In an uncharacteristically thoughtful and even respectful critique of Justice Thomas’s dissent in Grutter, Stanley Fish wheels out his familiar principles-are-impossible-and-besides-they’re-bad argument. Fish is on his best behavior here. I’m impressed with how hard he tries to be fair to Thomas, but, alas, despite his best effort he can’t quite bring it off. (Thanks to Joanne Jacobs for encouraging me to deal with this latest Fish.)
After properly and persuasively dismissing the Dowd-y argument that Thomas’s opinion was simply the venting of a guilty incompetent, Fish attempts a more elevated and serious critique.
[a] proper assessment might begin by challenging the assumption that neutral principles, abstracted from history, are capable all by themselves of deciding issues that arise only in historical circumstances.
The equal protection clause, after all, did not arise out of a desire to outlaw discrimination per se — discrimination with a capital D, discrimination in the abstract — but out of a desire to outlaw a particular form of discrimination….
One of Fish’s techniques, on display here, is to assume and assert something that is in contention and thus requires evidence and argument. I would argue — and I assume Justice Thomas would as well — that Thomas’s views are not at all “abstracted from history.” His interpretation of history is simply different from — and I believe better than — Fish’s. On this view (which is mine whether or not Justice Thomas shares it, although I suspect he does), the principle of neutral non-discrimination is virtually embedded in, and thus rises almost inexorably from, our history. It is not limited to the text of the 14th Amendment, which in fact did not command color-blindness, but stretches back to the official neutrality required by the presence of a multiplicity of religious sects in the eighteenth century and forward to the same neutrality required by the multiplicity of races and ethnicities that resulted from later immigration (both voluntary and involuntary). (I have developed this point at greater length here, where I argued that not only the text of our Constitution but the very constitution of our society requires the separation of race and state with the same force and for the same reasons that it requires the separation of church and state.)
Not only do I find Fish’s history thin and unpersuasive, but I also find it quite odd coming from someone of his political views and philosophical persuasion. Fish the Historian purports to tell us the “desire” from which the equal protection clause arose, presumably because he believes the current meaning of equal protection is determined by, i.e., limited to, the “desire” of … well, of someone or ones — its authors, supporters in Congress, voters in the states, whatever, who wrote and passed the 14th Amendment. So, Fish the literary critic who has built his career by arguing in effect that texts have no inherent meaning, that principles mean only what their advocates use them to mean, puts on his History hat, becomes an advocate of a superficial and simplistic version of original intent, and all of a sudden is given the ability to discern that the meaning of important Constitutional text is determined not by what it says or by the principle it embodies but by the “desire” — which, fortunately, he can also discern — out of which it arose.
I frequently disagree with the moral uses to which Ronald Dworkin puts his trademark interpretive method of reading the Constitution morally, but his method is quite useful in demolishing the silly originalism exhibited here by Fish. (Many of you reading this will understand Dworkin far better than I, and for that reason among others I will not attempt to summarize his theory of interpretation here.)
Let’s just leave it at this: if we took Fish the Historian seriously, this would be the place to ask him if he believes racial segregation violates the equal protection clause. After all, it was the “desire” of the framers of the equal protection clause to protect racially separate schools, among other things, that led them to reject the color-blind language proposed by radicals like Thaddeus Stevens and Charles Sumner.
But fortunately we don’t have to take Fish the Historian seriously. Other observers, such as the perceptive Peter Berkowitz, have noted that Fish seems “willing to say anything — no matter how internally inconsistent — to win an argument.” But we don’t even have to rely on other observers. As I noted here, we have been informed by no less an authority on Stanley Fish than Stanley Fish himself that he will proudly say anything to win an argument … and its opposite to win another argument.
“The passion I display when debunking the normative claims of neutral principle ideologues is unrelated to the passion I might display when arguing for affirmative action or minority-enhancing redistricting. To be sure, there might be a contingent relation in a given instance if the outcome I dislike was brought about in part by neutral-principle rhetoric; I might then attack the rhetoric as part of my attack on what it was used to do. But I might turn around tomorrow and use the same rhetoric in the service of a cause I believed in. Nor would there be anything inconsistent or hypocritical about such behavior. The grounding consideration in both instances . . . would be my convictions and commitments; the means used to advance them would be secondary, and it would be no part of my morality to be consistent in my handling of those means.” [Fish, The Trouble With Principle (Harvard, 1999), p. 8]
“‘Free Speech’ is just the name we give to verbal behavior that serves the substantive agendas we wish to advance…. Free speech, in short, is not an independent value but a political prize, and if that prize has been captured by a politics opposed to yours, it can no longer be invoked in ways that further your purposes, for it is now an obstacle to those purposes…. [S]o long as so-called free speech principles have been fashioned by your enemy . . . , contest their relevance to the issue at hand; but if you manage to refashion them in line with your purposes, urge them with a vengeance.” [Fish, There's No Such Thing as Free Speech...and it's a good thing, too (Oxford, 1994), pp. 102, 114. This essay has been widely reprinted.]
Fish concludes by noting that
[a]lthough Justice O’Connor, like her colleagues, speaks, and is expected to speak, in the timeless language of principle, she is in fact alert, as her deference to the briefs from industry and the military shows, to the real-world consequences of what she decides.
Fish prefers Justice O’Connor’s “ad hoc, pragmatic reasoning” to Justice Thomas’s principle not because he admires her epistemology but because he likes the result of it in this case. As he himself has frankly acknowledged, however, if the Court justified a result he did not like with the same ad hoc pragmatism he professes to admire here, you can be sure he would not only protest with apparently principled arguments, but he would “urge them with a vengeance.” Indeed, I strongly suspect that a primary reason Fish rejects principle across the board is that he understood very early in the debate over affirmative action that it is difficult, if not impossible, to construct a convincing principled argument justifying racial preferences, that to defend preferences it is necessary to discredit principle. He does so intentionally, in theory; SAnDra does so unintentionally, in practice.
With friends like Fish, affirmative action doesn’t really need any critics.