Hermeneutics of the Supreme Court

By Crispin Sartwell

 

 

Constitutional law is bedeviled by a philosophical question: What, if anything, determines the meaning of words? The question has tantalized not only those who try to specify the principles on which the Constitution should be interpreted - including prospective Supreme Court justice John Roberts - but the greatest philosophers of the last century and a half, from Frege and Wittgenstein to Heidegger and Derrida.

    One lesson of this huge expenditure of brainpower is that questions of textual interpretation are extremely difficult. So it's a good bet that we're not going to make much headway in this corner of today's op-ed page. However, we might venture some observations.

    First of all, as especially Wittgenstein argued, words do not merely mean whatever the person who utters or inscribes them intends them to mean. If I tell you I'll meet you here at 3, it's no good later saying I meant there by "here" and 6:15 by "3." Indeed, as Wittgenstein points out, what I can possibly intend by saying something - unless I am actually deranged - is itself limited by the linguistic practices in which we engage together.

    But though it's not true that my words mean whatever I intend them to mean, it's also not true that they mean whatever you may take them to mean. It's as clear as anything could be that misunderstandings are possible. In fact, intention is clearly relevant to some extent: consider cases of poetic or highly figurative speech, or even more clearly, cases of sarcasm or irony in which I say precisely the opposite of what I mean.

    Consider this piece of the Constitution: "by and with the Advice and Consent of the Senate, [the President] shall appoint Ambassadors and other public Ministers and Consuls, Judges of the supreme court, and all other Officers of the United States, whose appointments are not herein otherwise provided for."

    This is hardly ironic or even figurative, but the task of interpretation is nevertheless complex. The passage was composed in collaboration and agreed by convention. What Hamilton and Madison or others thought they meant by "advice and consent," or by "Ministers and Consuls," or even by "by and with," for example, is significant. But so, and perhaps more to the point, are the uses of the terms in other documents of the era, or for that matter in our own era; after all, if you are reading this you are yourself a reasonably competent speaker of the same language in which the Constitution was written, though the language has evolved continuously since that time.

    Though an immersion in the legal and social contexts of the eighteenth century is obviously relevant, we also cannot escape the fact that our interpretations of those contexts and of the words to which they gave rise is happening here, now; the unavoidable fact is that the people who are striving to understand the words of the past are ourselves, in the present.

   This dilemma is captured in the philosophical term for textual interpretation: "hermeneutics." According to theorists of hermeneutics such as the great German philosopher Hans-Georg Gadamer, we can never divest ourselves fully of ourselves, never approach the past as people approached it when it was the present. We bring with us our language, our experience, our prejudices, our history. What the Constitution means is always what it means to us. We cannot merely see what the text says: even trying merely to see what the text says is engaging in an activity of interpretation.

    On the other hand, Gadamer was no sceptic. He knew that in a sincere attempt to come to grips with traditions and texts of the past, we have to put our own experiences and prejudices at stake. That we cannot escape ourselves and our culture does not entail that we cannot have a genuine encounter with the past, only that that encounter is always a "fusion of horizons," in which we bring ourselves to the past and let ourselves be challenged and changed.   The fusion of horizons is possible in this case particularly because the history from the framers to ourselves is continuous. There are a thousand threads of meaning and history that connect us with the Constitution: a history of law and of language, of conflict and compromise, of clarification and obscurantism.

    If the attempts of philosophers to wrest meaning from the past teach us anything, it is that these questions are inexhaustibly complex. By contrast, the attempt to fix the meaning as "the intent of the framers" or for that matter to abandon history and treat the Constitution as a "living document" are remarkably simplistic. Both of these approaches are impossible: they ask us to abandon the present or to abandon our history.   

   As will be abundantly evident in Roberts's confirmation hearings, many of us yearn for clarity and simplicity. But any real practice of legal interpretation acknowledges both that we live in the present and that our present is always also the continuation of our history.