Memetic Evolutionary Interpretivism – An Adaptive Alternative to Conventional Constitutional Interpretation
The current debate in constitutional interpretivism manifests the irreconcilability of two ideologies. Put simply, one group, the Originalists, believe that under novel circumstances, the Constitution ought to be interpreted based on the meaning of its language at the time it was written. The other group, Living Constitutionalists, believe that the founders intended to draft a document that could change with time so that judges could broaden its applicability without always waiting for an amendment: some passages are literal and inflexible, but others are elastic and can expand to contain new information. Neither side has convinced the other of its merits, and each assumes different quality judgments, thwarting a qualitative analysis of general applicability. Jurists and scholars have spoken this debate in the language of intentionalism, arguing over whose interpretivist rules are the right ones; but that vocabulary stifles the proper inquiry – namely, which expression of the Constitution will allow it to maintain its relevance.
To engage that question, I offer the theory of memetic evolution, which describes the adaptability of cultural information (memes) in changing social environments. I will focus on the expression of two interpretivist memes, Originalism and Living Constitutionalism, in discussing the adaptability of the Constitution generally, as well as exploring other relevant memes to build a broader framework for analysis. This new framework will expose the inevitable failures that flow from thinking in an old vocabulary.
The following article outlines the framework that I will eventually use in a more comprehensive work to provide a qualitative analysis of Supreme Court decision-making:
What is a meme?
A meme is a discrete unit of cultural information that internalizes in humans, who express the meme as behavior.[FN1] In fact, human behavior is merely the sum of genetic (instinctual) and memetic (cultural) behavior.[FN2] The main point of interest when discussing memes is their adaptability: do they have the ability to internalize in human hosts and then express as behavior in a manner that makes their proliferation more likely? In evolution, there is no higher quality judgment; the results only change when you alter the scope of inquiry (e.g., from short term adaptability of an individual to the long term adaptability of his society). The algorithm of evolution applies to any phenomenon that undergoes replication (producing subsequent generations), variation (occasionally altering composition during replication) and selection (succeeding differentially based on fitness to an environment).[FN3] This algorithm is present in any change in cultural behavior – including modifications in the way we interpret the Constitution – and it is the backdrop of this quality judgment on the existing ideologies in Supreme Court constitutional interpretivism.
What is constitutional interpretivism?
The Constitution, for all the meaning we attribute to it, is not an entity capable of expressing behavior by itself. It is merely an artifact, expressed in language, which lacks meaning until the Supreme Court interprets it. Language itself is no more than a behavior that we use to cope with our environment. “[S]ince truth is a property of sentences, since sentences are dependent for their existence upon vocabularies, and since vocabularies are made by human beings, so are truths.â€[FN4] Language holds no absolute meaning; it is merely a reflection of the intention of the speaker or the interpretation of the listener – but it is impossible to reconcile these unique perspectives.[FN5] Any attempt to assert the Right meaning of the Constitution will hit this epistemological-linguistic block. Memetic Interpretivism therefore discredits Originalists and Living Constitutionalists because both interpretivist behaviors rely upon an appeal to an absolute and transcendent intentionalism that is nonexistent.[FN6] Therefore, since no interpretivist theory can have the privileged position of knowing how the Supreme Court must interpret the Constitution, there may be some better tool to determine how the Court ought to interpret the document.
Why is Memetic Interpretivism a better tool?
Intentionalist interpretivism, in any form, is fallacious and arbitrary. Is this enough of a shortcoming to warrant change? Inevitably, yes. The algorithm of evolution describes a system that puts selection pressure on superior outcomes. Memetic evolution cultivates superior environment-coping mechanisms in this manner.[FN7] Memetic Interpretivism, as a tool of constitutional interpretation, is a superior coping tool because it more accurately describes observable outcomes and more effectively responds to them. By contrast, any intentionalism will produce maladaptive results by ignoring the significance of these outcomes when they conflict with its arbitrary set of rules controlling the meaning it is supposed to find.
When we discuss fitness in evolution, we are referring to the degree to which a subject is optimal in a system. Subjects become “more fit†by evolving – by varying randomly and replicating differentially based on suitability to their environment. Over time, success in a system is a function of speed – the subject that adapts to express the optimal qualities first will be most successful in survival and replication. Humanity is a great example of this characteristic: we are so successful as a species because our behavior can adapt to optimal outcomes as soon as our memes evolve, which happens intra-generationally, instead of waiting on our genes to evolve, which happens inter-generationally.[FN8] The one is much faster than the other. An optimal decision-maker would therefore change his opinions immediately when presented with new information (i.e., their memes would adapt, as quickly as possible, to novel environments). Adherence to any set of rules in guiding decision-making slows the adaptation of memes, and, unless that crystallization of cultural wisdom provides something more useful in the exchange, such a rule set is maladaptive.[FN9] In our analysis, we will identify some of the Supreme Court decisions that have relied on these maladaptive rule sets and we will trace them to the undesirable outcomes they have caused. Memetic Interpretivism provides better adapting mechanisms by identifying imperatives in decision-making instead of adhering to rules governed by artifice.
Decision-making imperatives can be extrapolated from evolutionary outcomes. Again, in the framework of evolution, survivability (the product of adaptability in novel environments) is the paramount quality judgment. In biological evolution, we can say that any organism or characteristic of an organism that exists in an ecosystem is “goodâ€; anything that is no longer present is “badâ€. In cultural evolution, this survivability manifests as the process of “good†ideas moving from an individual host to a larger group, from novelty to orthodoxy, from the metaphor to the literal. This “success†in the replication of adaptive memes is the instrumentality of the improvement of our coping mechanisms in the short term and the survivability of humanity in the long term (by virtue of our role as hosts of cultural information).
When analyzing interpretivist memes, how do we judge good from bad? If a good idea is one that has evolved to suit its environment, then rigid ideas – ones that are not allowed to evolve – will be systematically disfavored, regardless of what they are. Religion, for example, generally appeals to the same type of absolute authority as intentionalism, and, in doing so, crystallizes its cultural wisdom through uniform indoctrination. Accordingly, we have seen adherence to the edicts of religion erode as they become less relevant to changing environments. (Dietary constraints mandated in Leviticus: chapter 11 are a good example of this). By looking to a static and imagined authority, intentionalism bears this same stagnancy, making it per se less adaptive.
Is it even possible for the Court to depart from constitutional authority in making decisions?
The notion that the Constitution constrains the interpretivist behavior of the Supreme Court is a fallacy.[FN10] To understand why, consider that the Supreme Court not only interprets the Constitution, it is the Constitution. Certainly, both the Court and the Constitution are institutions unto themselves with respect to how our culture creates artifacts, but recall that language has no meaning that can be separated from our perception. This is an important nuance, confusing even those within the “evolving†discipline of memetic evolution, who have attempted to theorize where memes exist.[FN11] Some have conjectured that memes can be placed into art and texts for retrieval later on. If that were the case, it would surely be possible for the founders to have placed their cultural wisdom into the Constitution, with unambiguous meaning and perennial relevance, so that the Supreme Court could apply it in perpetuity.
To dispel the notion that text can contain memes, consider the following analogy. A book contains language; this language could tell a story or provide instructions. A predecessor for the book might have been a stone tablet with engravings – a set of instructions or commandments. And perhaps the ancient equivalent was cave drawings. The common characteristic in each example is that some medium is storing information with the use of symbols. As for books, we are inclined to think that the author has stored his ideas inside of the book, like a vessel, so that they may be removed for use when needed. Commandments, etched in stone, manifest this point even more so. Thou Shall Not Kill (commandment 6) seems like a pretty clear message; and, since it came from God, we would have to assume that he would write in his own unambiguous, and ahistorical language so that his words could be followed throughout time without question or confusion. Our society happens to espouse that principle (not necessarily for the same reason), but our capitalistic culture does a poor job of refraining from creating idols (commandment 2) or coveting things (commandment 10). And what of the cave drawings? To our ancestors, it may have contained adaptive wisdom about how to split a beast from its herd and kill it, but this is art by our standards – it is symbolic and open to interpretation. So is it proper to conclude that our ancestor imbued his “text†with a firm idea, a meme? Should we attribute its contemporary ambiguity to changes in culture over the many years or did the magic power of the vessel to contain a living idea merely fade over time?
Moreover, is there any relevant difference from the perspective of our internalized meme when our observation of nature causes the mutation in our consciousness? If memes are the building blocks of culture, than no one could contend that a non-manmade object could nurture a meme. Some would nonetheless maintain that manmade artifacts are different – that they can be imbued with memes – but this position is untenable. The cornerstone, for example, is a marvel of architecture, expressing mathematical precision, but arches exist abundantly in nature, waiting patiently for observation. And the fact that our observations of animals reveal behavior that is catlike, sheepish, as stubborn as a mule, or as loyal as a dog, does not mean that these creatures are actually trying to communicate memes to us. The result is the same, regardless of the source – a meme complex has mutated in our consciousness based on our observations. We humans create artifacts and marvel at the perfection of their form, but mere things are not perfect forms of themselves, the merely are. And they contain no magic properties that allow them to contain living thoughts;[FN12] they merely exist, occasionally in a spectacularly intuitive form, like a writing system, which may auspiciously benefit from other meme complexes that serve as decoders, allowing for quick and easy interpretation and internalization -modification and mutation of our meme complexes. The point is that internalization is a purely subjective process and there is no way to send a perfect copy of a meme from one brain to another via speech, imitation, text, or otherwise. When a meme moves from one consciousness to another, it necessarily varies – any similarity in the expression is coincidental, and where the environment selects any two variations of the meme equally, it is merely because selection is blind to the nuanced difference.[FN13]
Accordingly, while the Constitution is a symbolic representation of the wisdom of the founders, it is not a vessel containing the wisdom of our founders – it stores no memes. It is merely an artifact that provides a point of departure for reflection. So when we speak of “the meaning of the Constitution,†we are actually referring to the majority opinion of the Justices of the Supreme Court. The status of the powers and rights provided by the Constitution merely result from a dialog between the Justices and the people, communicated through the medium of judicial opinions.
Furthermore, while intervening case law is better suited to updating the applicability of the Constitution in the short term, it fares no better in expressing “the Meaning of the Constitution†in the long term. Regarding judicial opinions as providing the correct meaning of the constitutional text is just as faulty as looking to the text itself. Criticism over the years has attempted to make something of the distinction between the text of the constitution and the text of judicial opinions. A common, and usually ideologically motivated, approach is to accuse a judge, with whom you disagree, of legislating from the bench.[FN14] Recalling that there is no way to crystallize the meaning of language, it becomes clear that there is really no such thing. This pejorative suggests that, while the legislature is supposed to make the laws and the judiciary is supposed to interpret them, “activist†judges overstep the boundaries of their authority to add to the law instead of interpreting it.[FN15]
Because the Constitution does not have a normative meaning, there can be no sacred duty imposed upon sage judges to reveal it or to refrain from adding to it. And because it is a fallacy to conceptualize a normative meaning or to maintain any distinction between revealing the normative meaning and adding subjective views to it, then it becomes clear that every Supreme Court opinion that interprets a provision of the Constitution becomes a part of the text of the Constitution, no different than its seven articles and twenty seven amendments.
In fact, most of the affirmative language of the Constitution comes from case law. The words “free speech†in the 1st Amendment provide almost no information about the nature of the right: judicial opinions have established who is protected by the right, against which entities they can evoke the protection, in what geographic locations the protection is applicable, what kind of expression is insufficiently “speech-like†to qualify as speech, what statements are not the kind of “speech†that the amendment should protect, and even the circumstances under which a prior restraint on protected speech is constitutional. Similarly, cases determine what is not a part of the language of the Constitution. Cases occasionally overrule other cases as our cultural wisdom changes, but even the text of the Constitution is occasionally sidestepped[FN16] or ignored altogether.[FN17] Finally, while those same “minimalist†commentators urge that the Article V – the amendment process – is the correct way to update the Constitution, it should be clear now that this position ignores the inherent interpretivist fallacies in adding more language, which is no closer to expressing an absolute meaning that what it augmented. There is still the barrier of what is written, which stands between the memes that wrote it and the memes that are teased out of it.
The meme for intentionalism is maladaptive because it does not apprehend this framework and is therefore unable to avoid its perils. It is definitionally maladaptive in the short term because it binds itself to something arbitrary and inflexible in attempting to express an imagined constitutionalism. And, changing the scope of inquiry to the long term, intentionalism provides no payoff for its short term failures: The goal of intentionalism (especially Originalism) is to preserve itself – to protect the arbitrary set of rules governing interpretivism or the purview of the Court to be able to impose these rules on a tripartite government. The goal of Memetic Interpretivism, on the other hand, is to preserve the relevance of the Constitution and the vitality of the citizens who are party to its social contract. The latter is clearly more adaptive.
How will the Memetic Interpretivism “set of rules†fare any better in adaptivity when they become orthodoxy?
It is tempting, when using an evolutionary framework, to get mired in reductionist conclusions. If memetic evolution asserts the primacy of meme survival, and meme survival generally relies on the survival of humans as memetic hosts, then the theory has the tendency to urge radical and boundless imperatives to those ends. For instance, if survival were the only imperative in implementing self-government, then there is some environment for which revolution becomes adaptive. In fact, our predecessor constitution, the Articles of Confederation, met this same fate because of a systemic inflexibility. Taking its place, our current Constitution adapted to include an ability to change its meaning in new circumstances so that it could remain relevant: the language of the document can change pursuant to Article V, and the meaning of that language can change pursuant to Judicial Review.[FN18] This has led to a fairly adaptive text so far, but it is certainly possible that the entire presumption of constitutionalism is maladaptive in the long term. After all, any attempts to solidify cultural wisdom in a writing limit the ability of that wisdom to vary in new environments.
If evolution maintains, as a precept, that success is contingent upon environment, it would follow that any application of this algorithm should acknowledge contingency. In other words, the scope of inquiry will determine the form of the answer. I will rely on a presumption that it is right to have a constitution. Without such a contingency, this analysis would be a well intentioned but never ending effort to constrain choices in reaching any worthwhile conclusions.
And there are many adaptive benefits to establishing a social contract. Like religion in its day, constitutionalism promotes adherence to fundamental values, the adaptive benefits of which seem to outweigh those that would be provided by a more flexible form of government. But a self-authoritative text should be self-reflexive as well. It should consist of no more and no less than an acknowledgement of the contingencies that govern our behavior and the conclusions we have made about limitations in our ability to make good decisions to ensure the success of humanity. (This, after all, is the evolutionary niche for memes). Memetic Interpretivism does not strive to be the Right way to interpret a constitution; this claim would be self-defeating, replacing maladaptivity with maladaptivity. Instead, Memetic Interpretivism should endure, by its own rules, precisely because it is a flexible source of guidance. Our conjectures on the behaviors that this theory promotes should change as our experiences change. Where conduct ceases to be useful or a paradigm fails to describe and predict observable outcomes, they should be discarded for something better.[FN19] This is not a Truth-seeking algorithm but a decision-making one.
How will this theory change the current debate in constitutional interpretivism?
The Constitution of the United States of America is the foundation of our society. In Article VI, it declares itself the Supreme Law of the Land. In Article III (as interpreted in Marbury), it charges the Supreme Court with the duty of its interpretation. The scope of this inquiry will regard constitutionalism as a meme that prefers to continue to exist. It expresses itself through its Supreme Court, comprised of meme-hosting Justices who express their interpretivist behaviors as judicial opinions.
Years ago, this thesis began as an attempt to assert a framework over the discipline of interpretivism in search of a quality judgment. It was ends-based; Living Constitutionalism was supposed to win. And the scope of inquiry determined the answer:
“As between a hypothetical Supreme Court that looked to the past to find the meaning of the Constitution and one that interpreted the document in light of present circumstances, the former would express a Constitution that would fail to evolve to serve the people, ultimately becoming extinct, while the latter would express a Constitution that always evolved sufficiently to serve the people because of its ability to adapt.â€
It became clear, however, that while Living Constitutionalists had the right instincts, they were regularly falling into the trap of attempting self-description of their ongoing recreation of the Constitution with an outmoded vocabulary – one that presumed it could appeal to something absolute for its authority.[FN20] And the Originalists, having instincts as well, sought to defend their vision of the absolute; but their vision was an invented nostalgia – it never existed. Freedom is the recognition of contingency,[FN21] and the Court will never be capable of recognizing its role in the expression of the Constitution while its members continue to have this classic debate without questioning a stagnant vocabulary. The Constitution wants to continue to exist. This is imputed motivation, to be sure – an anthropomorphization of a cultural artifact – but one that describes that same motivation of any selfish gene to desire to endure natural selection or that of any meme to desire to promote its own expression so that it can replicate. This “motivation†of the Constitution exists because it is adaptive for it to exist. It was first expressed in Marbury, and it continues to express as an attempt to remain relevant to its people so that they follow its wisdom: if it is successful, the effect will go largely unnoticed; if it is unsuccessful, the world’s oldest surviving constitution will be relegated to history books.
Footnotes
[FN1] While the concept of the meme has become steadily more accepted since its introduction by Richard Dawkins in The Selfish Gene (1976) – a meta-meme! – it is important to note that there has been little success in actually pinning down the content of a meme. We may observe behavior and say that it results, in some part, from a particular internalized meme, but it has been futile to look any further at the causes of these effects. Any behavior in an organism is an attempt to cope with an environment; as for humans, our behaviors result from a combination of memes and genes, but observing behavior at the scale of human activity provides no success in separating the two.
[FN2] Within this framework, the distinction between instinct and culture (or genetic and memetic) is irrelevant; only the result (behavior) is important. For our purposes, dwelling in a dualistic framework leads to unnecessary quagmires like resolving whether homosexuality is nature or nurture before advancing to the question of whether homosexuals should have equal rights. This pursuit also reflects that same antiquated Enlightenment-era thinking that presupposes that it is even possible to deconstruct the result and its cause in such a complicated system and actually distill something pure and universal. Without getting too far ahead of the discussion, this is a hallmark of Justice Scalia’s view of Originalism: Justices ought to look to the contemporaneous meaning of words to the general public (original understanding) instead of the meaning imputed by the founders (original meaning). The most obvious flaw here is this: language is merely a tool to cope with reality. The meaning ascribed to a single word or phrase by any two people is unlikely to be identical – in fact, this question is epistemologically unknowable – so focusing the inquiry on “public understanding†is tantamount to asking “what were the founders’ understanding of public meaningâ€, which, again, returns to “what meaning did the founders imputeâ€. And then, of course, the inquiry unavoidably blurs with the question “which of the founders†before colliding with the broader epistemological block “how do we know what they were thinking when they used this languageâ€.
[FN3] Mechanisms for memetic evolution include activities like discussions, trial and error, and daydreaming – this analysis therefore quickly intersects the rights of speech, expression, education, and many other liberty interests that give rise to a rapid and robust proliferation of memes.
[FN4] Rorty, Richard, Contingency, Solidarity and Irony, 21 (1989).
[FN5] The actual process by which this happens is too complicated for this stage of the analysis. For now, consider that the ability to discern common cultural artifacts is a product of cumulative theoretical frameworks. (We can each know “chair†from “tableâ€, “blue†from “skyâ€, or “apple†from “pie†because of sufficient meme-content generating experience based on the usefulness of these distinctions in our cultural environment). Every single word we use is a metaphorical description of a meme-content that we internalize through repetition of tangible examples; we feel comfortable literalizing these descriptions when their use prompts predictable responses instead of misunderstanding. Nonetheless, the meme content for any particular word/framework is based on our own unique experiences and relates to nothing absolute or objective.
[FN6] Originalists disdain liberalism in interpretation and Living Constitutionalists feel unbound by antiquated inflexibility. A closer look reveals that Living Constitutionalists claim, as their interpretivist authority, that same appeal to something absolute (the founders’ intention that the text be interpreted broadly), and, in any application of the True meaning of the Constitution, any attempt by Originalists to adhere to their interpretivist ethics will be invariably as liberal and expansive as the Living Constitutionalists they attack, since it is impossible to use the literal (dead language) as metaphor (redescription). Ironically, each position is self-defeating.
[FN7] For a metaphysical example, the philosophical history from Platonism to Positivism to Pragmatism is a narrative of this process.
[FN8] Accordingly, in the study of gene mutations, biologists regularly use the fruit fly to observe changes in genetically motivated behavior over time because their short generation cycle. See, e.g., Ehrlich, Paul, Human Natures (2002).
[FN9] This calculus between procedurally maladaptive and substantively adaptive is crucial in successful decision-making. Most religions, monolithic perhaps, are still present because their rigid orthodoxy preserved enough adaptivity to make the broader Culture adaptive, even though they suppressed healthy dissent (i.e., memetic variation) in the process. For example, a reductionist, utilitarian model will clearly show that the rule “you may not murder†is adaptive. Entire cultures have internalized this meme for no other reason than that God told them to. A culture of rigid orthodoxy is generally maladaptive, but where it commands adherence to adaptive behaviors, it may be adaptive overall, even if the pretext to internalize the memes is not compelling (e.g., because God, the founding fathers, or your parents say so). Even Memetic Interpretivism is a rule set. Nonetheless, it is a meta-framework – a self-aware coping mechanism that allows us to change our conclusions based on new contingencies. In short, memetic theory is itself adaptive! It therefore makes sense that if we are to adhere to any rule set in making decisions, we ought to adhere to that rule set which speaks most accurately to the way we make good (adaptive) decisions.
[FN10] This concept is almost as old as the Constitution itself. In comparing the authority of a legislative act to that of the Constitution, Chief Justice Marshall ostensibly championed constitutionalism over a legislative regime, but more essentially, he declared the interpretation of the judiciary to be paramount to any other authority on the meaning of the Constitution. “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. Marbury v. Madison, 5 U.S. 137, 177 (1803) (emphasis added).
[FN11] See, e.g., Distin, Kate, The Selfish Meme (discussing attempts by Daniel Dennett and Richard Dawkins, among others).
[FN12] This quote, by Oliver Wendell Holmes, comes to mind: “A word is not a crystal, transparent and unchanging, it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and time in which it is used.â€
[FN13] For a genetic analogy, consider that the myriad of variation in the human species is practically selection-neutral because almost all of the selection pressure is focused on the part of our genotype that expresses as consciousness (meme-hostability).
[FN14] For a recent example, here is a statement by Senator John McCain from his 2008 presidential campaign: “I will nominate judges who interpret the Constitution, not judges who legislate from the bench. Legislators pass laws; judges interpret them. Unfortunately, too many judges have become confused [about] their role.†Available at: http://washblade.com/thelatest/thelatest.cfm?blog_id=21367. The Senator, like those who share his opinion, misunderstands the issue. The act of interpretation is that same act of making the law. His view draws a line between his opinion of the meaning of the Constitution and the opinion of judges with whom he disagrees. The distinction is illusory.
[FN15] Conservative commentators often use this approach to describe a departure from the Right meaning of the Constitution – a meaning that they generally seem confident in explaining themselves. For the record, Brown v. Board of Ed. of Topeka, 347 U.S. 483 (1954), Griswold v. Connecticut, 381 U.S. 479 (1965), and Roe v. Wade, 410 U.S. 113 (1973) were “wrongly-decidedâ€, whatever that means.
[FN16] The Supreme Court recently ruled on a state voter identification law in Crawford v. Marion County Election Board (07-21) without mention of the relevant 24th Amendment. See, http://www.slate.com/id/2190372/.
[FN17] The Supreme Court first interpreted the recently-added Privileges or Immunities Clause of the 14th Amendment in The Slaughterhouse Cases, 83 U.S. 36 (1873), choosing to deny it any substantive import in deference to federalism (despite a clear inference that it was meant to limit states’ rights). Today, the clause has little relevance.
[FN18] See, Marbury supra. This case first interpreted the Constitution to provide the Supreme Court with the power to interpret it, self-referentially, as it were. It is this precedent that allows the interplay between text and interpretation, between idea and expression, which makes this memetic analysis possible.
[FN19] In seeking frameworks to engage our world, it may be useful to regard the entire universe as sui generis, where there are no sufficient similarities between any two things to demand a category of broader significance. In the words of Rorty, “[t]he suggestion that truth, as well as the world, is out there is a legacy of an age in which the world was seen as the creation of a being who had a language of his own. If we cease to attempt to make sense of the idea of such a nonhuman language, we shall not be tempted to confuse the platitude that the world may cause us to be justified in believing a sentence true with the claim that the world splits itself up, on its own initiative, into sentence-shaped chunks called ‘facts.’†As humans, of course, we assert these categories without thinking (I may call something a “chair†for no other reason than it is useful for me to comprehend a category of “things that I may sit onâ€), and, while any logical positivist will be frustrated with the inability to point to any specific thing and declare it a meme, memetic evolution, like other culturally created categories (e.g., mathematics, morality, objectivity, music) is a useful category to describe and predict observable expressions of human behavior, but it does us no good to demand that there are literally things called “memes†that float around and manipulate our behavior. (This may be the case – the point is that we cannot know). So long as the theory is useful, it should be championed; where it ceases to be useful, it should be relegated in the manner of Newtonian physics or it should go the way of the electron shell, geo-centrism, and luminiferous aether.
[FN20] Theodore Seto describes the trap this way: “Any credible alternative to originalism must either deny the authoritativeness of the text or define some other plausible relationship between the text and its reader. This is often difficult. Hence originalism’s intuitive appeal.†Seto, Theodore, Originalism versus Precedent, at 1 (2005).
[FN21] Rorty, Richard, Contingency, Solidarity and Irony, 46 (1989).
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