Living in a Law Transformed: Encounters with the Works of James Boyd White

[5] Slow Reading and Living Speech: James Boyd White on What a Constitutional Law Opinion is For

The first time that I engaged deeply with James Boyd White’s work, it had nothing to do with the law: I read his book on learning to read the seventeenth-century poet George Herbert, “This Book of Starres.”[1] I love poetry, and in the religious tradition that Herbert, White, and I share, Herbert is viewed as a saint. I knew about Jim White of course, as the leading practitioner of “law and literature,” and so when I came across his book on Herbert I felt something like an obligation to buy it. I did so, however, without much conviction that I would ever do more than crack the cover and read a few pages, for I knew that Herbert’s poetry, whatever its technical brilliance, expressed the sort of saccharine piety that is everything I don’t like in religious writing. It seemed extremely unlikely that Prof. White, however distinguished a legal scholar he might, could have anything interesting to say about the early modern equivalent of the verses you find on a greeting card.

I don’t know with certainty how long it took me to realize that however boring Herbert might be, Jim White is a great and challenging thinker and writer—I was probably hooked by the time I finished the preface, in which Jim describes “the reading of any book of poetry, or prose too, as a kind of language-learning, and of writing as a kind of language-making.”[2] What White seemed to be saying resonated deeply with my own experience of the law, and of the theology in which I was trained before I became a lawyer. Equally exciting, if a little difficult to credit given my view of Herbert, was White’s remarkable claim that for him the result of reading Herbert attentively had been “to shift the way I perceive and live in the world, a transformation of the self.”[3] It was without doubt only my engagement with Jim that kept me going.

I don’t recall exactly when my skepticism about White’s subject vanished, though I vividly recall the particular theme in White’s “slow reading” (as he described it[4]) that opened my eyes to Herbert’s towering genius as a poet and, for that matter, a religious thinker: it was the way in which White’s writing patiently led me to see that far from being saccharine or superficial, or even merely technically adept, Herbert’s poetry draws one within the mind and heart of a person wrestling with the deepest issues of identity and meaning, and that in part the poems do so by the way in which Herbert gives voice to conflicting thoughts, emotions, and passions. I had thought Herbert expressed a bland and even smug religiosity that implicitly denied the complexity of life and faith: Jim White showed me, convinced me by his own sensitive and passionate readings of Herbert’s poems, that Herbert had grappled with unfailing honesty with his experiences, and expressed his struggle above all through the revelation, not the denial, of tensions and doubt as well as commitment and belief.

Reading “This Book of Starres” started me on a wonderful, now almost twenty-year-long spiritual journey with George Herbert, and for that gift I shall always be deeply grateful to Jim White. (I should note, however, that my copies of Herbert’s collected poems get opened far less than either of my two copies of White on Herbert, which give me Jim’s commentary as well as Herbert’s poems.) But White’s book about learning to read Herbert was also my real introduction to his approach to reading serious texts in any genre, an approach that has profoundly influenced my own understanding of the law, and of my role as a lawyer and a teacher of law. Several aspects of what White wrote about Herbert—though he makes many of the same observations in other writing about other authors and genres—have been important to me.

First, and perhaps most importantly, as I’ve already suggested, central to the way that “This Book of Starres” transformed my view of Herbert was White’s patient demonstration that, as he put it, Herbert’s is “a poetry of voices ... in which the speaker is not in any simple sense the poet himself;” the voices “are mainly internal ones, different versions of himself,” and thus in frequent tension or even sharp disagreement with one another.[5] “Slow reading,” in White’s sense, centrally demands an openness to or search for the points of tension, fracture, or contradiction in the text, understood not as evidence of confusion or illogic on the writer’s part but as entry points into the kind of thinking that any serious writing will embody. The impulse to gloss over or harmonize discordant elements in a serious piece of writing, including legal writing, is thus a mistake, at least if we give into it too quickly: we can learn more by asking what it is we can learn from the points of strain in thought or expression that the writer herself has left in place. Both in my own writing and in the classroom, I have tried to emulate White’s practices of reading in this regard.

Law, and perhaps especially American constitutional law (which is my own area of specialization), might seem uniquely ill-suited for the application of the White “slow reading” approach. After all, in an obvious way it is intrinsic to the very processes of constitutional decision that voices contrary to that of the decisionmaker are silenced or at least rejected as wrong, the views of dissenters deemed unpersuasive, other concerns overridden by those that the decisionmaker finds more salient. It is unsurprising, surely, that constitutional opinions, whether set forth by the judgments of the United States Supreme Court or in the pages of scholarly publications, are very often stated in a dogmatic or even imperious tone that hardly allows for other voices except as examples of error. White wrote of Herbert that for him “‘belief’ ... is not a simple credal affirmation, reducible to doctrinal terms, but a field of contest and uncertainty, including various forms of disbelief.”[6] But isn’t the very point of a statement of law to resolve contest, eliminate uncertainty, provide affirmations that can be reduced to doctrinal terms?

As an illustration of the way in which I believe Jim White can help us deepen our understanding of an opinion on constitutional law, I’d like to consider Justice Robert Jackson’s famous concurring opinion in Youngstown Sheet & Tube Co v Sawyer, the case in which the Supreme Court decided that it was unlawful for President Truman to seize the American steel industry to avert a potential shutdown of production during the Korean War.[7] The Court has long since come to treat Jackson’s concurrence as the central opinion among the six filed by the justices in the Youngstown majority, displacing in most invocations of that case’s meaning even the formal opinion of the Court written by Hugo Black. As William Rehnquist once wrote for the Court, both lawyers and justices have come to agree that Jackson’s concurrence “brings together as much combination of analysis and common sense as there is in this area [of the scope of presidential power].”[8] Most of the time, however, the attention given Jackson’s opinion is narrowly focused on the couple of pages in which Jackson sets out what the Court now terms the “familiar tripartite scheme [that] provides the accepted framework for evaluating executive action.”[9] The other nineteen or so pages of Jackson’s concurrence, an opinion Jackson drafted and revised personally and that constitutes a closely reasoned and passionately eloquent statement by a justice highly regarded by most, regularly go unnoticed. The reason for this lopsided focus of attention is easy to see: the “familiar tripartite scheme,” abstracted from the rest of Jackson’s opinion, can be read as a dogmatic affirmation of constitutional truth, a doctrinal formula that reveals no uncertainty on the author’s part and brooks no opposition on the reader’s. As a result, read in a very non-Jim White fashion, this small fragment of what Jackson actually composed is immensely valuable to the lawyer writing a brief, the law clerk drafting an opinion, or the student or scholar organizing the subject: plugged in at the appropriate point, the “tripartite scheme,” like any bit of black letter, puts an end to doubt and the search for understanding by pronouncing what the rule is. The implicit or explicit message is that the reader of such a pronouncement has but only to obey.

The problem with this common treatment of the Youngstown concurrence is that it is almost as bad a reading of Justice Jackson’s opinion as my pre-White view of Herbert as sentimental versifier misunderstood that great poet’s work. Even the passage that we have turned into a black letter, tripartite rule undercuts the common reading of its words. Jackson notoriously described the “actual test of [presidential] power” when the executive acts neither with nor against an act of Congress as likely to depend on “the imperatives of events and contemporary imponderables”—language that looks to the dogmatist like an inexplicable lapse in performance, as if the Nicene Creed’s third article began “We believe in the Holy Spirit, whatever that may be.” Given the intense care with which Jackson crafted the opinion, the idea that he simply dropped the ball at a crucial point is, I suggest, highly implausible. Furthermore, if we go back to Jackson’s opinion as he wrote it, and give his work the kind of “slow reading” Jim White proposes and practices, we can see that the bigger and basic mistake lies in reading Jackson as if his goal were to provide a statement of constitutional dogma to be accepted and applied without question. Of course Jackson intended to provide a reasoned exposition, one complementary to that provided by Justice Black’s very different line of thought in Black’s opinion for the Court, of why the Youngstown majority was right to come to its judgment that President Truman had acted unlawfully. And there is no reason to doubt that Jackson hoped that future constitutional lawyers would take seriously his thoughts in coming to their own conclusions about whatever problems they might have to address. But Jackson’s opinion is something far greater than a strangely-prolonged presentation of the black letter rule that can be stated (or restated!) in less than a page into which we have turned it. White’s “slow reading” is the key.

You’ll recall White’s observation that George Herbert’s is “a poetry of voices,” none of which are simply to be equated with Herbert himself, in the singular: what a slow reading of Herbert enables us to hear are what are distinct and “mainly internal voices” that present “different versions” of Herbert by expressing the tensions, conflicts, and doubts that were intrinsic and valuable aspects of the man, that enabled him to be a great literary artist, and a subtle and profound religious thinker with much to say about human existence even to those who do not share his faith. In a similar fashion, Robert Jackson’s opinion in Youngstown (indeed, his judicial work generally) is a “jurisprudence of voices.” There is a deep coherence to what Jackson wrote—elsewhere I have referred to his Youngstown vision, an account of the American constitutional order and the place of law and of lawyers within it that is compelling precisely because it makes ultimate sense of both American arrangements and the moral choices those arrangements require.[10] But Jackson achieves coherence and expresses vision not through the suppression of tension and doubt but precisely through the ways in which he makes plain to himself and to the reader the presence of conflict and the unavoidable uncertainties that accompany, or should accompany, momentous constitutional decisions.

Consider the first paragraph of Jackson”s opinion:

For the legal dogmatist looking for unquestionable black letter this is a bizarre way to begin an opinion meant to lay down the law. For a slow reader, in contrast, Jackson begins his effort to reach and explain the proper resolution of a great constitutional question by introducing us to three distinct perspectives.

We first meet Robert Jackson the attorney general, whose service “as legal adviser to a President in a time of transition and public anxiety” lies in the past but who will be a lively and vital presence throughout most of the opinion. As a high officer of the executive branch, charged in some large measure with enabling the president to pursue his policies but also with ensuring that the claims of the law are heard, this voice admits the tension inherent in advising a president faced with national crisis: “comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country.” At subsequent points in the concurrence, Jackson the attorney general will concede that a legal advisor to the president can come under great pressure to lay claim to “inherent and unrestricted presidential powers,” claims that play well in “political controversy” but not in court, and he will even reject the attempt of the government lawyers to invoke as authority the “self-serving press statements” he himself issued in defending Roosevelt administration actions.[12] But read carefully, in the way Jim White teaches, the Youngstown concurrence enables us to understand that assertions of presidential authority involve constitutional duty as well as political expediency: Jackson the attorney general comments, for example, reflecting on the question of what powers belong to the president as commander in chief, that “just what authority goes with the name has plagued Presidential advisers who would not waive or narrow it by nonassertion yet cannot say where it begins or ends.”[13]

In the second sentence of the concurrence, we first hear Robert Jackson the present judge, tasked with deciding the legality of a presidential action presented to his court and both troubled and puzzled by the question. It is this Jackson who reflects, in the first-person singular, that his pre-judicial experiences as a lawyer for the president “probably are a more realistic influence on my views than” legal doctrine, despite the fact that as a judge he has had the advantage of “an interval of detached reflection” between advising and defending President Roosevelt and sitting in judgment on President Truman. The judge’s detached reflections, this voice recognizes, have not eliminated the risk that the experience voiced by Jackson the attorney general may make the judge unduly indulgent in determining the legality of a presidential decision out of a sympathy rooted in experience for the exigent sense of concern for the national welfare that no doubt motivated Truman. Indeed, Jackson the judge intimates, it is not only former attorneys general whose exercise of the judicial function is likely to “suffer the infirmity of confusing the issue” of legality with the question whether the president’s policy preferences are benign or desirable. But the task of distinguishing legal validity from political approval, however difficult, is not impossible: if the decisionmaker ( judge or advisor) will only acknowledge the difficulty, “we half overcome mental hazards by recognizing them.” Both voices have recognized these mental hazards: as a result there is reason to hope that the Supreme Court can decide the case before it without falling into either blind acceptance of a presidential decision in time of war or a reflexive distrust of the claims of the executive branch.

In the final sentence of this opening paragraph, I believe we hear for the first time a third voice, one more impersonal than that of either the attorney general or the judge: “The tendency is strong to emphasize transient results upon policies-such as wages or stabilization-and lose sight of enduring consequences upon the balanced power structure of our Republic.” Here at last we find a statement that might satisfy a reader searching for legal dogma: taken out of context the sentence has the abstract and Olympian tone that judges (and other legal writers) often affect, a tone that implies that the reader is being presented with a Diktat from on high rather than a thought for her consideration. But in this opinion (as elsewhere) what Robert Jackson asks of his reader is reflection rather than mindless obedience—it was Jackson, you may recall, who famously disavowed for the Court any infallibility except in the brute sense that the Court is effectively beyond correction. (“We are not final because we are infallible, but we are infallible only because we are final.”[14]) If we give the great Steel Seizure concurrence the slow reading à la Jim White that it invites, what I believe we hear in this sentence and later is Jackson’s mind in yet a third register, looking not only backward to the experiences of the attorney general, or at the present duty of the judge who must decide, but forward, to the role that Jackson’s words will play in the future for presidential advisors, and judges, and citizens, who will address problems that Jackson himself cannot foresee. It would be easy, and more satisfactory from the standpoint of the searcher for legal dogma, if we could at least treat this third voice, when we hear it over the course of the opinion, as Jackson’s final word, and the more overtly personal voices as internal cogitations that have made their way, somewhat mysteriously and even unfortunately, onto the pages of the published opinion. But Jackson—on a slow reading—will not let us do that. Not even literally: the final words in the opinion are the judge’s (“We follow the judicial tradition instituted on a memorable Sunday in 1612 [by] Chief Justice Coke”).[15] More importantly, I believe that his opinion is constituted throughout by the conversation Jackson conducts by speaking distinctively through all three voices even if they converge on the judgment that Jackson announces in the heading of the opinion (“Mr. Justice JACKSON, concurring in the judgment and opinion of the Court”[16]) but only alludes to at its end.

This isn’t the occasion on which to give Justice Jackson’s entire concurrence in Youngstown the sort of slow reading that Jim White teaches us to do in his book on George Herbert and in many other places as well ... although such a reading of Jackson would be extremely rewarding. But we shouldn’t leave Jackson without asking what to make of the famous bit of his opinion, “the familiar tripartite scheme,” when we put that fragment back into its setting. We hear, I believe, the voice of Jackson the attorney general introducing the three categories that make up what the Court refers to as a scheme. Jackson imagines himself President Truman’s advisor ( just as he was in fact President Roosevelt’s) and suggests that “a President [who] doubt[s] his powers” or worries that “others may challenge” his actions may find it useful to consider his decision in the light of “a somewhat over-simplified grouping of practical situations.”[17] The three categories, in other words, are proposed in the first instance as a tool for deliberation within the executive branch, in discussions among the president and his advisors, before Jackson adopts them as a judge evaluating the legality of the steel seizure from the outside perspective of the Court. The puzzling description Jackson gives his middle category that I quoted earlier—the legality of some decisions depends on “the imperatives of events and contemporary imponderables”—is a deliberate observation about the difficulty of giving the president sound legal advice in conditions of uncertainty rather than an odd lapse into imprecision on the part of a judge who is not ordinarily wooly headed. When we hear the other two voices in the opinion pick up on the categories, as we immediately do, they are responding to a line of reasoning shaped by the practical and political concerns of the president’s advisors and not just by what Jackson has termed “the conventional materials of judicial decision.” Subsequent use of the categories by advocates, scholars and judges has turned them into precisely that—a conventional bit of black letter—a fact that is unsurprising but quite ironic.

I hope I have given some small indication of how fruitful the slow reading Jim White commends can be when it is applied to an opinion like Justice Jackson’s concurrence in Youngstown. Its value is both analytical—we can make better sense of what Jackson meant—and pedagogical. My own introductory constitutional law materials give my first year students a substantial proportion of his opinion, and when I teach Youngstown I try to lead my students in studying the opinion through a process of slow reading. Just last fall one of my students commented that she thought Jackson’s opinion was faulty because he made it possible for her to wonder whether he and the other justices in the majority had been right. I responded that her observation was directly on target—she was entirely right to read Jackson in that fashion—but that for myself it was Jackson’s success in unveiling the uncertainties and difficulties in his own position as well as in the president’s that made his concurrence a great opinion. And I do this, or try to, not just with Jackson and Youngstown but throughout the course and with respect to many of the opinions that my students and I read together. In teaching, in advocacy, and in responsible legal decisionmaking, White’s slow reading is an enormously valuable practice—and not just for lawyers like me who love poetry! It is the age-old temptation of the advocate to pick out the useful phrases and ignore the thinking embodied in the words of an opinion. Our own era’s taste for supposedly algorithmic forms of reasoning can reinforce our desire to deny the existence of difficulty and suppress our awareness of doubt, to pretend that by using the “right” intellectual technique we can avoid tension and uncertainty in our decisions. But as Charles Fried recently observed, “the search for security and objectivity in [such techniques] is a will-o’-the-wisp,” and wise legal judgments depend on the exercise of “not just keenness of mind but prudence,” the exercise of practical wisdom in decision in the presence of conflicts that cannot be eliminated by deductive logic.[18] Jim Whites work is a powerful antidote to these pathologies in the practice of law whatever our role in that practice.

 
If I have been at all successful, up to this point I have told the happy story of a brilliant and creative thinker who has a tremendous amount to contribute to law, and more particularly to the area of law that is my own specialty, American constitutional law. I have no doubt this story is true, but perhaps its truth is limited: Jim White is brilliant and creative but for reasons I shall now lay out, it isn’t at all clear what and how much he can contribute to constitutional law. Not to leave anyone in suspense, let me say at once that the problem lies not in White’s work but in constitutional law itself. I’ve tried to show how valuable White’s slow reading can be for the constitutional lawyer by talking about Robert Jackson’s opinion in Youngstown, but doing so (I must now confess) was a form of intellectual sleight of hand. Jackson is dead, which is sad enough on its own, but what is more, everything about Jackson’s concurrence that makes it amenable to slow reading is, one might well argue, equally dead. Jackson wrote his Steel Seizure opinion with very little help from his clerks, one of whom was the young William Rehnquist; Jackson’s notes and drafts are available, and reveal the care, intelligence, and even passion that Jackson invested not just in his judgment in the case but equally in the precise wording of his opinion; Jackson himself is often thought to be among a tiny handful of first-class writers in the history of the American bench. (G. Edward White’s great essay on Jackson as a judge focuses much of its attention on the relationship between style and thought in Jackson’s work.[19]) If there were only three or four other notable poets in English literature, Jim White’s book on George Herbert would still be a great interpretation of Herbert, but its value for the general study of literature might seem considerably narrower than I believe it is. But perhaps there are only three or four other notable writer-judges in American constitutional law. Or, only slightly less dismally, however many such judges there were in the past, in essence they are no more: our modern practices have driven them to the brink of extinction.

My assumption is those who are familiar with contemporary constitutional law in the United States will scarcely need me to explain why I make this unhappy assertion, but for others and the record, let me state my reasons. First, it is generally believed, and apparently with good reason, that in recent decades the vast majority of federal judges (including the members of the United States Supreme Court) have left most of the chore of drafting opinions to their law clerks. My point is not to give credence to the occasional suggestion that clerks in their mid-twenties are determining the law of the land—in the sense of what the ultimate decisions are—while the putative judges are off on a frolic and detour: I don’t believe that. But a judge who leaves the task of drafting an opinion to someone else, no matter how detailed her instructions, no matter how careful her editing, is simply not wrestling with the opinion, either in its reasoning or its expression, in the fashion that Jackson did superbly in Youngstown, and indeed that at one time all judges did, however well or poorly. Justice Louis Brandeis once said that “the reason the public thinks so much of the Justices of the Supreme Court is that they are almost the only people in Washington who do their own work.”[20] If the justices’ work involves not just determining outcomes but explaining those outcomes and shaping the language of the law for the future—as Brandeis certainly thought it was—then most recent justices no longer do much of their own work. It isn’t at all clear what value there is in applying Jim White’s technique of slow reading to documents that are in very substantial measure not the work of their putative authors but instead the output of a “writing” process more akin to the production of a committee report than to the creation of a poem.

The source of my second reason for worry that we can’t usefully bring Jim White’s approach to bear on constitutional law opinions is a book entitled Living Speech by one James Boyd White(!).[21] In that book, White identifies “living speech” as “speech that is deeply meant ... that comes from the center of the person, and is addressed to the center of its audience; speech worthy of real attention; speech upon which both individual and shared life can be built.”[22] Speech, in short, of the kind that we find in a Herbert poem and a Jackson opinion. (White in fact discusses several Jackson opinions as exemplifying living speech.) In contrast, White evokes powerfully the pervasiveness in contemporary life of “dead language,” “the reiteration of clichés, formulas, slogans,”[23] the language of advertising, propaganda, publicity, sentimentality, expression that is “empty, strategic, manipulative,”[24] that seeks to control the recipient without offering her any access to the actual thoughts and intentions of the generator of the expression. About the law, White writes, with painful accuracy:

The point of course is not that all legal language must present the lawyer’s private opinion on the best reading of the law—someone writing a brief, for example, is an advocate whose role is to present the most persuasive reasons supporting her client’s position rather than to express her views of the law in the abstract. A judge writing an opinion expressing a judgment that he believes compelled by erroneous but controlling precedent is in a somewhat similar position. But in any legal context, we can see the difference between the living speech of a lawyer actively engaged with the legal issues she must address and one who is just going through the motions. It is the former, not the latter, who is effective, even as an advocate: Justice Brandeis once commented that Robert Jackson should be “Solicitor General for life” in recognition of the way that Jackson brought the same investment of mind and thought into his work as the government’s advocate (where his conclusions were predetermined) that he would later display in his judicial opinions.[26]

Unfortunately, I think it is fair to say that a great many U.S. Supreme Court opinions in recent decades have been prime exemplars of dead speech. (White gives examples in his book.) This problem is undoubtedly related to the practice of clerkly ghostwriting, and other factors, perhaps including such lowly factors as the seductive ease of electronic research and the copy-and-paste function, are at work as well. But the problem of dead language in the constitutional opinions of the high Court is distinct from its causes and might not disappear even if all the justices started doing their own work in the sense of drafting their own opinions. I referred earlier to our time’s attraction to what I called allegedly algorithmic lines of argument. In the courts and in the academy, those who advocate forms of constitutional decisionmaking that promise, or at least appear to promise, a means of eliminating the role of judgment in difficult cases often seem to be in the ascendancy. “Lawyers’ work,” we are assured, has to do with “texts and traditions [that] are facts to study,” and reaching the proper decision in a constitutional case neither requires nor (when the judge understands her role correctly) permits the sort of creative wrestling with normative issues that Justice Jackson undertook in Youngstown.[27]

It is Jackson, and not our contemporary constitutional dogmatists (who disagree in ideology but not in their commitment to dogmatic certainty), who stands in the American constitutional tradition. The great Benjamin Cardozo said of Chief Justice Marshall that “he gave to the constitution of the United States the impress of his own mind; and the form of our constitutional law is what it is, because he moulded it ... in the fire of his own intense convictions.”[28] On Cardozo’s view of constitutional law, we should hope and expect for constitutional opinions that are living speech in Jim White’s sense and that we can profitably approach through his slow reading. But Judge (and later Justice) Cardozo, and if Cardozo was right Chief Justice Marshall, too, were heretics by the standards of today’s warring, would-be orthodoxies: what White calls dead language is probably a virtue from those varying perspectives because their shared use of dead speech eliminates from constitutional law the role of the individual mind and normative judgment they so abhor. Jim’s style of slow reading—it might be thought—is of little use for a constitutional lawyer in an era of ghostwritten opinions produced under the aegis of judges many of whom seek, as a matter of principle, to treat constitutional decisionmaking as an investigation into facts rather than a wise judgment about norms. That is not my view, but we cannot grasp what White’s contribution may be unless we first acknowledge how uncongenial to his vision the current scene truly is.

 
Jim White’s book on Living Speech is remarkable in many ways, not least because it is in fact four or five books happily coexisting in one fairly slender volume: a moral philosophy of human communication, a social critique of contemporary American society, a study of judicial opinion-writing, a proposal to reorient First Amendment thought, and (not least of all) a fascinating and thoroughly persuasive interpretation of Dante’s Divine Comedy. I won’t even try to explain how one book can do all that! What is important for this paper is that it is through White’s treatment of Dante’s great poem that I get a glimpse of how I think his overall approach to reading texts might find purchase in the apparently hostile world of contemporary constitutional law.

As White notes in Living Speech when he first introduces Dante, on its face the Divine Comedy might seem to portray and indeed celebrate the ultimate “empire of force:” “Dante’s theological emperor, the Deity, is omnipotent and has used his power, especially in creating the Inferno, to define and maintain the moral coherence of the universe as he has imagined it into existence.”[29] Dante’s would be a universe, it seems, of absolute power enforcing a theological “ideology working out its iron logic without hitches or gaps or cracks, a system of thought and imagination in which there [is] no place for you, except as a subordinate.” The eternal punishment of the damned in the Inferno could only be the ultimate expression of a world that is “perfectly authoritarian.”[30] In such a world, speech cannot ultimately be the mode through which the living thoughts of the speaker evoke the active response of the hearer and so build a shared life, because in the end the only speech possible is dead speech, the unquestionable decrees of a universal despot and the respectively servile or despairing utterances of those who cower or rebel in equal helplessness before him.

There have certainly been Christians who have understood the universe in these terms, and no doubt when they took note of Dante they construed the Divine Comedy accordingly. What Jim White does over the course of Living Speech is to argue, convincingly, that this is not Dante’s understanding of the universe or the meaning of his poem, that in fact Dante employs his poetic and intellectual gifts “to keep the highly juridical world that he imagines into existence in this poem from becoming an empire of force ... by ... mak[ing] necessary the presence and place and judgment of the reader ... one who must be satisfied in his or her own mind, and not simply rest on a set of authoritative declarations.”[31] As White writes near the end of his book:

Authoritarian speech, by definition, is dead speech: it offers no genuine explanations, it can only command or manipulate the hearer, who is thereby reduced, whether knowingly or not, to the object of (at least) verbal force. What Dante did in the Divine Comedy, White shows, was to take a theological language that might seem inextricably authoritarian—an omnipotent Deity, inexorable decrees—and make it into a commendation and exemplar of living speech that “constitutes the reader as an independent mind” and invites the reader to address “the problem of justice [that is] at the center of our own experience of the world.”

It was not an option for Dante (I mean an existential option) to reject the “orthodox Christian views” including the punishment of the damned and relegation of Virgil to an eternity of “desire without hope.”[33] Dante was well aware of the way that this orthodox language could be understood in authoritarian terms, as what White would term empty or dead speech. (See White”s discussion of Guido da Montefeltro.[34]) But he refused to understand the language of orthodoxy in this fashion or to use it that way himself. Instead, Dante took the orthodoxy he had inherited and made of it the means by which he leads the reader to perceive that as human beings we ought not submit without question to divine decrees regardless of their apparent injustice, but instead we should view “the question of justice as a real and valid one, the nerve of human life ... to which it is our task to respond as well as we can, as it is our task to respond to life itself.”[35]

American constitutional law does not concern itself directly with the ultimate questions of existence posed by the Divine Comedy, but the issues it does address are important enough, and I believe that Jim White’s reading of Dante suggests the stance constitutional lawyers might take toward the dead speech that makes up much of contemporary constitutional law. The language of Supreme Court opinions, whether written by a master like Jackson or promulgated under the name of a less engaged justice, is central to constitutional law; indeed, the use of those opinions in reasoning and argument is a defining characteristic of constitutional law as American lawyers have practiced it historically. Great opinions such as Jackson’s in Youngstown invite and reward White’s slow reading, and model for the rest of us how we ourselves should write and reason in the law. White’s approach is valuable, however, even when applied to the more common examples of dead speech that clutter the volumes of the United States Reports because it allows the reader to unmask the presence of the formulaic and unthinking, and to see more clearly what substantive issues a poor opinion obscures or with which it fails to wrestle. Not, I hasten to add, that we ought to rest easy with current judicial practice: I think the rest of us ought to be far more critical than we are of judicial practices such as the overuse of clerks. Instead of seeking mindless commitments to “interpret not make law” from Supreme Court nominees the Senate Judiciary Committee ought to ask of nominees the meaningful commitment to imitate Jackson and draft their own opinions.

American constitutional lawyers need not and ought not wait upon the wholesale conversion of justices and senators to living speech. It is open to the rest of us to take the materials of constitutional argument—the Court’s opinions but other sources of argument as well—and treat them as the raw materials for a style of constitutional debate and decisionmaking that would treat the exercise of prudence and judgment as unavoidable, legal argument as an invitation to think together even if we do not in the end agree, and the uncertainties and tensions that attend any difficult legal issue as matters to be confronted directly rather than concealed or denied. The often-decried tendency of the modern Court to splinter, thus producing a sometimes bewildering array of concurrences, part-concurrences and dissents, need not be seen as an unmitigated vice from the perspective of the slow reader. Separate opinions make it more difficult for the legal dogmatist to find the black letter rule in the decision, but for a lawyer whose habits of reading are informed by Jim White they often expose by their external disagreements the lines of contention and uncertainty that a great judge like Robert Jackson incorporated into the substance of his opinions.

This last may seem entirely too quixotic, so I want to conclude with a specific proposal for my fellow teachers of constitutional law—I do not think Jim White, a great teacher and a very serious one, will think it inappropriate to end on a pedagogical note. The introductory constitutional law course in U.S. law schools, which most schools and teachers seem to think should be a survey of the field, is increasingly unable to accomplish that goal because there is simply too much constitutional law to cover. The area of constitutional law that is most often at issue in the courts, constitutional criminal procedure, exited the introductory course decades ago, and the First Amendment now seems to be following it, but at some point the ruthless exclusion of entire areas of the law will make it absurd to see the course as a survey. The proper solution, I believe, is to recognize with Jim White that the fundamental educational need is to learn how to read, whether what we want to read is George Herbert’s poetry or the Supreme Court’s decisions. Our objective in the introductory course should not be to run through some unavoidably incomplete list of constitutional topics but to bring the students into engagement with meaningful practices of constitutional argument and judgment in constitutional decision. In doing so, as Jackson’s concurrence illustrates, we need to reconsider the common habit of stripping constitutional opinions down to their doctrinal “core”—even an inadequate opinion may offer more for thought and discussion in what a thoughtless editor might dismiss as “dicta” than can be found in the bits excerpted in the headnotes.

The unsatisfactory nature of many of the high Court’s opinions should not stop the teacher from inculcating in her students the habits of slow reading that Jim White advocates: as I learned long ago from his book on Herbert, slow reading proceeds in large measure by seeking out the lines of stress and contradiction in what one reads. A ghostwritten and thoughtless opinion patched together out of quotations from earlier cases may not be admirable work, but read in White’s fashion the very ways in which it employs (or lapses into) bombast or cliché will often reveal, however unwittingly, the fault lines in the position the opinion advocates and suggest the questions that a serious engagement with the issues before the Court—and the class—must consider. When approached as a course about learning to read judicial opinions, constitutional law need be neither a slide-show presentation of ideologically driven outcomes nor an exercise in pretending that the justices always make sense: instead, it can introduce the students to the skills and habits of slow reading and living speech that will make them better lawyers and, I even hope, better citizens. It is all too easy to find constitutional law, and the task of teaching it, depressing. It is one of Jim White’s many contributions that he can make both the subject and the teaching a source of inspiration.