Law Quadrangle (formerly Law Quad Notes)


editor's note: This article is adapted from part of the final chapter of Professor White's book, When Words Lose Their Meaning, published by the University of Chicago Press in 1984. In this book, the author works out a method of analysis, or what he calls a "way of reading," which he exemplifies in his interpretation of a wide range of texts, drawn from different historical periods and representing different generic types. The texts include Homer's Iliad, Thucydides' Peloponnesian War, Plato's Gorgias, Swift's Tale of a Tub, Samuel Johnson's Rambler Essays, Jane Austen's Emma, and Burke's Reflections on the French Revolution. The book closes with an analysis of The Declaration of Independence, The Constitution of the United States, and Chief Justice Marshall's opinion in McCulloch v. Maryland. In this section reproduced below, which is part of the conclusion of the book as a whole, Professor White sketches out his conception of the law as a rhetorical and literary process. In it references are occasionally made to other parts of the book.

The most prominent feature of the judicial opinion is that it is not an isolated exercise of power but part of a continuing and collective process of conversation and judgment. The conversation of which it is a part is not a political conversation of the usual sort, proceeding as such conversations ordinarily do- by a kind of jostling and compromise, focusing mainly on the problem of the immediate present-but a highly formal one, in which authoritative conclusions are reached after explicit argument. These decisions in their turn become the material of future arguments leading to future decisions, and so on in a continuing process of opening and closure, argument and judgment, of which no one can claim to foresee the end.