5.8 Constitutions are inherently meaningless

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

The present theory expounds a manner of Constitutional construction as a trend issuing from the Constitution's structural features and their central role in using the Constitution as a government blueprint. For the constitution to produce a workable government, it must cause, not recommend, obedience to its structural design and the goals normally served by these design features. This theory differs from the usual run of theories, such as Originalism and Interpretivism, in absence of mandate. The only thing to be said for relying on this structure-function theory of interpretation in performing interpretation is that it will help you pick the interpretation with some likelihood of being deemed right in the long-term. Arguments tend to gain force to the extent that they line up with the predictions the theory makes. Described is the only theory needed to solve the problem for a theory of interpretation, the interpretive enigma.

Not merely the only theory we need, it is as much of a theory as we can have. The constitutions of some jurisdictions, containing clauses instructing on the manner of interpreting the constitution, show why we can't have a deliberative theory. Express provisions often instruct to look first to the ordinary meaning of the terms and stop there in the absence of ambiguity. Interpreters of constitutions without explicit provision for their interpretation usually arrive at this conclusion, and it doesn't rescue them from interpretive conflict; this provision could increase interpretive-method differences because it causes an explicit focus on a particularly subtle meta-theoretic issue. Whether it increases or decreases the interpretive variance, it doesn't eliminate or trivialize it. Any written standard must be interpreted. It is fundamentally in a position no different from other constitutional provisions.

Sometimes theorists maintain that a method of interpretation is implicit in having a written constitution. Since the constitution enacts words for the general public obedience, these theorists say, having a written constitution implicitly means using a textualist method of interpretation, but a text can't adequately dictate methods to interpreters. A common rejoinder points out that the people enacted the text, not some associated meanings or not the intent behind the text, and so, if the Framers had wanted the country to look to their motives, they could have said so in the text. The rejoinder begs the question. Provisions were enacted; but to construe the voting ritual as an endorsement of the text may seem natural, yet it is logically arbitrary.

Why does it seem natural to interpret a provision as equivalent to its text? Not because in interpreting cultural products in general we impose these limits. When a drillmaster counts the march beat, the numbers or other sounds he uses are beside the point. To interpret is to assign meaning relative to current purposes channeled by habit; interpreting laws by the public meaning of their text is natural because of myriad legal habits. A constitution means nothing except in a culture prepared to receive it, and it means what it does only because of the manner of reception given by habits of thought.

If a culture prepared to interpret the constitution preconditions its playing an actual governing role, a constitution will produce workable government only to the extent that interpreters are impelled to choose an interpretation that reliably ensures sufficiently coherent development. The constitution's actual provisions must cause their "correct" interpretation by means other than direct mandate or implicit direction.

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.

5.6 Adjudicating without a theory of Constitutional interpretation

(Sixth in The interpretation of statutes and the denial of judges' power series.)

Substantive Constitutional questions are eventually settled semi-permanently, but methods of Constitutional interpretation are rarely settled. This order of business is irrational because fundamental disagreement about interpretive methods obstructs judicial debate about specific provisions' meaning. How can you debate what the Constitution means when you don't agree about what it means for the Constitution to "mean" something?

One proposed pragmatist solution (Mitchell N. Berman, Originalism is Bunk (2009) 84 N.Y.U. L. Rev. 1; hat tip, Legal Theory Blog) illustrates the problem besetting pluralist resolutions of the problems of interpretation. As a description of much of the judiciary's workings, this account seems approximately right, but it doesn't solve the interpretive enigma: how can judges debate Constitutional meaning when they disagree about the basic nature of the meaning they're trying to elucidate? If the courts solve the problem of interpretation in tandem with the substantive issue presented, as Berman argues, what interpretive method do the courts use for that amalgamated determination?

The point is easiest to understand from a hypothetical Berman provides concerning a non-Constitutional matter that yet addresses how the court might select interpretive methods contextually. (Berman, Originalism is Bunk, supra, at p. 45.) A radio station offers a reward to the first call-ins after 12 a.m., which the offeror believed means noon. Listeners satisfying the literal (earlier) midnight opening sue based on public meaning. To avoid considerations of equity unrelated to meaning, imagine the governing statute refers simply to "meaning." Should the court respect the offeror's meaning or the public meaning?

Claims Berman, the court doesn't need an interpretive theory to read "meaning" as public meaning because it is least disappointing to the rightful expectations of participants and most consistent with the function of announcements, but what makes those factors criterial? A tacit interpretive theory leads Berman to select interpretive methods according to the public purpose of the message and the expectations of the recipients. A pragmatist standard, it elevates short-term satisfaction and sets shallow goals achievable with certainty. (An alternative standard might be formalist and seek to align the meaning of "meaning" as used throughout the code.) Berman's pragmatist stance injects judicial preferences into the decision, although doing so in the hypothetical is relatively innocuous. Berman's approach in principle amounts to a form of result-driven adjudication, so universally rejected (again, in principle) and deemed so insulting as an accusation that in some jurisdictions an attorney may be sanctioned for disrespect after so describing a decision.