The Legal Hermeneutics of Constitutional Interpretation, Coursework Example

That questions of the interpretation of the Constitution are a decisive feature of American political and legal life is clear to the extent that the document plays a clearly foundational status for the American social order. Accordingly, central to the latter is the notion of hermeneutics: how should the Constitution be interpreted? In order for the posing of this question to be as rigorous as possible, what is required is an initial meta-questioning as to what hermeneutics itself – in its general as well as its legal and political form – entails. For the various responses to the question of how one should interpret the Constitution presuppose specific theories of interpretation. In the case of original intent the presupposition operative is that it is entirely plausible for the interpretive act to re-construct the logic that informed the composition of the document. What is clearly questionable about this approach is that it assumes that such logic remains in some transcendent state: it overlooks the precise social and historical context that informed the Constitution’s composition, as well as the precise social and historical context that informs our contemporary interpretations of the Constitution.

Insofar as such a hermeneutic theory that emphasizes context remains valid, one can see the immediate problem with any type of postulation of original intent. As Goldford suggests, “if we in fact are not able to choose between reading the Constitution in original terms and reading it in contemporary terms, if in fact we can read the Constitution only in contemporary terms, then we cannot be orignalists as opposed to nonorigionalists or nonoriginalists as opposed to originalists.”[1] In short, even the position of the so-called originalists remains conditioned by “contemporary terms”; it is a specific response to the temporary political climate, where perhaps the belief in the reliance on a traditional approach and the appeal to a conservatism are viewed as immediate solutions particular problems.

What is all the more difficult about such a position of original intent is that to the extent that such an intent is viewed as important in “contemporary terms”, it implies that the Constitution almost bears a trans-historical force, capable of governing efficiently any political and legal situation, irrespective of the particular historical, material and social conditions that constitute it. This can almost be considered to be a mystification of the capability of the Constitution in regards to its political potentiality to govern.

This of course is not to suggest that the Constitution resembles a piece of scripture; it of course sets out a political system, however, one that evidently remains subject to interpretation because of the interpretative essence of language itself: this is the primary claim of hermeneutics. Accordingly, as Shalin notes “in the past, the U.S. constitution was deemed to be compatible with slavery, racism, ethnic discrimination, economic monopoly, limited political suffrage – none of thse readings have survived the test of time. New interpretations continuously emerge on the hermeneutical horizons of U.S. constitutional history.”[2] The problem is therefore not that the Constitution itself as document is incoherent and ultimately vague, but rather that insofar as it is interpreted it is subject to relative pragmatic utilizations. This is therefore not a problem related to any perceived shortcomings of the Constitution, but rather one endemic to the interpretations of text in their entirety.

According to the flux of hermeneutic interpretations, does this infer that one must concede to a form of bland relativism, according? The fact that a multiplicity of hermeneutic interpretations exists clearly does not discount that certain interpretations have been mobilized in history: the aim, therefore, is not to reject this openness of the interpretive horizon that the Constitution opens, but rather to understand that our interpretations may constantly change. In this sense, we have to abandon the position of original intent in regards to the Constitution to the extent that the greatest commonality between original intent and “contemporary terms” is a shared attempt at interpretation: the framers of the Constitution tried to interpret the world, much like contemporary constitutional scholars attempt to interpret both the constitution and the world.

In this regard, common social conditions such as the Shay’s rebellion are commonly cited as an impetus for a governing document such as the Constitution: the latter was a particular response and interpretation of historical events. Hence, Brown notes that “from the time that the Constitution was written, Shays’s Rebllion has been regarded as a catalyst in the movement for the Constitution and for its ratification. Washington and Madison saw it that way…the evidence supporting this interpretation is already substantial and more is in the offing.”[3] From a greater historiographical position, it is clear that such a thesis shows the historian’s attempts to re-construct the aetiology of Constitutional composition; however, at the same time, such a re-construction remains limited by the heterogeneity of hermeneutic activity itself. There are two tensions at stake here: on the one hand, the attempt to re-construct a narrative from existing “empirical” evidence: on the other hand, a position that states that a rigorous re-construction can never be advanced. Accordingly, questions such as “what role was democracy to lay in this new government?” and “in the minds of those who crated it, what was the role fo the new federal government to be?” presuppose the viability of an original intent approach. This is not to question the validity of these questions, for precisely such inquiries are the content of historical writing. Yet perhaps one can understand the writing of the Constitution itself in this hermeneutic manner: the new document was necessary according to the very interpretive nature of existence, a response to the plurality of all interpretations. The Constitution itself remained open to interpretative change, and tried to assert a basic context within which interpretation itself could be carried out. Hence, as Mann and Roberts suggest “Although the framers of the U.S. Constitution enumerated precisely what rights and authority were vested in the new national government, they considered it unnecessary to list those liberties the people were to reserve for themselves.”[4] Accordingly, subsequent fears that “federal government might abuse its powers”[5] were themselves addressed in the Bill of Rights. From this perspective, the Constitution itself can be read as a response to an interpretive challenge and therefore the attempt to establish a minimal interpretative framework wherein legal and political life could be carried out.

This conclusion, however, while based on a basic hermeneutic principle that all situations are interpretative and thus original intent arguments are ultimately unfeasible prima facie seems to embody a contradiction: is the suggestion that the Constitution exists as a framework within which interpretive dialogue can be carried out not an explicit statement of the original intent of the Constitution authors? If original intent is a myth to the extent that we can never truly capture the exact hermeneutic horizon of the past following the heterogeneity of language in order to understand “pure intents”, such an interpretation nevertheless allows us to re-frame the question of intent according to a response to the particular interpretive challenges of political and social life that exist any time there is such political and social life. Perhaps this is the greatest strength of the Constitution: the realization that such contexts are subject to change and interpretation, and thus the creation of a document that itself recognizes this flux inherent to political life, attempting to deal with it in a manner appropriate to the interpretative essence of language. Original intent of the Constitution would thus be transformed into the Constitution’s consciousness of the hermeneutic/Interpretive nature of language: the content of the Constitution would be a reflection of this conclusion, thus acting not as a codex of dogmatic laws, but rather as a flexible political and legal framework attuned to the problems language and interpretation inherently bear.

Bibliography

Brown, Richard B. “Shay’s Rebellion and the Ratification of the Federal Constitution.” In R.

Beeman et. al. (eds.) Beyond Confederation: Origins of the Constitution and American National Identity. Chapel Hill, NC: University of North Carolina Press, 1987. pp. 113- 128.

Goldford, Dennis J. The American Constitution and the Debate Over Originalism.

Cambridge, UK: Cambridge University Press, 2005.

Mann, Richard A. and Roberts, Barry S. Smith and Roberson’s Business Law. Mason, OH: Cengage, 2009.

Shalin, Dmitri N. Pragmatism and Democracy: Studies in Social Theory, History, and Progressive Politics. New Brunswick, NJ: Transaction Publishers, 2011.

[1] Dennis J. Goldford. The American Constitution and the Debate Over Originalism (Cambridge, UK: Cambridge University Press, 2005), 15.

[2] Dmitri N. Shalin, Pragmatism and Democracy: Studies in Social Theory, History, and  Progressive Politics (New Brunswick, NJ: Transaction Publishers, 2011), 201.

[3] Richard B. Brown, “Shay’s Rebellion and the Ratification of the Federal Constitution”, in Beyond Confederation: Origins of the Constitution and American National Identity, ed. R. Beeman et al., (Chapel Hill, NC: University of North Carolina Press, 1987), 113.

[4] Richard A. Mann and Barry S. Roberts, Smith and Roberson’s Business Law (Mason, OH: Cengage, 2009), 67.

[5] Ibid., 67.