KAS: Essentializing is considered evil in cultural theory because it presupposes or implies a biological, inherent, innate, somehow natural, or inevitable notion of identity or personhood or even culture. 

MJH: So if I say race has been incredibly important in American constitutional history, am I essentializing? 

KAS: See, that's the catch—it's difficult to discuss something without making it an issue. And once we're talking about it, it's being reiterated and further entrenched. The scary thing is that essentialism seems to always be ready to recuperate itself as the master explainer. I guess it's context that's really important—who's saying what about what and for what reason. But how can you distinguish between a discussion that has a particular political motivation or ideology and a discussion that has another—they both appear in form to be naming and treating a particular problem. Like the Supreme Court now—if they really are trying to construct an environment that will be more conducive to racial justice, their motivation isn't at fault, it's their technique. 

MJH: So let's take it out of the particular moment. In 1905 somebody says that if you, in discussion of freedom of contract, talk about large corporations versus small or individual laborers, you are politicizing the law. You are indeed essentializing the law. How do we then identify the political motivation of anybody who has a methodological critique of the other party's mode of thought? The answer is, we can't always be sure, but one of the things that cultural studies helps us do is understand that through a kind of holistic placing of the seemingly apolitical statement in the context of the society, you might be able to come to the conclusion that an anti-essentialist argument in favor of freedom of contract has nothing other than protecting corporations in mind. 

Or you might say, not that these people had as their motivation the protection of corporations, these people just wanted to relive an earlier world in which it was individual A versus individual B, and they couldn't bear to take account of the cognitive dissonance that including a corporation in their analysis would require. Is that conservative? Only cultural studies can help us understand that blocking the noncomparable character of corporations and individuals is a form of political denial. Likewise in the present situation. 

One can never, in a vacuum, identify an argument about methodology or form as an argument about substance or politics. It's only by putting it into an incredibly nuanced and contextual moment that you can entertain the thought. You can never prove it in the form of formal logic. You can only suggest it through the usual processes of good interpretation. So that's the answer, it seems to me. 

KAS: Do you think that the concept of originalism in constitutional law is connected to what we're talking about? 

MJH: Well, originalism says we should interpret the constitution according to the original intent of the phrase. In constitutional law of the last twenty years, it has been identified with a Reagan/Meese/anti-abortion/overrule Roe v. Wade/ Bork position. But it needn't be. There was a period when people went back to the Civil War amendments to make originalist arguments for an expansive, pro-protection of blacks notion of the Fourteenth Amendment. So originalism doesn't have any necessary political spin, though it usually is deployed by people with a certain kind of fundamentalist, Mt. Sinai state of mind. And those people tend to have political tendencies and characteristics that we would identify as conservative. But when Justice Black said that Congress shall make no law, it means Congress shall make no law. And he derived an absolutist version of the First Amendment from that in his particular historical moment; I think there is no question that he was taking a progressive, emancipatory view of the constitution. 

KAS: Because at the time he had a particular political project in mind, and that project could be aligned with progressive thinking. But this absolutist interpretation of the First Amendment has since taken on some kind of conservatism that no longer would be considered— 

MJH: Exactly. Just as freedom of contract in the hands of late eighteenth-century thinkers like Adam Smith was basically an emancipatory, antifeudal, antimercantilist conception that, by the end of the nineteenth century in the Lochner court, became our reactionary, antiprogressive mode of thinking. So too, we see the same point with the First Amendment. When Justice Black was attempting to elaborate the Holmes/Brandeis First Amendment position, the typical situation was of the state attempting to suppress political dissenters who were weak and powerless. 

By the time we come to the Rehnquist court, we see the corporation having First Amendment rights to spend as much money as it wants. And in Buckley v. Malayo we get a money-is-speech doctrine in which any attempt by government to limit your campaign contributions is regarded as an infringement of your First Amendment rights. The rich therefore have more First Amendment rights than the poor. So, clearly, when you get to that issue or when you get to the hate speech or pornography issues, the social significance of the First Amendment takes on a much more profound, much different character than before. Then when you get to the information superhighway and First Amendment access to sources of information, which will consume First Amendment jurisprudence for the next thirty or forty years, you get a different social composition. And once more, Justice Black's absolutism may take on a different characteristic.  

KAS: So absolutism can work in some circumstances. 

MJH: Absolutely. 

KAS: Kind of like the political uses of essentialism, which have been argued by different thinkers. The historical context is then the pivotal factor. 

MJH: Exactly.