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

170

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,

171

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.