A Poetic For Law: Constitutional Theory as Metaphor
Author | Simeon C.R. McIntosh |
Profession | Professor Emeritus of Law at Howard University, Washington, DC |
Pages | 169-240 |
A Poetic For Law:
Constitutional Theory as
Metaphor
Introduction
The bicentennial of the Constitution is certainly an august occasion and
warrants, among other things, our deep reflection on the theoretical discourse
that has attended the explication of the Constitution, ever since its adoption.
This endeavor, I believe, is compelled in light of the political paradox that
marked the founding of the Constitution. Not all were present and accounted
for. Indeed, the act of writing the Constitution, thereby narrating an ideal of
political organization, was marked by the conscious effort to exclude some. It
cannot be gainsaid, therefore, that our reverence for the Constitution should
not enlist our unthinking deference to the views of any, particularly the (very)
founding fathers whose choice it was to exclude many from the text.
But, today, we all claim the Constitution’s protection. It follows, then,
that one of the supreme challenges to American constitutional theory has
ever been to account for the equal presence of all within the text. It is my
contention, however, that constitutional discourse has not met this challenge
well. Indeed, American constitutional theory has rather become moribund
in its signal failure to develop a defensible Grand Theory of Constitutional
interpretation. This chapter develops such a theory, in order to engender a
more comprehensive reading of the text than it has generally received. It is
principally concerned with some of the theoretical and philosophical problems
of constitutional interpretation, and takes as its fundamental epistemological
premise the notion that the Constitution is a symbolic and metaphorical text
that invites a mode of reading appropriate to its nature as such.
In the Poetics, Aristotle defined metaphor as ‘the application to a thing
of a name that belongs to something else, the transference taking place from
genus to species, from species of genus, from species to species, or on grounds
of analogy’1 (i.e. structural similarity).
Reading Text and Polity
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What takes place here, cognitively, is that we construe something from
the point of view something else. In this respect, Aristotle’s definition may be
extended to include models and theories. Thus, by transferring the ideas and
associations of one system or level of discourse to another, metaphor allows
each system to be perceived anew from the view point of the other.2
In literary theory, for example, it is generally understood that the poem
or novel functions metaphorically, for it may creatively redescribe reality,
subjecting that reality to a ‘perspectival’ interpretation, thereby reshaping our
experience of it. In short, poems are creations that do not so much duplicate
as transform the ordinary world.3 And in this sense, the semantic structure
of the simple, explicitly local metaphorical statement becomes a paradigm
of the semantic structure of poetic language.4 But the poem or novel need
not redescribe an existing reality; it may construct its own reality, thereby
raising the perplexing ontological question: What is this ‘thing’ that never
existed? In this respect, the work cannot stand as a mimetic representation of
a pre-existing reality, or state of affairs; yet, it may have constructed a thick
conceptual system through whose meanings we view or reinterpret reality.5 It
is, in a word, metaphorical; and like any metaphor, the poem or novel will
have its scope, its hierachy of structures, its regulating or organizing principles,
its focus, and its commitment;6 its network of frames of references.7 For the
poet or novelist would have created a metaphorical model, a text, which
in effect, has reinterpreted the history and common understanding of the
reader’s world and life, as if it were composed and laid out like another text.8
In this chapter, I argue that the Constitution functions metaphorically,
much like the poem or novel, even though its language marks no obvious
similitude or analogy. For it posits realities and possibilities; it constructs a
conceptual system through which we view and interpret human behaviour.
In sum, it is a particular perspective on our ‘world’; it organizes our vision
of a particular area of human affairs, while, at the same time, providing the
conceptual structure for our apprehending that area of affairs.9
The French phenomenologist Paul Ricoeur in his texts, The Rule of
Metaphor and Interpretation Theory: Discourse and the Surplus of Meaning, has
offered, what I consider to be the most sophisticated discussion to date, on
this rather difficult subject of metaphor; and I draw heavily on his works.
Ricoeur questions the adequacy of Artistotle’s theory, claiming that the latter
has centered his conception of metaphor on a semantics that takes the word or
the name, rather than the sentence, as its basic unit.10 For, although Aristotle’s
theory may be helpful in identifying certain statements as metaphorical, it
does not help us to account for the production of metaphorical meaning,
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A Poetic For Law: Constitutional Theory as Metaphor
or appreciate the full cognitive value of metaphor. For Ricoeur, it is the
metaphorical statement as a whole that carries meaning, and not the
individual word or name. Thus, his strategy is to revise Aristotle’s definition
by attaching the name-related aspect of metaphor to a discursive structure,
for he sees metaphor as a rhetorical process by which discourse unleashes the
power that certain fictions have to redescribe reality:11 A tensional theory of
metaphor in opposition to a substitution theory, like Aristotle’s. Thus, from
this conjunction of fiction and redescription, we come to understand that the
metaphoricity of the sentence, or the entire discourse, is not in the word or
name, but rather in the copula of the verb ‘to be’. The predicative value of
the verb ‘to be’ is not only rational, but existential as well: the metaphoric ‘is’
tells us ‘what is’ is redescribed by signifying both ‘is not’ and ‘is like.’12 What
is of the utmost significance here for my paper is that Ricoeur’s work makes
it possible for us to understand how certain texts, the complex entities of
discourse that obviously go beyond the individual sentence, may be viewed as
theoretical models or heuristic fictions for describing reality or certain areas
of human experience.
But only certain texts would seem to have this power, and, therefore,
can appropriately be read as extended metaphors. These would mainly be
literary texts – or, at least texts that do not purport to offer a direct or literal
description of some determinate reality by which the truth (or falsity) of
their propositions can be measured or verified. The literary work (poem or
novel, say,) redescribes reality or an area of reality according to its particular
vision and visionary language. It tells us reality is like ‘this’, and, in this sense,
enjoins us to see the world or reality ‘as if’ it were in fact ‘this way’. This,
in fact, is how the ‘local’ metaphor works. For example, in the use of the
expression: ‘My love is a red, red rose,’ we are enjoined to view romantic love
in a particular light; to consider how the loved one may be seen as having
those qualities which the rose has come to symbolize in customary linguistic
usages of Western culture.13 Another way of putting this argument, then,
is to say, following Ricoeur, that the metaphorical expression possesses a
structure that is likened to the basic structure of the literary work, the poem,
for example. So, just as the metaphorical expression would capture its sense
or meaning as metaphorical midst the ‘ruins’ of its so-called literal sense,
and, at the same time, achieve its reference upon the ruins of what might be
called (in symmetrical fashion) its literal reference, so, also, does the literary
work, read as an extended metaphor or symbol. In other words, the semantic
impertinence, instanced in the local metaphor above, essays the impossibility
of making much sense of the words taken in their usual or current acceptation.
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