A Culture of Authenticity versus a Jurisprudence of Principle


Our literary, journalistic, and thespian culture is, to put it mildly, not hospitable to conservatism in general or the legal formalism with which conservatives have long been associated. The obvious, but shallower reason, for this clash, is that our cultural elites of every kind are overwhelmingly left-liberal. The deeper reason is that much of our culture is so driven by questions of personal identity and authenticity that it has trouble even comprehending the impersonality of the principles that are at the heart of republican constitutionalism.

The Originalist, a play about Antonin Scalia, at the Arena Stage illustrates both of these problems. The conceit of the play is that Scalia has hired a liberal law clerk, Cat, and they argue about different cases. But the author does not spend nearly enough time explicating originalism or for that matter any other jurisprudence to make the play a battle of ideals. As I say in my review for City Journal, the playwright John Strand is no Tom Stoppard and “has written an intellectual ghost story, in which shadows of ideas fret their minutes on the stage.”

It almost goes without saying that play trots out the usual stereotypes of conservatives. The Federalist Society member is portrayed as a buffoon who starts a food fight and tries to use Cat’s personal life against her. But the play also reflects a politics of authenticity rather than a politics of reason where personality substitutes for principles. Ultimately, the storyline argues that what makes Cat and Scalia both tick are their relations with their fathers.

As I say at the end of my review:

The play’s treatment of biography as destiny reflects powerful currents of our time. The media persistently dissect motivations and psychology at the expense of principles and ideas. Much of the coverage of same-sex marriage, for instance, has focused on what it will mean for the various justices’ legacies.

Nothing is more conventional in an individualist culture than proclaiming that only the peculiar passions and desires of individuals matter. Our Constitution is founded on the premise that abstract principles, not passions, best restrain government. Most of the Constitution’s core principles—such as federalism and the separation of powers—don’t establish political objectives, only the dull procedures by which we decide them. But in an age when everyone must celebrate his own authenticity, a jurisprudence of self-restraint and impersonal discipline sails against the wind.

Reader Discussion

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on May 26, 2015 at 21:54:19 pm

John Strand ... “has written an intellectual ghost story, in which shadows of ideas fret their minutes on the stage.”

If I recall correctly, the John Nash biopic A Beautiful Mind failed to accurately depict a Nash Equilibrium -- the intellectual innovation for which Nash was most celebrated.

That said, perhaps Strand's loss is McGinnis's gain: Could we write a better play in which jurisprudential theories clash in an illustrative and enlightening way?

For what it's worth, I wouldn't dismiss the idea of depicting Justices as being to some extent products of their environments and have engaging, idiosyncratic, human qualities. It would seem to offer more dramatic potential than a pure clash of ideas. Is it really a slander to suggest that Scalia might be motivated by both intellectual and personal dynamics?

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on May 27, 2015 at 17:40:20 pm


This is thought provoking and useful--thank you for writing it.

There are many strands to pursue here, all of which deserve greater attention. One is the tension between rationality and emotion. Contemporary science now suggests that rationality is not possible without emotion. I would refer you here to the work of economist Jon Elster, and the technical philosophical work (as opposed to her forays into political commentary) of Martha Nussbaum.

So the notion that rationality is attained by suppressing emotion--an idea expressed in the latitudinarian ethos of the late 17th and 18th century Church of England, and in Arminian theology more generally--has in recent decades been deeply criticized. That Anglican/Episcopalian ethos was incredibly influential among numerous of the founders, so even if it is now criticized, it is correct to point to its role in shaping late 18th century American constitutional thought.

But, as scholarship in the last few decades has powerfully illustrated, this C of E ethis was not the only game in town. In particular, the Scots Enlightenment asserted the connection between the right ordering of emotions and the potential for human reason to be realized. You do not have to go so far as Hume's dictum that "reason is the slave of the passions" to find a deep influence of Scots Enlightenment thought on the constitutional thinking of guys like James Madison, but much more so on that of James Wilson, Alexander Hamilton, and the hard core Pennsylvania and New York nationalists more broadly. All of these guys argued for the civilizing effects of commercial society, not for the sake of material prosperity but for the proper ordering of social dispositions.

I do not think any of this invalidates your observation that "impersonal principles" are Important to Republican constitutionalism. But I do think they make clear that there is a great deal more going on in republican constitutionalism than just impersonal principles. I suspect you would agree with this. But the way you framed the thought, to my reading, suggests that these impersonal (rational left unspoken, but I think implicit) principles are head and shoulders the most important element. And I think if we leave it there, we risk misunderstanding the constitutional thought of an important group of American republican thinkers who were instrumental in drafting and ratifying the constitution.

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Kevin R. Hardwick

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