Flockhart, Bale, Friel and West in “Midsummer Night’s Dream”
Friday
Hearings at the Supreme Court have been sounding very different with the absence of the late Justice Antonin Scalia, the outspoken proponent of strict Constitutional textualism. There’s no question that, were he still alive, Scalia would be arguing vigorously in favor of a recent Texas law designed to deny thousands of Texas women ready access to abortion services. In his absence, the three women justices have been able to assert themselves more forcefully.
I’ve just been reading a Shakespeare play where another textualist invokes old laws in order to control women’s bodies. The play is Midsummer Night’s Dream and the man insisting on “the ancient Athenian law” is Egeus, Hermia’s father.
Hermia wants to marry Lysander but her father wants her to marry Demetrius. The law is on his side:
Be it so she will not here before your grace
Consent to marry with Demetrius,
I beg the ancient privilege of Athens,
As she is mine, I may dispose of her:
Which shall be either to this gentleman
Or to her death, according to our law
Immediately provided in that case.
Theseus, functioning as the court of last appeal, must honor the ancient law. He softens it somewhat, however, by offering Hermia a choice:
Hermia: But I beseech your grace that I may know
The worst that may befall me in this case,
If I refuse to wed Demetrius.
Theseus: Either to die the death or to abjure
Forever the society of men.
There are problems with strict textualism, just as there were problems with the text-obsessed New Criticism of the 1950s and 1960s. Text without context doesn’t get you closer to the truth but rather allows you to slip in your own interpretation while asserting that you are being true to the Constitution. Justice Scalia may have claimed to be a strict textualist, but often his “strict interpretation” of the Constitution’s language conveniently coincided with his political leanings. Note, for instance, how he interpreted the right of a well-regulated militia to bear arms to mean the right of all individual citizens to bear arms, whether or not they were in a militia.
In the play, Theseus comes to see the ancient Athenian law as a living document, not a dead one. When, as a result of the night’s adventures, Demetrius decides he prefers Helena, a strict observance of an old man’s rigid will seems out of the question. Love proves more powerful that Law and ushers in a new dispensation.
First, here’s Egeus putting up one last struggle after Lysander and Hermia confess to having stolen away:
Enough, enough, my lord; you have enough:
I beg the law, the law, upon his head.
They would have stolen away; they would, Demetrius,
Thereby to have defeated you and me,
You of your wife and me of my consent,
Of my consent that she should be your wife.
And here’s Theseus after Demetrius announces his change of heart:
Fair lovers, you are fortunately met:
Of this discourse we more will hear anon.
Egeus, I will overbear your will;
For in the temple by and by with us
These couples shall eternally be knit
Men, of course, used to have far more control over women than we would accept today. Justices who believe in a living Constitution evolve with our changing attitudes. It is time for our Egeuses to allow our Hermias to make their own choices. It helps that we have Hippolytas on the court as well as Theseuses.