Lottery Tickets and Original Understanding

Stendhal in 1830 compared writing to buying a lottery ticket. The payoff? “To be read in 1930.” Critics have clucked admiringly about how correct Stendhal was in his prediction: after decades of neglect, his novels became 20th century cult objects. The Red and the Black and The Charterhouse of Parma offer grateful matter for literary critics interested in “reader reception”: the history of how a work changes as later generations of readers discover it. As the horizon recedes before the traveler, so the “horizon of reading” of a book changes over time.

Stendhal understood that trying to bind future readers made no sense. You knew nothing about their education, their prejudices, their sense of humor. There was simply no way to know how they would read you, in what context, out of what concerns, with what applications to their own lives.
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If legal interpreters read more lit crit, they might understand that the “originalism” more and more touted as the only defensible method of constitutional interpretation literally makes no sense. We are not men of 1787 (women of 1787 had no say in any case), the horizon of reading has evolved, and with it textual meanings. You can never get back to what Justice Scalia calls the “original understanding.” Better, like Stendhal, to revel in that fact, to find a liberation in the gap in time and beliefs and manners between writer and audience. As he wrote: “What an encouragement to be truthful and simply truthful! That’s all that matters.”

Peter Brooks

Comments

[Jason Steed]

Well put. As a fellow lit crit, I couldn't agree more. And as a lit crit who is looking to go to law school this fall, I am intensely interested in this debate over textual interpretation and the law. I'm aware of the critical theory movement -- though not well versed in it -- but I wonder: why is it still on the fringes of legal thought? (It seems to be, anyway -- maybe I'm wrong and it isn't.)

Coming from a lit crit background, I remain somewhat amazed that "originalism" and other versions of author-intent driven methods of interpretation are so prevalent and dominant in legal thought.

What gives?

And for someone like me, who is interested in an academic career, and who is coming at the law from that lit crit background (and therefore has strong sympathies/affinities for critical legal theory)...where is the best place to go to law school?