Legal Commentary

One of the reasons I have spent so much time thinking about the practices of constitutional change is that I do not think that one can usefully engage in normative constitutional theory without paying at least some attention to what positive constitutional theory teaches us. To put it simply: ought implies can. We should not expect from judges?or from the constitutional system for that matter?practices of constitutional decisionmaking that they simply cannot provide. And we cannot adopt a theory of constitutional interpretation that the actual system of constitutional law could never be faithful to. We know that constitutional law and doctrine have changed markedly in many different areas over time. We also know that constitutional doctrine responds to the work of social movements and political parties and tends to reflect the vector sum of the dominant political forces of the time. A theory of constitutional interpretation that cannot account for these features of our system of constitutional decisionmaking will be inadequate to the task. Hence normative theories of constitutional interpretation must do different work than most law professors currently think they do.

The most important function of theories of constitutional interpretation is not to constrain judges in difficult and contested cases. Constraint mostly comes from other institutional features of our political system. Rather, normative theories about constitutional interpretation are important because they help us understand and express claims about the legitimacy or illegitimacy of our current constitutional arrangements, precedents, and practices. Call these the Constitution-in-practice. In a constitutional culture like our own, many different people have ideas about what they think our Constitution stands for. Theories about how to interpret the Constitution offer us a language to defend and criticize parts of the Constitution-in-practice with the hope of moving it closer to our ideals of what the Constitution should be.

Citizens? ability to make claims on the Constitution and to demand that existing arrangements conform to their views is important to maintaining its legitimacy over time and to serving as ?our law??that is, as a common object of fidelity and attachment. The Constitution maintains its legitimacy to the extent that people with very different commitments can reasonably view it as sufficiently worthy of their respect and obedience so that all of them can enjoy the benefits of the rule of law, social cooperation, and political union. Different citizens, from their varying perspectives, must be able to see that the constitutional system, understood in its best light, is sufficiently just that they can accept it as theirs, or?if it is not currently sufficiently just?they must be able to have faith that it could become so in time.

The Constitution-in-practice, however, may fall well short of these standards. And things may get worse, not better, over time. Therefore citizens must have ways to critique our existing arrangements, to talk back to courts and other political actors, and to persuade their fellow citizens about what the Constitution requires. They need tools to help identify what features of existing arrangements are sufficiently faithful to the Constitution and what features are not faithful.

Theories of constitutional interpretation form part of this tool kit. They offer platforms, concepts, and languages for legitimation, critique, persuasion, dissent, and mobilization that might promote eventual constitutional reform. These activities?legitimation, critique, persuasion, dissent, and mobilization?are central parts of our shared (and perpetually contested) constitutional culture. They matter both to the legal profession and to the political life of our nation. No doubt lawyers, judges, and legal academics will probably develop more sophisticated and complicated theories about interpreting the Constitution than most ordinary citizens. But citizens in a democracy must also have their own understandings and opinions about what makes constitutional claims?and existing arrangements?faithful or faithless to the Constitution.

Thus, theories of constitutional interpretation serve two basic tasks?and the method of text and principle helps us perform both of them. First interpretive theories should let us explain why valuable features of our existing constitutional arrangements are faithful to the constitutional project correctly understood. There are many ways that the American constitutionalism might have evolved, depending on political, social, and economic contingencies. One goal of theories of constitutional interpretation is to explain and justify our existing forms of development in hindsight.

Second, precisely because the Constitution-in-practice responds to mobilizations, social movements and political parties may have promoted unjust and unconstitutional policies that become widely accepted and part of the Constitution-in-practice. (Think, for example, about the construction of Jim Crow as a constitutional regime that lasted for the better part of a century.). Therefore theories of constitutional interpretation should let us produce viable critiques of existing practices in the name of a deeper constitutional fidelity.

This second criterion is particularly important: It is not enough to have a theory of constitutional interpretation that explains why everything that has happened is perfectly fine. Such a theory will be nothing more than an apology for the actual; it will abdicate our political and moral responsibilities to be faithful to and to continue the constitutional project.

We need more than a theory that explains why many of the changes in our constitutional practices have been faithful to the American constitutional project. We also need a theory of constitutional interpretation for dark times?that is, times when our views of what the Constitution really means have been submerged and disrespected by the dominant forces in society. During such times citizens and members of oppositional social movements must obey positive law, but they do not have to accept it as correct or faithful to the Constitution. They can protest it in the name of the Constitution and work to change people?s minds. But to do this, citizens need normative leverage to challenge the existing practices of constitutional law so that they can restore or redeem the Constitution?s promises. Citizens need a way of grounding their claims about the Constitution that is independent from the Constitution-in-practice. Interpretive theories make it possible for people to pledge faith in the Constitution even though the Constitution-in-practice falls short of what think the Constitution is and should become.

Above all, citizens need a theory of interpretation for dark times because the present is always dark times for somebody?s vision of the Constitution. Often it is dark times for both sides of an ongoing national controversy like abortion or gay rights. For example, although I argue that the most faithful interpretation of the Constitution protects women?s rights to abortion, I know that many of my fellow citizens disagree with me. For them, the continued enforcement of abortion rights makes a mockery of the Constitution, just as for me the limitation or undermining of these rights flies in the face of the Constitution?s guarantees of equal citizenship and fundamental rights. Each of us, in our own way, needs ways of talking about the Constitution that do not take existing arrangements as presumptively legitimate, that do not require us to bow down to the idol of the Constitution-in-practice.

You will notice that the first task I set for an interpretive theory?legitimation?presumes the standpoint of someone who seeks an attractive normative account of the existing constitutional order as it has developed through the play of political and social forces. The second task?critique?presumes the standpoint of a constitutional dissenter. Both of these standpoints are necessary to a successful constitutional theory. Moreover, these two perspectives actually depend on each other. It is precisely because people in the past were dissatisfied with the constitutional order of their day, and mobilized to change people?s minds about what the Constitution really means that they succeeded in establishing changes in constitutional culture and constitutional doctrine. These changes have become part of the established order that we now try to explain and legitimate. Conversely, present-day constitutional dissent usually begins with the assumption that at least some of these changes in the constitutional order are justifiable, and what the dissenter is doing is following in the footsteps of the successful and honored political mobilizations of the past. Today?s constitutional dissenter hopes to create part of the dominant constitutional vision of the future, the Constitution-in-practice that future interpreters will seek to defend and legitimate.

The theory of text and principle can serve both of these functions of legitimacy. It is a constitutional bulwark that can legitimate the best in the many transformations our constitutional system has undergone, and it is a constitutional refuge for dark times. It allows people to recognize that valued aspects of the Constitution-in-practice have kept faith with the Constitution despite the manifold changes in American life since the founding; yet it also preserves a powerful position from which people can critique features of our existing practices. It creates a space for aspirational claims and for constitutional dissent. It allows people to understand their present situation in terms of the Constitution?s abiding commitments, it lets people critique the Constitution-in-practice through a return to first principles, and it helps people mobilize and persuade others by appealing to common values, symbols and commitments. The central idea that we should be faithful to the Constitution?s text and underlying principles is both intelligible and plausible to ordinary citizens, while its legal implications are sufficiently complex for constitutional lawyers and theorists to articulate and expand in theoretically satisfying ways.

If the Constitution is to be ?our? Constitution, we must be able to see ourselves as part of a project that unites past and present generations and projects outward into the future. We must be able to see our principles and commitments as the principles and commitments of those who came before us and of those who will come after us. The Constitutional text is the perhaps most conspicuous embodiment of the constitutional project that binds past with present and stretches out into the future. And the language of restoration and redemption of constitutional principles well captures the sense of fidelity to the constitutional project over time. Hence it is not surprising that successful social and political movements have looked to the constitutional text and to enduring principles as a ground for their normative critique of present day arrangements.

Originalism and textualism, in their various forms, have been central methods for the legitimation and critique of regimes and practices of belief. And not only in America. I would venture to say that in almost every creedal community?every community that organizes itself around a set of practices and beliefs inherited from the past?a return to origins and to basic principles is a standard method for urging reform, even radical reform.

In a creedal tradition organized around a central (or sacred) document, each generation?situated as it is and facing the problems that it faces?places glosses on the document, and these glosses are bequeathed to the future as what the document means. Later generations, finding these interpretations inadequate to their time, try to remove some of these glosses and return to the original, redeeming its promise, but what they actually do is preserve some of the older readings while adding newer glosses atop them. The history of creedal texts is the history of continuous glossing and stripping away of glosses; and continuous claims of return, restoration and redemption that are, from the perspective of later generations, yet more readings and rereadings that must someday be critiqued, judged and possibly undone.

I do not claim that this is true as a matter of logical necessity. I do claim it is characteristic of the American constitutional tradition, and, indeed, of many other traditions as well. Repeatedly constitutional dissenters and insurgent movements have turned to the constitutional text and to the great deeds and commitments of the past?including most particularly of the founding generation?as a justification for their assault on the status quo.

My friend and colleague Bruce Ackerman has famously denounced what he calls the ?myth of rediscovery? in American constitutional law?the notion that we can justify major transformations like the New Deal as a return to original principles and commitments. In fact, Ackerman argues, American constitutional development features a succession of generations engaged in acts of constitution making that displace and build on older ones.

I agree with Ackerman that the history of American constitutional development has been one of continuous change, but I disagree that the ?myth of rediscovery? is a myth in the pejorative sense that Ackerman means to convey?a false story that obfuscates the truth about social life. Rather, myths are stories that reveal deep verities about the human condition. So it is with our life as a constitutional community. The tropes of fidelity to text and principle, and of their restoration and redemption in history are not simply fables we tell ourselves. These tropes allow us to see the Constitution as a transgenerational project that connects different generations and identifies them as a single people stretched out over time. The notion that we, like those before us, are faithful to the Constitution?s text and underlying principles, and that our job is to restore and redeem them in time, allows the Constitution to achieve simultaneously the multiple functions that a constitution like America?s must perform?a basic framework for politics and law making; a honored source of values and aspirations; and an cherished object of fidelity and attachment that symbolically binds different generations to each other and allows them to identify with each other over time. In short, fidelity to text and principle allows Americans to see the Constitution simultaneously and successfully as basic law, as higher law, and as our law.

Full post as published by Balkinization on May 09, 2008 (boomark / email).