that the plans had been shelved with the outbreak of the war.) It might help to have read other poetry by Yeats, though this too is problematic-for why are not the poet's other poems considered extrinsic to this one, just like his biography? This is another aspect of the baffling issue of the proper context in which to read a text. No text is intelligible in a vacuum. But once contextual factors are let in (as they must be), it is unclear what the stopping point should be. Should it be at the point where *the text is no longer gibberish? Or should the reader keep going, in search of a richer, fuller meaning-maybe a private, highly personal one? Who can say?

An intentionalist would think it important to point out that the four people discussed in the second stanza of the poem were real people and the three men-Pea.r.s.e, MacDonagh, and MacBride-were executed; that one of them, MacBride, described in the poem as "a drunken, vainglorious lout," was the ex-husband of Maud Gonne; and that Yeats, like many of the Anglo-Irish (that is, Protestants of English ethnicity), believed in Irish independence but did little for it and in fact lived most of his life in England.49 Yeats was obsessed with Maud Gonne, a firebrand for Irish independence, though herself English. The woman of the second stanza, Constance Markiewicz, was sentenced to death for her part in the Easter Rebellion, but her sentence was commuted to imprisonment and she was soon released. You can visit her home, Lissadell, near the Irish town of Sligo, where Yeats was born, and see photographs of her. Yeats believed that, like Maud Gonne, she had become poisoned by an unwomanly preoccupation with politics. Padraic Pea.r.s.e's school, referred to in the second stanza, was named St. Enda's.

All this is very interesting, and a consuming interest in Yeats's poetry makes it hard to resist extending this interest to his life and times, thereby discovering the rest of the autobiographical references in his poems. It is this natural human curiosity about the person behind the work that drives the demand for biographies of distinguished persons. You can visit Coole Park and see the lake where Yeats counted 59 swans in "The Wild Swans of Coole."50 In the gift shop attached to Yeats's nearby summer home, Thor Ballylee, you can see photographs of Major Robert Gregory, the son 49. The intentionalist critic would thus reject Edward Said's argument that the characteristic themes of Yeats's poetry can be explained by reference to his having been a colonial engaged in a cultural rebellion against imperial oppression. Edward W. Said, Culture and Imperialism 237238 (1993). As a member of the Protestant ascendancy, Yeats belonged to the colonizer, rather than the colonist, cla.s.s, a little like Camus. Yeats was less ambivalent about Irish independence, however, than Camus was about Algerian independence-paradoxically, since Yeats was from birth a reasonably well-off member of the colonizer cla.s.s, whereas Camus grew up in poverty.

50. I counted one swan when I visited it.

of Yeats's patroness, Lady Augusta Gregory, and the subject of two of Yeats's finest poems, "In Memory of Major Robert Gregory" and "An Irish Airman Foresees His Death." (You can also buy a toy leprechaun there.) You can visit Yeats's grave in Drumcliffe Churchyard, beneath Ben Bulben (Ireland's highest mountain), and read the magnificent epitaph that Yeats ordered carved on his headstone-"Cast a cold eye / On life, on death./Horseman, pa.s.s by!"

But having done all these things and more, has one come closer to the poetry? I am doubtful. The physical and human landscape that is celebrated in Yeats's poetry seems, when encountered directly rather than as mediated through the poetry, rather commonplace-and I say this as one who has been reading Yeats's poetry with undiminished pleasure for half a century. The Easter Rebellion was a harebrained escapade that would have been a political disaster had it not been for Britain's foolish decision to execute the rebel leaders-and perhaps for Yeats's poem. Of course for some people a work of literature is merely a window on the author's life and times, a biographical and historical doc.u.ment, as in Ziolkowski's book on law and literature, cited in previous chapters. They are ent.i.tled to this interest, but they are missing a lot. Genius is borne in frail vessels amid drab surroundings. The only thing remarkable about Yeats or most of his acquaintances and friends was his poetry, which is a good deal more than the projection of his life and times onto the printed page and is diminished when used as a windowpane or telescope.

"Easter 1916" is a challenging case for my thesis, since it is undoubtedly a notable doc.u.ment in the history of modern Ireland. But its major interest, for me at any rate, lies elsewhere-in the poem's dramatization, made emotionally compelling in part by the lilting rhythm, of the transformative effects of revolutionary movements on human personality. These effects are fearfully mixed (hence the refrain "terrible beauty"). On the one hand the drunken, vainglorious lout has resigned his part in the casual comedy; on the other hand a protracted sacrifice can make a stone of the heart and be futile to boot, for England may keep faith for all that is done and said. The penultimate stanza ("Hearts with one purpose alone . . .") is the least political and the most beautiful.

I have a similar reaction to Marvell's ode to Cromwell, another political poem. What is striking and memorable in the poem has nothing espe *cially to do with Cromwell but has rather to do with the figure of the representative Great Man; the poet's ambivalence toward him; the idea that greatness (embodied in both Cromwell and Charles I, though in very different ways) is bound up with theatricality51 ("That thence the royal actor born [Charles I] / The tragic scaffold might adorn: / While round the armed bands / Did clap their b.l.o.o.d.y hands"); and the imagery of ruthless, thrusting power, capped by an invocation of Caesar, rebel and dictator: So restless Cromwell could not cease In the inglorious arts of peace, But through adventurous war Urged his active star.

And, like the three-forked lightning, first Breaking the clouds where it was nursed, Did through his own side His fiery way divide.

Then burning through the air he went And palaces and temples rent: And Caesar's head at last Did through his laurels blast.

No one can prove that an aesthetic or formalist approach to the poetry of Yeats or of Marvell is better than a biographical, historical, or political one. Some people are more interested in writers than in what is written and in the past more than the present, and some see everything in life through the lens of politics. All I am sure of is that the interpretive issue with regard to the cruel and unusual punishments clause is different from the interpretive issue in the poems that I have discussed, because the clause plays a different role in our lives than does poetry. The clause was added to the Bill of Rights, with little debate or discussion, to mollify 51. Notice the parallel allusion in "Easter 1916" to resigning one's "part / In the casual comedy."

people worried that the central government created by the Const.i.tution might imitate the British practice of using criminal punishment to intimidate political opponents. No effort to particularize the prohibition was made; the framers were content to appropriate the term "cruel and unusual" from the English Declaration of Rights of 1689 as a general, summary formula. Particularizing would have been time-consuming and might have sparked debilitating controversy; it is easier to agree on generalities than on particulars. The courts would be there to particularize the prohibition if that became necessary. Sufficient unto the day is the evil thereof might be the motto of the legislative process. The forging of a consensus, or even just of a majority agreement, in a diverse group may be impossible unless some disputes can be papered over with general language, leaving resolution of them, should they arise, to the courts.

Another reason for not particularizing the const.i.tutional prohibition, a reason that hindsight makes clear was vital to its survival as a meaningful limitation on punishment, is that to do so would have reduced its adaptability to social and technological changes-changes in society's conceptions of cruelty, in the frequency of particular punishments, and in the technologically feasible range of methods of punishment.

General as the language of the clause is, we cannot be cavalier about the authors' or ratifiers' intentions. When a court reads the Const.i.tution it is looking, if not for guidance, at least for some limits on judicial discretion. It would find none if it felt free to give "cruel and unusual punishments" any meaning that the words permit as a matter of semantics. A New Critical approach might treat the Eighth Amendment as delegating to the courts untrammeled power to regulate criminal punishments. The standards that Ronald Dworkin wants courts to use in deciding what punishments to forbid are philosophical rather than literary. But there is no more agreement on the big issues in political and moral philosophy than there is in aesthetics. Some philosophers and philosophically minded lawyers believe that justice requires capital punishment, which was Kant's view, and others that justice forbids it.52 52. See, for example, Ca.s.s R. Sunstein and Adrian Vermeule, "Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs," 58 Stanford Law Review 703 (2005); Carol S. Steiker, "No, Capital Punishment Is Not Morally Required: Deterrence, *Besides being protean, Dworkin's approach imposes an intellectual burden on judges-that they be philosopher kings-which none is fit to bear. (Significantly, he calls his model judge "Hercules.") The New Critics could produce a convergent interpretation of a literary text because they shared aesthetic values that told them what interpretation would make the text the best aesthetic object it could be. A legal counterpart to New Criticism could not produce convergent interpretations of texts without a similar consensus on the relevant values. When by means of selection, training, or hierarchy, professional or official, people can be made to think alike or like-thinking people come to control the interpretive process, interpretations of even an ambiguous text will converge. "There is nothing in principle to prevent the emergence of a unified legal interpretive community. All that is required is that a number of a.s.sumptions be so firmly held that they are no longer regarded as a.s.sumptions, but as truths so unchallengeable that the determinations (of fact, const.i.tutionality, etc.) they entail would be universally recognized and acknowledged. As an inst.i.tution the law would then be in the happy state (if it is happy) enjoyed by certain branches of the physical sciences."53 American law is not in that "happy state," and the tools of New Criticism will not carry it there.

Nor will intentionalism. A sophisticated legal intentionalism recognizes that the framers might have intended to authorize the regulation of activities they knew they could not foresee-intended in other words that, within the limits imposed by the text, the intentions of others, such as the judges who would be applying the framers' handiwork in the distant future, should govern rather than the framers' own mental pictures of the future. E. D. Hirsch, the leading intentionalist literary critic, gets this exactly right in a brief discussion of statutory interpretation.54 But this ac- Deontology, and the Death Penalty," 58 Stanford Law Review 751 (2005); Tom Sorell, Moral Theory and Capital Punishment (1987); Ernest van den Haag and John P. Conrad, The Death Penalty: A Debate (1983).

Stanley Fish, "Interpretation and the Pluralist Vision," 60 Texas Law Review 495, 498 (1982). Compare A. W. B. Simpson, "The Common Law and Legal Theory," in Oxford Essays in Jurisprudence (2nd series) 77, 95 (Simpson ed. 1973), arguing that the determinacy of the English common law in its heyday was due to the social and educational uniformity of the judges.

Hirsch, note 28 above, at 124125. See also Hirsch, "Counterfactuals in Interpretation," 3 Texte: Revue de critique et de theorie litteraire 15 (1984). That the framers of the Const.i.tution knowledgment may largely dissolve intentionalism as a usable interpretive strategy (no surprise in light of the interpenetration of formalism and intentionalism)-largely, but not entirely, because the problem of intention about intention arises mainly when legal provisions are couched in vague or general language. When, as with the age-35 clause, the provision is specific, the authors' intentions usually are obvious.

The effect of generality on interpretive freedom can be seen in poetry as well. Consider the famous couplet that ends the first stanza of Yeats's poem "The Second Coming": "The best lack all conviction, while the worst / Are full of pa.s.sionate intensity." Although poetry tends to be concrete and particular, Yeats here uses general language to create an aphorism of broad applicability. Many people reading it for the first time are put in mind of the behavior of the appeasing democracies in the 1930s toward the fascist powers. Since the poem was written in 1919, Yeats could not have been writing about the political situation in the 1930s. But there is no objection to saying that the poem is "about" that situation, just as there is no objection in principle to reading Kafka "prophetically." Swift's "Modest Proposal," in contrast to "The Second Coming," purports to be about Ireland, so it takes a bit of a wrench to think it is also about Vietnam. No similar wrench is necessary with Yeats's couplet, because it is not topical. Moreover, the tone of "The Second Coming" is prophetic; if one of its prophecies happens to come true, the poem is ready at hand to "mean" it.55 Broadly drafted const.i.tutional provisions have the same property of ready applicability to unforeseen situations.

indeed meant to distinguish between the "intent" of the doc.u.ment and the "intentions" of the authors (that is, how the authors themselves would have decided a specific case arising under the Const.i.tution, knowing only what they knew when they wrote it), and to allow only the former to guide interpretation, is argued in H. Jefferson Powell, "The Original Understanding of Original Intent," 98 Harvard Law Review 885 (1985). For counterargument, see Charles A. Lofgren, "The Original Understanding of Original Intent?" 5 Const.i.tutional Commentary 11 (1988).

55. Robert H. Bork prefaces his book Slouching towards Gomorrah: Modern Liberalism and American Decline (1996), a jeremiad of cultural pessimism, with "The Second Coming," reprinted in full, and comments: "The image of a world disintegrating, then to be subjected to a brutal force, speaks to our fears now . . . The rough beast of decadence, a long time in gestation, having reached its maturity in the last three decades, now sends us slouching towards our new home, not Bethlehem but Gomorrah." Bork, id. at vii. This is vivid, but misreads the *The problematic nature of intentionalist criticism is further ill.u.s.trated by the debate56 over the meaning of this unt.i.tled lyric by Wordsworth: A slumber did my spirit seal; I had no human fears: She seemed a thing that could not fee*The touch of earthly years.

No motion has she now, no force; She neither hears nor sees; Rolled round in earth's diurnal course, With rocks, and stones, and trees.

The debate is over whether the reader is meant to feel horror at the death of Lucy (the name of the young girl, as we may infer from the surrounding poems)57 or to feel consoled. There is extrinsic evidence that at the time Wordsworth wrote the poem he was a pantheist. He thought the rocks and stones and trees were alive, which suggests that he meant the reader to be consoled rather than distressed by the prospect of Lucy's being rolled around with them.58 If this was his intention, it was imperfectly achieved. The image of the inert, deaf, dumb Lucy being whirled around forever "with rocks, and stones, and trees" (the rhythm of the last line creating a sense of dizzying circular motion) is grim. If we want to save the poem as an object of aesthetic value we can impute an unconscious intention at war with and overcoming Wordsworth's conscious desire to cele poem.The "rough beast"("And what rough beast,its hour come round at last,/Slouches towards Bethlehem to be born?") is not impelling anyone toward Bethlehem; "slouches" is not transitive. What is being depicted is the Second Coming of a de-Christianized Christ conceived not as the Prince of Peace but as the violent disturber of mediocrity and cowardice (". . . but now I know / That twenty centuries of stony sleep / Were vexed to nightmare by a rocking cradle"). The "rough beast" is a redemptive figure, though an unorthodox one.

Discussed in (among other places) Hirsch, note 28 above, at 227230, and Walter Benn Michaels, "Against Formalism: The Autonomous Text in Legal and Literary Interpretation," 1 Poetics Today 23, 2930 (1979).

Efforts to find a historical model for Lucy have failed. Mary Moorman, William Words-worth: A Biography: The Early Years, 17701803 423428 (1957). This process of inference from surrounding poems, by the way, ill.u.s.trates one of the functions of the author construct: to improve understanding by comparison with other works reasonably a.s.sumed to have the same general outlook and therefore to be pieces in the same ji