Segue comentário de Stanley Fish sobre a discussão da intenção interpretativa e o sobre originalismo.
Discussões acadêmicas e seu valor - "tão paupáveis quanto exotéricas"?
What is academic work?
In previous columns I have argued that academic work is distinctive — something and not everything — and that a part of its distinctiveness is its distance from political agendas. This does not mean that political agendas can’t be the subject of academic work — one should inquire into their structure, history, etc. — but that the point of introducing them into the classroom should never be to urge them or to warn against them. I have never felt that my attempts to explain this point have been entirely successful, but I am moved to try again by the recent experience of a conference that, I believe, exemplifies the point in action.
The conference was held last weekend at the University of San Diego School of Law. The subject was originalism — that brand of interpretation that demands fidelity to original meaning, identified either with the standard definition of words at the time of drafting and/or ratification or with the intentions of the drafters. The alternatives named in my previous sentence represent “schools” of originalism. When originalists gather or regale one another in print, much of the energy is devoted to debating which version of originalism is the true one. In these debates the contending parties cite examples in support of their position and the examples come from constitutional law cases. Those cases center on substantive questions like “Is the death penalty an instance of cruel and unusual punishment?” or “Do individual citizens have a right to own guns?” or “Does the category of free speech include campaign expenditures?”
At this conference, the emphasis was not on those questions, but on the question of what interpretive method is likely to yield good answers. What was being debated were not outcomes (how would you like this case to turn out) but general principles of procedure. What might be hot-button issues at a conference held to debate policy were only the materials on which the skills of academic inquiry were being practiced and sharpened.
Consider as an illustration the first sentence of the opening paper: “Our basic conception of the Fourteenth Amendment is all wrong.” That’s a pretty big statement and one might expect big things to follow. And they do, in a way. The author declares that a number of landmark cases were wrongly decided and argues that more judicial decrees should be subject to a congressional override.
However, these assertions are directed not at judges and legislators in an effort to move them to a course of action (although that may happen down the line) but at the other participants in the conference and the scholars not at the conference who write about these matters the law reviews. The paper does not say to its audience, “Go out and change the world,” but “Here is my take on these issues and what do you think?”
The conference format reflected its academic (not policy) imperatives. A presenter summarized his or her paper. A designated commentator posed sharp questions. The presenter responded and then the floor was opened to the other participants, who posed their own sharp questions to both the presenter and the commentator. The exchanges were swift and spirited. The room took on some of the aspects of an athletic competition — parry, thrust, soft balls, hard balls, palpable hits, ingenious defenses and a series of “well dones” said by everyone to everyone else at the end of each round.
The kind of questions asked also marked the occasion as an academic one. Not “Won’t the economy implode if we do this?” or “Wouldn’t free expression rights be eroded if we went down that path?”, but “Would you be willing to follow your argument to its logical conclusion?” or “Doesn’t that amount to just making up the law as you go along?” These questions were continuations of a philosophical conversation that stretches back at least to the beginning of the republic; and while they were illustrated by real-world topics (the pardon power, habeas corpus, the electoral college), the focus was always on the theoretical puzzles of which those topics were disposable examples; they were never the main show.
After it was all over, everyone pronounced the occasion a great success; not because any substantive problems had been solved, but because a set of intellectual problems had been tossed around and teased out by men and women at the top of their game. The pleasure was palpable and a bit esoteric, for only a small number of people in the world care whether originalism is a textualist or an intentionalist enterprise; but we all cared and we were more than willing to do the hard work involved in trying to get things straight. We were all willing and eager, that is, to do academic work.