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Kagan here, Kagan there. Does it matter? Stanley Fish at the New York Times reviews The Living Constitution, a new book by David A. Strauss which says that the Constitution has primarily a Ceremonial Role

By Andis Kaulins

Kagan here, Kagan there. Does it matter?

In Why Bother With the Constitution, Stanley Fish reviews The Living Constitution, a new book by David A. Strauss, the Gerald Ratner Distinguished Service Professor of Law at the University of Chicago Law School. The book by Strauss presents what is at first glance a somewhat startling hypothesis, as Fish relates Strauss's core conception:

"[T]he Constitution does not play a central role in constitutional interpretation.

In the majority of instances, Strauss argues, ?the text of the Constitution will play, at most, a ceremonial role.? Even ?when a case involves the Constitution, the text routinely gets no attention,? for ?on a day-to-day basis, American constitutional law is about precedents, and when precedents leave off, it is about commonsense notions of fairness and good policy.?

Fish agrees to some extent with this hypothesis, writing:

"At least descriptively, the history of constitutional interpretation would seem to proceed as Strauss says it does, by a process of ?evolutionary accretion? and not by an act of fidelity to an original intention, that is, to an intelligent design."

However, on the whole, Fish disagrees and adopts an originalist viewpoint in his critique:

"The question is not, as Strauss would have it, is this proffered meaning in the Constitution? The question is, can a chain of inference be formed that links this meaning to something the framers can be said to have intended?"

Well, yes, and no.

We do not think either question -- as framed above -- is fully wrong or fully right. Perhaps the truth is somewhere in between?

We ourselves suggest a view of the U.S. Constitution which more closely approaches the interpretation of a work of art.

For example, the painted canvas of an oil painting can be seen as being comparable to the text of the Constitution. It forms the basis for appreciation. It constitutes the original form which is subject to interpretation -- yes -- but that physical "form" is not the original "meaning".

As Pablo Picasso said about his famed painting Guernica, which depicts the tragedy of war, but which nevertheless has been subject to widely diverging interpretations:

"...this bull is a bull and this horse is a horse... If you give a meaning to certain things in my paintings it may be very true, but it is not my idea to give this meaning. What ideas and conclusions you have got I obtained too, but instinctively, unconsciously. I make the painting for the painting. I paint the objects for what they are."

In a similar manner, when the Constitution of the United States contains the text "freedom of speech", then this text describes "that object for what it is" in the same manner that Picasso painted a bull or a horse, for what they are. The number of interpretations to such a painted object, on the other hand, can be as varied in meaning as the number of people viewing it. Still, the bull remains a bull and the horse a horse.

And so it is also with "freedom of speech" and similar texts in the Constitution.

Just as the actual "meaning" of a painting does not inhere either in the mind of the painter or in the mind of the viewer, the actual "meaning" of any text of the Constitution did not inhere in the entire subset of the minds of the Founders any more than that "meaning" inheres in the minds of anyone who today views the original text. The text depicts "objects for what they are", but their "meaning" resides outside of their physical presence.

Hence, by consequence, when we select Justices to the Supreme Court, we seek to obtain individuals who do not merely see "a bull or a horse" in a painting,  i.e. by analogy a particular textual clause of the Constitution, but rather we look to find gifted persons who are capable of giving the depicted objects a fundamental understanding within the context of the entire "scene" of a painting viz. the "full text" of the entire document, always -- and unavoidably -- interpreting those objects from the perspective of the present, with due deference to the past, and with an eye to the future.

Full post as published by LawPundit on May 12, 2010 (boomark / email).