5.7 Exploring the Interpretive Enigma

(Seventh in series: The interpretation of statutes and the denial of judges' powers.)

The interpretive enigma shows that it is impossible to interpret the constitution without a theory of constitutional interpretation. What it doesn't show is that there must be a unique reigning theory of interpretation. A different theory for different circumstances remains within the model. If courts use different theories depending on circumstances, the conceptual device assigning situation to theory is itself an overarching theory. Rather than choosing a theory based on a shared rationality, judges might choose theories arbitrarily, or they might use different overarching theories. Then no underlying idealization would depict the causal propensities in interpretive discourse.

How can we distinguish these conditions? If judges used different theories of constitutional interpretation, over time interpretations of the constitution would increasingly diverge. Increasingly, as schools of thought multiply, any consensus on the meaning of constitutional provisions would thin unless matters change with stare decisis. Broad precedential holdings may replace constitutional amendment in clarifying the constitution. The convergence new constraints impelled would offset the divergence of views, but this solution presupposes what it tries to explain, the progressive clarification of text by interpretation, a broad amendment-like holding requiring interpretation no less than the provision it construes. Precedent doesn't solve the clarification problem if precedential holdings also require interpretation, and the need to revisit interpretations seems too rare in comparison to construing the underlying text. The progression implies that the constitution is not only adapted to new circumstances but is better understood or at least more narrowly understood, so it is more reliably applied as it is further interpreted.

The underlying features that require consistent application to create a stable system are predominantly the formal functional characteristics of the structures the Constitution creates. Checks and balances and separation of powers are among the key formal functions of U.S. Constitutional structures.