Notes on constitutional interpretation

What follows is by no means new, but I just wanted to try to apply critiques central to literary theory to a new set of circumstances to better illuminate them for myself.

One of the pillars of the Tea Party is the importance of the Constitution. As the argument goes, the Constitution says what it means. It does not need to be interpreted by a judiciary because if the Framers had wished to include this statement or that clause, they would have. To put it another way, the Constitution is self interpreting.

No text is self interpreting.

Heidegger makes the point:

If, when one is engaged in a particular concrete kind of interpretation, in the sense of exact textual interpretation, one likes to appeal to what “stands there”, then one finds that what “stands there” in the first instance is nothing other than the obvious undiscussed assumption of the person who does the interpreting.

The assumptions Heidegger talks about here are exactly those assumptions that we are trying to understand better.

If Glenn Beck were to say that the Constitution guarantees the right to bear arms, we are still relying upon the interpretation of Glenn Beck. He is engaged in an act of reading the Second Amendment. To put it another way, the Constitution does not open its 200+ year old, wrinkled, parchment mush-mouth and tell us exactly what it means. Each person that is engaged in explaining what the Constitution means is interpreting it. There are two actions here that we need to be acutely reminded of. One is the action of creation and the other is the act of reading. Authors are involved in the first, while everyone else is always occupied with the second.

Consider these sentences:

1. The Constitution means x.
2. The Constitution meant x.
3. The Framers meant x when they were writing the Constitution.

Each of these three statements rely upon different styles of persuasion and accordingly each are not semantically congruent.

In Sentence 1, the reading is in the present tense or the gnomic present, a powerful form of logos. The sentence rests upon an appeal to authority because it is not a qualified statement. “The Constitution means x” is not a statement situated in time or place; it is not a statement made by a narrator. It simply is. Thus, there cannot be counter-examples or other interpretations to potentially negate the truth claims of this statement. This is an extremely strong argument and as tends to be the case, often gets qualified, as we see in the other sentences.

In Sentence 2, a reading is proffered about what the Constitution meant when it was created. Here, what is understood is that at some time, probably near its inception, a community of scholars/politicians believed the Constitution to be x. Many are apt to look to the first Congress to better understand what the Constitution meant in policy debates.  This statement adds an element of time and place to a claim of meaning. It is reliant upon

1. a unified meaning of the Constitution at certain time,
2. the fact that we can know this meaning, and
3. that this meaning is somehow more important than any reading we can offer up now

This is fraught with problems. Concerning point 1, Was there ever a unified meaning of the Constitution? The Bill of Rights was adopted in the first Congress because the document was a compromise. Especially contentious is the claim that it is possible to understand this older/other world. How is anyone supposed to understand an agrarian society without modern amenities? Can we, in the words of Gadamer, merge our two worldviews? And to the final point, it is clearly obvious that mores, appropriate social behaviors, and communal responsibilities have changed, even in one generation. Should the Constitution, a document from a pre-industrial world, be a lodestar?

The last sentence, sentence 3, concerns the intent of the authors. Again, a similar critique about knowledge of the world of the authors can be levied here. But here, the intent of the author is highlighted. And as Wimsatt and Monroe pointed out, it is a fallacy to say that the meaning intended by the author is of primary importance. As they said in their article, “The Intentional Fallacy”:

The design or intention of the author is neither available nor desirable as a standard for judging the success of a work of literary art.

I am willing to extend this to the Constitution. Not only is the intent of the authors unavailable to us, the success of the Constitution is not predicated on its authors. Just as success in literature is its reception, the success of the Constitution has been in its execution.

As concerning the authorial intent, there is much more to be said, and I currently have a draft post on the subject, but I just wanted to put these other idea out there. Toodles!