It is already a banal observation that at some point in its ginned-up war on critical theory, the non- or anti-conservative political right became the nation’s foremost practitioners of and advocates for…critical theory. If I want to hear someone saying that silly, feminine things like “issues” and “agendas” are a mirage hiding the reality that everything is about power, I can drop by a faculty lounge–or I could just listen to the monarcho-pagan faction of Vance-whispering “intellectuals,” like Curtis Yarvin. (As opposed to the entryist, neo-Falangist faction of Vance whisperers, whose primary distinction from Yarvin is that Yarvin doesn’t occupy a comfortable, highly prestigious academic position.)
I thought of this as I read Judge Chutkan’s opinion in the l’Arc de Trump case, and especially its discussion of the Commemorative Works Act. That statute imposes procedural requirements on the construction of works “designed to perpetuate in a permanent manner the memory of an individual, group, event or other significant element of American history.” The Arch is a commemorative work, of course. It’s described by the White House as “a monumental tribute to America’s first 250 years.” It’s deliberately designed to achieve a commemorative 250-foot height. It’s described by the unfortunate Paul Ingrassia as being “about remembrance” and by the tragic Mark Paoletta as honoring our nation’s veterans. It has gone on in this vein so ad nauseam that only a liar or a literary theorist could deny its commemorative function.
Rather than straightforwardly lying, which would have been refreshing, the Trump regime went the lit-crit route. It argued that the plaintiffs had not shown the arch was commemorative, because, really, it means everything and nothing and at best “may” mean something. It is, in short, the nation’s single largest freestanding Derridean floating signifier.
Moreover, it doesn’t exactly have a definite meaning yet, no matter how many times the president has discussed and described it. (This is, of course, consistent with the “who are you gonna believe–me or your lawyerin’ eyes?” approach that Stanley Woodward took during the golf course hearings. Only this executive branch could combine an insistence on unitary status with an equally strong insistence that judges credit its lawyers’ assertions over the president’s own statements.) The Arch, they argue, will mean what it means when they get around to deciding what it means. So it’s not just the Arc de Trump or the Trump Memorial Floating Signifier; it’s also Schrodinger’s Arch!
From the government brief:
Plaintiffs assert that the arch will “honor” or “celebrate” the Nation’s 250th anniversary, but that does not mean it is designed to perpetuate the memory of that element of history. Celebrating the anniversary by building a structure and using the structure to perpetuate the memory of the anniversary are not necessarily the same thing. Further, Plaintiffs lack evidence that a final decision has been made as to what the arch is designed to celebrate or symbolize. Whereas the CWA covers backwards-looking projects that commemorate something, the arch may be a forward-looking design, intended to inspire future American greatness. Indeed, one designer proposed that the arch “is not primarily a monument dedicated to the dead, but to the living, to this great country and its perseverance.” Dkt. 44-2 at 11.
Further, the definition of commemorative work excludes “a structure which is primarily used for other purposes,” and Plaintiffs have not shown that the arch will “primarily” be used to perpetuate the memory of a significant element of American history, rather than for another purpose, such as a decorative gateway to D.C., a tourist attraction, and a national security hub. The primary purpose of the structure is up to the government to decide, not the Plaintiffs.
Shockingly, Judge Chutkan declined to accept this deconstructionist fantasia. I guess that’s just conservatively inclined procedural liberalism for you.