Transition 2016

On Bullshit and the Oath of Office: The “LOL Nothing Matters” Presidency

By Quinta Jurecic
Wednesday, November 23, 2016, 11:28 AM

Back in 2005, Princeton University Press published a slim, slickly-packaged book with a provocative title by a philosophy professor named Harry Frankfurt. The book was a reprint of a short essay by Frankfurt, who had originally placed the essay in a literary quarterly almost twenty years earlier and had published it in a book of essays two years later. The essay had acquired little notice outside of narrow intellectual circles. The book was a bit of a sensation.

If you are finding Lawfare useful in these times, please consider making a contribution to support what we do.

Entitled On Bullshit, it quickly rocketed to the New York Times Best Seller List, where it remained for twenty-seven weeks. Apart from its prominence within the academy, it has since enjoyed a viral cultural life of its own. The local bookstore in Princeton, where I grew up, used to set out copies of On Bullshit by the cash register along with the postcards and bars of chocolate. It has more than 350 reviews on Amazon.com, where it ranks a remarkable #7,744—which is pretty good for a more-than-decade old work in, of all fields, moral and epistemological philosophy. On Bullshit ranks #28 in the Amazon category of “Ethics & Morality”—wedged poetically between Hannah Arendt’s Eichmann in Jerusalem and David Brooks’s The Road to Character.

I have a modest suggestion: As long as Donald Trump is President of the United States, On Bullshit should be assigned reading in every class in American civics or government at both the high school and college level.

Frankfurt’s essay is relevant not because Donald Trump is a liar, though he does appear to be one. It’s important to our present moment because of the distinction the essay draws between lying, an act undertaken intentionally to obscure the truth and which therefore must be performed with a knowledge of the facts, and bullshitting, an act undertaken without any relationship to truth whatsoever. When Frankfurt took aim at the role of bullshit in modern culture, I imagine he did not remotely foresee that he was telling the story of the 2016 presidential campaign of a major party nominee, much less that he might be telling the story of a presidency. But if you want to learn something about Donald Trump without ever reading the man’s name, On Bullshit is a good place to start.

I am not the first person to make this observation about Donald Trump, who gives every appearance of proudly moving through the world without ever bothering to consider how concepts of truth or falsehood might potentially shape his behavior. Trump just says things, some of which coincidentally happen to be true, many of which turn out not to be. During the presidential campaign, commentary on Trump as a bullshitter in the Frankfurtian sense of the word was a meme that made the rounds periodically. Frankfurt himself labeled Trump as a peddler of bullshit this past May.

But Trump’s victory forces us to consider what it means for the president himself to be, as it were, full of bullshit. How will his incessant bullshitting affect his ability to carry out the duties of his office? What does it mean to have a bullshit artist as President of the United States—a leader both responsible for and constrained by the rule of law? And more specifically, what does it mean to have a bullshit artist swear the Oath of Office and promise to “faithfully execute the Office of President of the United States,” when the notion of hewing “faithfully” to any commitment is so fundamentally antithetical to the character of bullshit?

Frankfurt’s essay is built around an anecdote told by a friend of Ludwig Wittgenstein, a philosopher famously concerned with the importance and weight of language. When Wittgenstein calls his sick friend to ask how she was doing after a medical procedure, she said, “I feel just like a dog that has been run over.” Somewhat callously, Wittgenstein responds: “You don’t know what a dog that has been run over feels like.”

The point of the anecdote, whether true or not, is that Wittgenstein is objecting to his friend’s “lack of connection to a concern with truth,” as Frankfurt puts it. Wittgenstein’s friend isn’t lying about feeling like a dog that has run been run over, because, as Wittgenstein points out, she can’t possibly know how that would feel—so she can’t be intentionally obscuring the fact that she feels differently from said dog. Rather, she doesn’t care whether what she’s said is true or not. She is, to use Frankfurt’s phrase, “indifferen[t] to how things really are.”

This is the freedom of bullshit. The liar has to know things in order to falsely present facts that are the opposite of the truth. The bullshitter doesn’t need to know the truth, or even think that he or she knows the truth. According to Frankfurt, this is also why bullshit is more dangerous than lying: the liar operates within the framework of truth and falsehood and therefore accepts the possibility that “there are indeed facts that are in some way determinable or knowable,” as Frankfurt writes. But bullshit glibly rejects the value and even existence of knowable facts. Bullshit is faithless, because it denies the existence of anything constant in which to have faith.

Does any of this sound familiar?

When I call Trump a bullshitter, in other words, I don’t mean it as invective but rather as a technical, philosophical description of our next president’s relationship with the concept of truth. The sheer volume of Trump’s bullshit ensures that any effort to archive or categorize his false statements will inherently fall short, so I’ll constrain myself here to one recent example: his claim on Twitter that the protests breaking out across the nation in response to his election were orchestrated by “professional protesters, incited by the media.” This was, quite obviously, not true, but the fact of its untruth (that it was a lie) is less relevant than the fact that Trump just made up whatever reality he found convenient (that it was bullshit). The president-elect was angry at those Americans who were upset as his victory; as far as he was concerned, their protests were illegitimate; so he said they were professional protestors. Who cares whether what he said was true or not?

Over the course of the 2016 presidential campaign, candidate Trump’s insistence on spouting a persistent stream of false statements—and his supporters’ apparent lack of concern as to whether those claims were true or not—resulted in an unusual amount of public soul-searching within the press corps regarding whether fact-checking still mattered. In the days following November 8, we’ve seen a related, roiling debate over internet companies’ failure to curb the distribution of fake news that may have influenced the election in favor of Donald Trump. One reporter summed up Facebook’s position succinctly:

And on Tuesday, November 15th, Oxford Dictionaries named “post-truth” the “word of the year,” crediting both Brexit and Donald Trump with the concept’s newfound prominence.

Clearly, we as a culture are having a metaphysical moment. As a representative of Oxford University Press clarified to the New York Times, “post-truth” is distinct from the process of interrogating truth or falsehood. Rather, it’s “saying that the truth is being regarded as mostly irrelevant.”

Thus do we find ourselves as a society confronting bullshit linguistically even as we have elected a President who embodies the concept. When asked by the Wall Street Journal in the days after the election whether he regretted any of his campaign rhetoric, Trump responded: “No. I won.”

The irony of all this, of course, is that the American right has spent thirty years objecting to the supposed war on the concepts of truth and meaning by the poststructuralist left, only to see key elements of its coalition embrace exactly that poststructuralist rejection in the form of Donald Trump.

So in two month’s time, bullshit’s American avatar will swear an oath to faithfully execute the office of President and preserve, protect, and defend the Constitution of the United States, and thus the rule of law, in this country. That raises some interesting problems: What does it mean when a bullshitter swears an oath, particularly when the oath requires a concept like faithfulness? And what is the relationship between bullshit and law?

It’s almost axiomatic to describe lawyers as bullshitters. But law is the very opposite of bullshit in Frankfurt’s sense of the word. It is, after all, a highly systematized structure of meaning used to evaluate the merit and relevance of facts and arguments. In that same capacity, it’s also a way of regulating which statements are valid understandings of reality or legal text and which are beyond the pale. We talk about being “laughed out of court”—but the existence of a “court,” in which claims can be weighed as true or not-true and law can be interpreted as though words matter, is exactly what bullshit rejects.

Indeed, to learn how to read law is to learn a complex system of code in which every word is freighted with meaning and every case that is cited is a signifier for some chain of history that must be understood in order to grasp the full meaning of an opinion or brief.  To cite an example almost at random, whether a lawyer writes or a court holds that the government is pursuing an “important” interest or a “compelling” one—two words that could reasonably be used as synonyms in everyday speech—can catapult us into two very different worlds. “Compelling” doesn’t just mean “compelling.” “Compelling” in this context is a term of art that invokes a highly specific sequence of meanings, assumptions, and repercussions.

Law is also a system of meaning that has force: it imposes consequences based on its ultimate ascertainment of truth and textual meaning. When a judge holds a pattern of facts to constitute a compelling state interest, that judge is not only speaking words but is also shaping the form of the surrounding world. In the most extreme instance, the judge “deal[s] pain and death,” as Robert Cover reminds us in his classic essay “Violence and the Word”:

Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life.… Neither legal interpretation nor the violence it occasions may be properly understood apart from one another.

When we speak in the language of law and with the force of law, in other words, we operate within a shared system of meaning and consequence.

This is the very antithesis of bullshit, which is precisely why we get angry when people get the law wrong (whatever our view of wrong happens to be) or analyze facts badly so as to engineer legal outcomes the real facts do not support. Bullshit is hostile to the concept of a shared truth or a shared system of evaluating truth or falsehood: to use Frankfurt’s language, the point of bullshit is that the bullshitter’s cheerful indifference to truth “reject[s] the possibility of knowing how things truly are.” This isn’t only a rejection of the concept of truth generally, but also a rejection of our ability to speak intelligibly to one another on the basis of a mutual understanding of the world—which is exactly what law provides in a free and open society.

In its detachment from meaning, bullshit is also detached from consequence. The bullshitter doesn’t need to care about the consequences of his or her words, because he or she can just as easily deny that those consequences ever took place. It’s not for nothing that the phrase “lol nothing matters” became somewhat of a refrain among political reporters on Twitter this campaign season every time Trump produced an obviously false or ridiculous statement. The point was not only that Trump was operating without relation to truth, but also that his glib idiocy would have no effect whatsoever on the success of his campaign. It’s also a reminder of how close bullshitting is to nihilism: nothing matters.

All this leads to a number of interesting questions about the role of law in a Trump administration. What, for example, is the role of the lawyer in a system run by a bullshitter? How do White House counsel and the Office of Legal Counsel communicate with the President in the language of law? How do they explain the limits that law places on the President’s power? Does the lawyer act as a fact-checker in the world of bullshit?

But let’s start with the oath Trump is going to take. The Oath Clause of the Constitution reads:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The language of the oath is echoed in the Take Care Clause’s requirement that the President “take Care that the Laws be faithfully executed.”

The President doesn’t need to be a lawyer or know and understand every law in order to “take care” or to be a “faithful” executor of the laws; that’s what counsel is for. But he or she does, it seems to me, need to understand the concept of law in the abstract as a system of meaning and power, and he needs to listen to the advice that his or her counsel provides.

Is it actually possible for a bullshitter to “take care” or to act “faithfully” in the execution of the law? Here’s Frankfurt presciently anticipating the question:

However studiously and conscientiously the bullshitter proceeds, it remains true that he is also trying to get away with something. There is surely in his work, as in the work of the slovenly craftsman, some kind of laxity which resists or eludes the demands of a disinterested and austere discipline.

I have my doubts. I suspect that the bullshitter’s foundational disrespect for meaning and consequence—in other words, the fact that the rallying cry of the bullshitter is essentially “lol nothing matters”—will make it impossible for Donald Trump to faithfully execute the laws of this nation and the duties of the Oath of Office and to preserve, protect, and defend the Constitution. It will make it impossible for him to take care in doing so. It will make it impossible for him to honor and tend to the system of law whose authority and significance he does not acknowledge or respect. To the extent he proves capable of these things, moreover, it will be because he ceases to be a bullshitter, a turn of events that is hard to imagine today.

Notably, the Oath Clause and Take Care Clause are unique among Article II requirements in being fundamentally incompatible by their nature with bullshit. A bullshitter is perfectly capable of serving as Commander in Chief of the armed forces, of making treaties, of receiving foreign representatives, and so on and so forth. He may perform all of these duties poorly, but he is theoretically capable of carrying them out. The requirements of the Oath Clause and the Take Care Clause, on the other hand, are fundamentally irreconcilable with the character type and the behavior. The bullshitter either stops being a bullshitter or he cannot honor these clauses.

To be clear, this is not a legal argument. I am not saying that a President Trump should not be allowed to take the oath of office because of what I see as his characterological inability to honor it; that’s what elections are for. But I am saying that there exists a foundational incompatibility between our President-elect and the duties of the office that he will soon hold and that we should thus expect serial questions to arise about whether he has, in fact, honored his oath and obeyed the Take Care Clause. And when those issues arise, we should understand from whence they spring. As citizens of a country that purports to live under the rule of law, we have a duty to insist that words have meaning—even when the President swears an oath he doesn’t even understand.

Topics: