‘In that case we start fresh,’ said Humpty Dumpty, ‘and it’s my turn to choose a subject–‘ (‘He talks about it just as if it was a game!’ thought Alice.) ‘So here’s a question for you. How old did you say you were?’
Alice made a short calculation, and said ‘Seven years and six months.’
‘Wrong!’ Humpty Dumpty exclaimed triumphantly. ‘You never said a word like it!’
‘I thought you meant “How old ARE you?”‘ Alice explained.
‘If I’d meant that, I’d have said it,’ said Humpty Dumpty.
‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean–neither more nor less.’
‘The question is,’ said Alice, ‘whether you CAN make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master– that’s all.’
(From Through the Looking-Glass, and What Alice Found There (1871), by Lewis Carrol)
America has the oldest Constitution in the world, adopted in 1789. America also has a Constitution Party which, by the way, got the 37% of the votes in the gubernatorial election in Colorado last November with Tom Tancredo as candidate. America also has a Tea Party (closely tied to the aforementioned), which had a quite successful result in the mid-term election and whose leaders repeat ad nauseam that they are fundamentally inspired by the Constitution (and the Bible, for that matter) and they’ll only act in line with the sacred text (either), even if one (?) of them, Ms. O’Donnell from Delaware, doesn´t seem to be fully aware of the meaning of the 1st Amendment. But never mind…
Garret Epps formulates a very important question in a recent article in The Nation: Why has the right done such a good job of putting out its invented “Constitution”? Why is it that hardcore conservative Americans assume that the Constitution agrees with them 100%, and progressive Americans (and independents and everybody that doesn’t fit in the GOP mold) accept so and give up?
The Constitution is a pretty old text, a fundamental text that inspires American decision-making and legal development. But the Constitution is a document written by men (literally, men; not women) more than 200 years ago. The Constitution, the American one and any other, requires interpretation. Then and now.
There are at least three main perspectives that may lead us to interpret legal rules in one way or another (from Igartua, 1993, Professor of Philosophy of Law I had the privilege to learn from): Semantics, System and Function. Let’s start with the first one. The American Constitution can perfectly be interpreted according to the exact meaning of the words within contained. The problem is quite obvious: The meaning of some words changes over time. For example, the word ‘person’ in 1789 and the word ‘person’ in 2011 don´t match, do they? If that was the case, slavery wouldn´t have been abolished in 1865 (Amendment XIII), women wouldn´t have got the right to vote in 1920 (Amendment XIX) and Martin Luther King wouldn´t have died in 1968.
A second possible exercise of hermeneutics, then, is to look at the Constitution in its systemic context, that is, in line with the rest of the legal order, including international law (“all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land”, Article VI of the Constitution). The point of this systemic approach is that the legal order as a whole, as a system, ought to be consistent; therefore, the interpreter must try to read the Constitution in accordance with the rest of applicable rules.
Finally, we must pay attention to the function of a norm. Considering the interrelation of the law with other spheres of social life (economy, politics, culture…), one must think about the purpose of the Constitution: What do we need the Constitution to say in the America of the 21st century? What are American people’s needs? How can the Constitution (and its interpreters) help people develop their lives and interact in harmony?
Legal reasoning and interpretation is a continuum in the life of a nation. By definition, it can never be over, since the society will always change, evolve, learn and adapt itself to the future. Chief Justice Marshall himself had to interpret the Constitution only 14 years after its adoption in Marbury v. Madison (1803). This was a landmark case that established the judicial review, an innovation (at the time) that was not at all expected by the Founding Fathers and without which the Constitution faced the likely risk of becoming a mere programmatic letter of interest. Many years later, in Marsh v. Chambers (1983), Justice Brennan explicitly rejected the alleged ‘definitiveness’ of constitutional meaning, arguing that “the Constitution is not a static document whose meaning on every detail is fixed for all time by the life experience of the Framers”; he contended that the Constitution must be understood instead as “a document meant to last for the ages”, the bearer of an “inherent adaptability” that could not be restricted by any “static and lifeless” meaning.
Two very important legal scholars can help me finish up this post:
“When lawyers reason or dispute about legal rights and obligations, particularly in those hard cases when our problems with these concepts seem most acute, they make use of standards that do not function as rules, but operate differently as principles, policies, and other sorts of standards”; Ronald Dworkin (1967).
“Because judges (and any legal scholar, politician, journalist, or whoever is willing to read a legal text, I would add) must be able to justify their decisions, they must also be able to justify the means of interpretation that they employ to reach those decisions, particularly if their choice affects the ultimate result or significance of a case. Judges (and others, I’d say) must be able to explain why they have decided to interpret the Constitution through one set of inquiries rather than another”; Robert Post (1990).
The American right-wing is perfectly free to interpret the Constitution in any given way. It can look at the exact meaning of the words in 1851, 1911, 2001 or whenever if they wish. They can also refuse to listen to anybody but the Founding Fathers and perhaps also other writers of the Federalist Papers. They can claim that the Amendment II allows all US citizens to carry weapons in planes or that Amendment I and XIV are inconsistent with some sort of ‘spirit’ of the original Constitution. Anything is possible. But they must let the American people know the reason why they choose between one possible interpretation and another. They must openly say what lies under their particular choices. Acknowledging the scope of legal and constitutional interpretation is of critical importance in a democracy; otherwise, ‘the question is,’ said Humpty Dumpty, ‘which is to be master– that’s all.’ And Americans and the rest of the world don´t need a few to be the masters.