Elaine Scarry, in the paper prepared for this Conference, presented a most interesting argument concerning the control of nuclear arms in relation to the social contract, and the way in which a notion of "distribution" of the authorization over our nation's arms belongs to the Second Amendment. I won't in this comment address directly the crucial constitutional and moral issues raised in Elaine Scarry's paper. Rather than responding to the substance of her argument, I will try to say a word about its form, in the light of the putative topic of this session: Constitutional Narratives. That is, I'll offer a brief meta-commentary attempting to relate Professor Scarry's argument to the narrative forms that it, and other constitutional arguments, tend to activate and to deploy. Yet this may in the end work to an understanding of the substance of her claim.
Professor Scarry's argument immediately takes us back to the ratification debates, to what she at one point calls the "early writings" on the subject of the distribution of arms throughout the population. Her argument is not "intentionalist" in a narrow sense, it might be better described as "contextualist." But both intentionalist and contextualist arguments about the meaning of constitutional provisions necessarily make the same general initial gesture: a return to origins, to the moment of the emergence or creation of meaning-in short, a return to the beginning, to the moment the story starts. No doubt one finds some version of this gesture at the outset of any constitutional argument, in any Supreme Court opinion, for instance, where it is vital to establish that the present ruling is in fact the product of a coherent narrative line of connected precedents rooted in correctly identified constitutional origins. (And a dissenting opinion will contend that the majority has misderived the narrative, got its origins wrong, written new law rather than building on the old.) Like the mythological Anteus, everyone arguing about constitutional interpretation must touch the ground of the Constitution, and its own grounding, in order to gain strength for the coming battle.
Not only is this gesture typical of constitutional narratives, however, it is also typical of narrative as a whole, as a genre, as one of our principal ways of ordering discourse about the world. Narratives are constantly seeking to ground outcomes in origins, taking us back to primal moments that determine the future: which is one reason why, as Aristotle pointed out, memory is a vital faculty in the understanding of narrative-narrative makes no sense unless one is able to connect ends to beginnings. What is curious about this gesture is that it may in some sense be a cover-up, a masking of the true mechanism of narrative, which really starts from the desired or presumed end, and works backwards, deriving beginnings, origins, and the events of the middle, from the end. At least, that is a theory about the procedures of narrative proposed by such diverse commentators as J.-P. Sartre, Frank Kermode, and Walter Benjamin, and, in a certain reading, Aristotle himself. As Roland Barthes once suggested, narrative plays on a certain willed confusion of the post hoc ergo propter hoc, ostensibly claiming that subsequent events are entailed by prior events, but in fact operating by a reverse logic, postulating prior events in terms of outcomes. Telling a story-as opposed to living it-is always retrospective, delivered from the point of view of the end to which it tends.
The Rhetoric of Constitutional Narratives: A Response to Elaine Scarry,
Yale J.L. & Human.
Available at: https://digitalcommons.law.yale.edu/yjlh/vol2/iss1/10