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History and Theory, Theme Issue 50 (December 2011), 117-135

Wesleyan University 2011 ISSN: 0018-2656

CoNStItUtIoNal INterpretatIoN: a vIeW from a DIStaNCe


rIk peterS1

abStraCt

This paper explores how the notion of distance works in the practice of interpretation by studying the philosophical underpinnings of the originalism debate in american constitutionalism. focusing on some of its most important spokespeople, the paper shows that they start from the historicist presupposition that distance can in principle be overcome by a reconstruction of the original intentions of the framers of the Constitution. With the help of Hans-Georg Gadamer, who explicitly based his philosophical hermeneutics on the notion of distance, this presupposition will be criticized. The paper concludes that the originalist and hermeneuticist positions do not mutually exclude each other, but can be synthesized if they are seen as different questions about the same text. The meaning of the Constitution is therefore not given but is dependent on the direction of the questions asked by the interpreter. from this question-dependency of meaning it follows that interpretation follows the law of acoustics: angle of incidence equates angle of reflection. Keywords: interpretation, hermeneutics, constitutionalism, originalism, logic of question and answer
I. INtroDUCtIoN

The distance between past and present plays an important role in constitutional interpretation. Whenever the meaning of a constitution is at stake, interpreters have to decide how the text, which was written in the past, is to be applied to a present situation. This comes most clearly to the fore in judicial review. Judges who have to assert the constitutional validity of executive or legislative acts must have both the most thorough knowledge of the constitution and practical insight into its application in order to decide how the constitution should be interpreted. In this context, judges must form an idea of the meaning of the constitution, its history, and its legal function in order to answer the question of how it should be applied to a particular course of conduct or decision in the present. In all countries that have the system of judicial review, much has been written about the subject, but by far the most has been produced in the United States. This
1. the research for this paper was funded by NWo, the Netherlands organization of Scientific research. I thank my colleagues in the Contested Constitutions research project, laurence Gormley, peter a. J. van den berg, Jieskje Hollander, and Jelte olthof, as well as my colleagues in theoretical history, frank ankersmit, Jaap den Hollander, and Herman paul, for their critical comments and fruitful suggestions.

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is not surprising, because in the United States every court can challenge the constitutionality of laws. moreover, the Constitution of the United States is among the oldest in the world, so that a long jurisprudence on the subject is available. finally, from the beginning of american constitutional history, judicial review has always had important political implications, and this has led to a strong polarization of the debate. In american constitutional history, various camps have combated each other under various names, like interpretivist versus non-interpretivists, objectivists versus subjectivists, and originalists versus non-originalists. at face value, these names stand for a clear-cut issue of interpretation. on the one hand, interpretivists, objectivists, and originalists claim that constitutional interpretation should follow the original intentions of the framers as closely as possible. on the other hand, there is a group that argues that interpreters are allowed to distance themselves from the intentions of the framers. Stated in these terms, the debate concerns the epistemological and methodological aspects of constitutional interpretation; what are the conditions for the truth or fidelity of constitutional interpretation and how can we realize these? Questions like these have much in common with problems of interpretation raised in the fields of linguistics, literature studies, theology, and history. but in comparison with these disciplines the field of constitutional interpretation is much more politicized. This is not surprising when we consider that the interpretation of laws is binding. for this reason, judicial review does not take place in vacuo, but always has moral and political implications. This explains why, under the names of originalism and non-originalism, political struggles have been waged in which the discussants label each other with terms like conservatives versus liberals, fundamentalists versus relativists, and the like. The aim of this paper is not to stir up this hornets nest, but to study the philosophical underpinnings of the originalism debate in order to understand the practical implications of distance in hermeneutics. This problem has been underexposed because most philosophers have focused on the theoretical aspects of (historical) understanding. Though Schleiermacher, Droysen, Dilthey, Croce, Collingwood, Dray, and others were well aware of the practical implications of understanding, they focused on the epistemological and methodological issues. The most advanced discussions about the relationship between interpretation and practice are therefore not found in hermeneutics, but in the theory of legal interpretation. This was recognized by hermeneuticists like emilio betti and HansGeorg Gadamer, who hailed legal interpretation as the model for hermeneutics. Given its many moral and political implications, the originalism debate is an ideal case for showing the practical implications of interpretation. If one really wants to grasp the practical bearings of distance in interpretation, one must study the interpretation of a constitution. I will first discuss three rounds of this debate that have occurred since the 1970s, focusing on the most important spokespeople.2 I will show that the discussants have more in common than they are prepared to admit. In particular, the very question of how much distance from the original
2. for a general overview of the debate, see Daniel a. farber, the originalism Debate: a Guide for the perplexed, Ohio State Law Journal 49 (1989), 1085-1106; Sotirios a. barber and James e. fleming, Constitutional Interpretation: The Basic Questions (oxford: oxford University press, 2007).

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intent of the framers can be allowed necessarily presupposes that an interpreter can reconstruct original intentions. Next, I will criticize this presupposition from the viewpoint of Gadamer, who explicitly based his philosophical hermeneutics on the notion of distance, taking judicial review as his model. In the conclusion, I will show that surprisingly, the originalist and hermeneuticist positions do not exclude each other, but can be seen as different questions about the same text. from this, it follows that the meaning of the Constitution is dependent on the question the interpreter asks, or, in other words, that distance is dependent on the angle of approach of the interpreter.
II. reHNQUISt verSUS DWorkIN

Chief Justice of the United States William Hubbs rehnquist (19242005) was one of the most ardent defenders of originalism. In 1976, when he was still associate Justice of the Supreme Court, rehnquist expounded his views in The Notion of a living Constitution, a paper that has become a classic in the debate on constitutional interpretation.3 The term living Constitution was coined by the political scientist Howard lee mcbain as the title of a book published in 1927, in which he sought to understand the Constitution as a dynamic entity.4 In rehnquists view, however, mcbain never offered a comprehensive definition of the living Constitution, which is, in his opinion, nothing more than a shorthand expression for two different views of the Constitution, one true and one false.5 according to rehnquist, the true meaning of the living Constitution was expressed by Justice oliver Wendell Holmes (18411935), who said that the Constitution of the United States had called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.6 Holmes thus expressed the view that the framers use of general language gave latitude to their successors to interpret the constitution in particular cases the framers might not have expected.7 along these lines, rehnquist concluded that the Constitution may be applied to an activity or to a course of conduct that did not exist at the time of the adoption of the Constitution.8 rehnquist strongly contrasted Holmess view of the living Constitution with the false view. The false view demands that judges address themselves to solving social problems when other branches of government have failed or refused to do so.9 rehnquist illustrates this idea of the living Constitution with a brief that asks the judges of a United States District Court to declare that a certain prison will not be tolerated because its treatment of its prisoners offends the Constitution

3. William H. rehnquist, the Notion of a living Constitution, Texas Law Review 54 (1976), 693-706. 4. Howard lee mcbain, The Living Constitution: A Consideration of the Realities and Legends of Our Fundamental Law (New York: macmillan, 1927). 5. rehnquist, the Notion, 694. 6. Cited by rehnquist, the Notion, 694. 7. Ibid. 8. Ibid. 9. Ibid., 695.

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of the United States.10 according to rehnquist, the brief thus wrongly applies the notion of the living Constitution because it demands a substitution of some other set of values for those which may be derived from the language and intent of the framers.11 In this context, rehnquist stressed that this departure from the original intent of the framers must be sharply distinguished from normal judiciary review. recognizing the Constitution as being framed by the people, which is the ultimate source of authority, judges should be detached and objective when they review the Constitution.12 a mere change in public opinion since the adoption of the Constitution, rehnquist said, should not change its meaning. Nor should a merely temporary majoritarian groundswell abrogate some individual liberty.13 from rehnquists viewpoint, the brief violates these principles in two significant ways. first, it is based on the proposition that judges have a role to play in solving societys problems independently of the popular will.14 Second, the brief writer imposes his personal, moral conscience on the judiciary, thus violating the constitutional principle that only the representatives of the people can enact laws.15 In short, the brief is false because it is fundamentally undemocratic. between the lines of rehnquists complaint we can detect the main argument of originalism. It starts from the claim that the true meaning of the Constitution can lie only in the original intent of the framers who represented the sovereign will of the people. to distance oneself from the original intent is therefore a denial of the popular will and therefore fundamentally undemocratic. from this viewpoint, the most serious fault of the brief writer is not his demand that the judges interpret the Constitution, but his assumption that judges need not limit themselves to the intent of the framers. according to rehnquist, this lack of self-restraint will lead judges to abuse their authority by expanding the meaning of the Constitution in an undemocratic way.16 rehnquists argument reveals the main originalist presuppositions concerning distance and closeness in interpretation. Since the meaning of the Constitution is embodied in its words as expressed by the framers, a judge should stay as close as possible to the original intent of the framers. original intent thus functions as a norm for the trustworthiness of interpretation; true interpretation must follow as closely as possible the intentions of the framers as expressed in the Constitution. This closeness to original intent requires distance from contemporary affairs, and in particular, from politics; in rehnquists terms, judges must be objective and detached. This demand entails two further presuppositions. first, rehnquist presupposes that the framers intent can be known today. Interestingly, though rehnquist admits that it is very difficult to know what the framers exactly intended, he constantly refers to their intentions in order to make his own points. Second, rehnquists position presupposes that past norms and laws are binding
10. Ibid. 11. Ibid. 12. Ibid., 696. 13. Ibid., 697. 14. Ibid., 698. 15. Ibid., 704. 16. Ibid., 698-699.

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for present actions. from this angle, past and present cannot be fundamentally different; the past of the Constitution lives, or ought to live, in the present. This is the presupposition that would be most vehemently attacked by rehnquists staunchest critic, ronald Dworkin. ronald Dworkin is one of the foremost philosophers of law in the United States. In the context of his theory of the law as integrity he has defended a moral reading of the Constitution. In one of his first papers on this issue, he raised two major objections against rehnquist and his fellow originalists.17 first, he argued that a strict interpretation of the text yields a narrow view of constitutional rights because it limits such rights to those recognized by a limited group of people at a fixed date in history.18 With this argument Dworkin pierces the heart of originalism, which presupposes that a past meaning of the Constitution ought to prevail over present interpretations. Second, Dworkin argued that originalism is based on a crude theory of meaning that ignores the basic philosophical distinction between conceptions and concepts. Dworkin illustrated this distinction with an example of himself as a father who warns his children not to treat others unfairly. When I give this warning, Dworkin says, I expect my children not to limit it to a specific situation, but also to apply it to situations I would not have thought about. In other words, I expect my children to be guided by the concept of fairness and not by a specific conception of fairness.19 on the basis of this distinction, Dworkin points out that when people appeal to fairness, they may be doing two different things. When they appeal to the concept of fairness they refer to the meaning of fairness, but when they appeal to the conception of fairness they lay down what they mean by fairness. In the first case, they pose a moral issue; in the second, they respond to it.20 along the same lines, Dworkin argued that the framers of the Constitution expected posterity to follow its concepts, not its conceptions. vague constitutional clauses appeal to concepts like legality, equality, and cruelty and not to specific conceptions. from this it follows, for example, that the Supreme Court may decide that capital punishment is cruel according to the eighth amendment to the Constitution.21 according to Dworkin, the historical fact that capital punishment was standard at the time the clause was adopted is irrelevant to the Courts decision. after all, constitutional interpretation is not a historical, but a moral affair. at first sight, rehnquist and Dworkin seem to stand squarely opposed. Where rehnquist viewed the original intent of the framers as the norm for present interpretations of the Constitution, Dworkin argued that interpretation of the Constitution must be guided by contemporary moral concerns. and where rehnquist equated original intent with popular sovereignty and democracy, Dworkin equated democracy with the constitutionalization of present morality. on closer inspection, however, rehnquist and Dworkin have more in common than we would expect on the basis of their differences. In the first place, like Dwor17. ronald Dworkin, Taking Rights Seriously (london: Duckworth, 1977), 131-149. 18. Ibid., 134. 19. Ibid. 20. Ibid., 135. 21. Ibid., 135.

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kin, rehnquist admits the occurrence of unforeseen particular cases to which the general terms of the Constitution can be applied. In Dworkins terms, rehnquist admits that the Constitution is stated in concepts as well as conceptions, where the latter are not limited to those at the time of framing. In the second place, and this is crucial, Dworkin does not deny that the framers had an original intent that can be understood in the present. He reproaches the originalist only for limiting the interpretation of the Constitution too much, but he never says that this limitation is impossible because there is no such thing as original intent, or because it cannot be known. This position is in line with Dworkins distinction between concepts and conceptions. Since it is not possible to have a concept of something without any notion of its conceptions, and vice versa, this distinction implies that it is possible to reconstruct historically specific conceptions of a concept. Thus, Dworkin argues that historians of law are perfectly able to reconstruct the specific examples of the notion of cruelty at the time of the adoption of the Constitution. The true issue between rehnquist and Dworkin is, therefore, not whether original intent can be known or not, but whether it should be the norm for the interpretation of the Constitution. In this context, rehnquist does not allow any distance between original intent and interpretation, whereas Dworkin allows for some distance when morality requires it. It is this issue that would be taken up in the next round in the debate.
III. bork verSUS poSNer

robert H. bork is a legal scholar, attorney, and judge whose nomination to the Supreme Court by ronald reagan was rejected by the Senate in 1986. In his seminal book The Tempting of America, bork offered an elaborated version of the originalism he had been defending since 1970. bork sets the tone by describing originalism as the only approach that is consonant with the design of the american republic, because it meets the criteria that any theory of constitutional adjudication must meet in order to possess democratic legitimacy.22 from this viewpoint, bork started with a straightforward definition of the meaning of a law: It is the meaning understood at the time of the laws enactment.23 In this context, bork stressed that original meaning is not the same as what he calls subjective meaning. The meaning of the Constitution should not be equated with the subjective intention of George Washington, nor with the intention of the members of the ratifying conventions, but only with what the public of that time would have understood the words to mean.24 according to bork, this meaning can be found in the words used in the Constitution and in secondary materials such as debates at the conventions, public discussions, newspaper articles, dictionaries, and the like in use at the time.25

22. robert H. bork, The Tempting of America: The Political Seduction of the Law (New York: the free press, 1990), 143. 23. Ibid., 144. 24. Ibid. 25. Ibid., 145.

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Interestingly, though borks general position has much in common with rehnquists, it differs in one important respect. Whereas rehnquist identified the meaning of the Constitution with the intention of the framers, bork identified meaning with how the public of the time would have understood the Constitutions words. This position is puzzling, because public understanding necessarily involves interpretation of the Constitution. Why this interpretation of the public prevails over the original intent of the framers, or over later interpretations, is a question bork does not ask. What borks originalism means in practice comes to the fore when he attacks Dworkins constitutional theory as being congruent with the political positions of modern liberalism in its more extreme varieties.26 Dworkin, bork says, always discovers that the moral philosophy appropriate to the Constitution produces the results that a liberal moral relativist prefers.27 according to bork, Dworkins main instrument in this game is the distinction between concepts and conceptions, which is merely a way of changing the level of generality at which a constitutional provision may be restated so that it is taken to mean something it did not mean.28 for example, when Dworkin employs the distinction to make the death penalty unconstitutional, he deliberately overlooks the fact that the fifth amendment assumes the availability of the death penalty when it says nor shall any person be deprived of life, liberty, or property, without due process of law. Given this statement in the Constitution, bork says, why should we think that the ratifiers of 1791 legislated a concept with a content that could change so much that it would come to outlaw things that the ratifiers had no intention of outlawing? and even if we agree that the content changed, we cannot say that it changed democratically because even today the majority of the american people favor capital punishment. Dworkin is therefore mistaken to make constitutional interpretation an issue of moral philosophy: nothing in the constitution empowers a judge to force a better moral philosophy upon a people that votes to the contrary.29 obviously, bork offers a political argument against Dworkin, not a theoretical one. In his view, Dworkin is wrong because his theory is undemocratic. but this does not make the distinction between concepts and conceptions wrong. In fact, bork himself employs it when he explains the concept of cruelty by giving the example of the fifth amendment. moreover, his argument that the meaning of the Constitution as understood by the public can be retrieved from sources varying from the ratification debates to newspapers of the period employs the same distinction: the meaning of concepts of the Constitution can be traced back to the conceptions of the time. on this theoretical issue bork agrees with Dworkin that concepts necessarily entail conceptions. He differs from Dworkin only about the primacy of concepts and conceptions: Dworkin finds the meaning of the Constitution in its concepts, whereas bork finds it in its conceptions. but the theoretical underpinning of borks position is extremely weak, as his critics pointed out. one of borks wittiest critics is Chief Judge and legal theorist
26. Ibid., 214. 27. Ibid., 213. 28. Ibid., 213-214. 29. Ibid., 214.

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richard a. posner. In an entertaining article, bork and beethoven, he compares borks approach to the Constitution to the authentic performance movement to conclude that neither of them is inevitable nor even the natural method of interpretation.30 In this context, posner does not attack borks originalism directly, but he criticizes him for not being originalist enough.31 regarding whether the fourteenth amendment incorporates the bill of rights to make them enforceable in the States, bork is reluctant to decide the issue through the text of the amendment itself. moreover, he declares that the first section, which guarantees the citizens of the states the privileges and immunities of U.S. citizenship, to be a dead letter because its meaning is unascertainable.32 according to posner, bork does not follow the logic of his analysis to its ultimate consequence because he knows that his originalism would be rejected immediately if it were to make the bill of rights inapplicable to the States. bork is a pragmatic, not an originalist, posner concludes.33 In posners view, borks pragmatism is not a weakness but a strength: judges, when interpreting the Constitution, should always take the consequences of their decisions into account. This is posners own pragmatist approach to the interpretation of the Constitution according to which the consequences of interpretation should always prevail over other considerations.34 Interestingly, despite his criticism of bork, posner, like Dworkin, does not attack originalism directly. He even speaks of good and bad originalism, which entails that he views originalism as a possible way to interpret the Constitution.35 as an example of bad originalism, posner mentions the 1857 Dred Scott vs. Sandford decision, which stipulated that people of african descent and held as slaves were not protected by the Constitution. according to posner, this was bad originalism, because it amounted to an unabashed application of the concept of substantive due process.36 moreover, posner argues, it shows that the most activist judges, like taney and black in 1857, can cloak themselves as originalists.37 In bork and beethoven, posner does not explain what he means by good originalism, but in a later article he says that The only good reason for originalism is pragmatic and has to do with wanting to curtail judicial discretion and thus to transfer political power from judges to legislators, including the framers and ratifiers of constitutional provisions and amendments.38 In this pragmatic context, judges may use history as a basis for their decisions. but, posner avers, the use of history does not reveal any legal meaning. Though it may tell what certain words in the U.S. Constitution meant in the 1780s, or what someone said about their meaning at the time, or what the provenance of certain constitutional provisions was, there remains an unbridgeable gap between uninterpreted historical
30. richard a. posner, bork and beethoven, Stanford Law Review 42 (1990), 1365-1382 cited from posner, Overcoming Law (Cambridge, ma: Harvard University press, 1995), 240. 31. Ibid., 251. 32. Ibid., 246. 33. Ibid., 247. 34. Ibid., 252. 35. Ibid., 251. 36. Ibid., 251. 37. Ibid. 38. richard a. posner, past-Dependency, pragmatism, and Critique of History in adjudication and legal Scholarship University of Chicago Law Review 67 (2000), 591.

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data, on the one hand, and claims about the meaning of constitutional provisions in cases decided today, on the other.39 This comment shows that posner agrees with rehnquist and bork that the original, public meanings of words can be retrieved. He disagrees with the originalists only in that he does not recognize these historical meanings as a norm in present constitutional cases. on this point, posner not only differs from the originalists, who claim a fundamental continuity between past and present, but also from Dworkin, who assumes that the concepts of the Constitution prevail over time. for posner, however, the distance between past and present is so big that the past cannot function as a norm for present interpretations. This claim would be attacked by the new originalists.
Iv. NeW orIGINalISm

In the 1990s, a new form of originalism arose. according to keith Whittington, professor of politics at princeton University and the most important representative of this school of thought, the new originalism differs in two respects from the old. first, new originalists no longer focus on the problem of judicial restraint. Second, new originalists are no longer primarily concerned with the reconstruction and interpretation of original intent, but with the interpretation of texts.40 In my view, a third difference can be added to the former two, because unlike most old originalists, Whittington goes into the philosophical problems of constitutional interpretation, thus bringing the discussion to a higher level. With regard to the interpretation of the Constitution, Whittington distinguishes construction from interpretation. Construction is essentially creative action yielding an imaginative vision of the Constitution.41 Though interesting and even necessary outside the courts, construction should not be allowed in judicial review. Judges should not construct, but should instead interpret the Constitution, which means discovering the meaning of the constitutional text.42 In a long section, The text as Symbol of Intent, Whittington substantiates this claim by arguing that writing, and in particular legal writing, is a means of transmitting intent.43 It is therefore a form of communication. according to Whittington, communication assumes both commonality and intentionality by those attempting to communicate. Invoking the authority of Wittgenstein, Whittington remarks that a purely private language does not exist, because meanings are not private. Communication through language makes meaning available to others, not because of some natural relationship between objects and words, but because the meaning of words is defined through their intersubjective use.44 from this, it fol39. Ibid., 594. 40. keith e. Whittington, the New originalism, AALS/APSA Conference on Constitutional Law (1997), 116. 41. keith e. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (lawrence: University press of kansas, 1999), 5. 42. Ibid., 6. 43. Ibid., 59. 44. Ibid.

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lows that meaning is embedded in language itself because it is realized with the utterance.45 What this means in practice is revealed in Whittingtons cases against Dworkin and posner. referring to Dworkins example of fairness, he points out that even if the framers intended to establish broad principles, as Dworkin contends, the interpreter cannot establish a more specific meaning without taking the framers intentions into account. Dworkin is right that in order to have conceptions of fairness we need to have the concept of fairness, but this does not entail that the problem of their meaning is a normative one instead of a historical one. according to Whittington, this conclusion only follows from Dworkins presupposition that the text of the Constitution is intrinsically vague, which is not the case.46 When I tell my son to play fair at basketball, Whittington says, by which I mean to refrain from knocking down his opponents and stealing the ball, my phrase is not vague or operating on two levels of specificity, but it is entirely specific and motivated by a broader theory of fairness. If my son then knocks down his opponent who has previously pushed him, he is not acting on an alternative conception of fairness, but he is in fact violating my instructions. It is therefore a historical, and not a normative, question as to whether I intended my son to use his own judgment in being fair or intended something more specific.47 In my view, this example does not prove Whittingtons case, because it is built on a false analogy. In the example, Whittington is explicitly telling his son what he does not want, that is, he makes his son understand the concept of fairness by explicitly referring to a conception: play fair simply means dont knock down your opponents and steal the ball. but the problem with the Constitution is that it is rarely so specific. It is full of unspecified general terms like Justice, Commerce, progress of Science and useful arts, Insurrections, the executive power, and We the people. moreover, even if it were to have specified its terms, it would still remain vague because every specification entails new concepts that can be understood in various ways. Drawing from Whittingtons own example, the son, after knocking down his opponent, may claim that he did not really knock him down because he has another idea of knocking down than his father. In answer to this, Whittington may revert to the intersubjectivity theory of language and claim that the meaning of words is defined through their intersubjective use. but although the meaning of words may be defined in use, this does not guarantee mutual understanding. When a speaker tries to convey meaning a by utterance b, the hearer can still think that b means C. In daily life we try to solve this interloquendo, though no guarantee for full understanding can ever be given.48 but in history this solution is more difficult because the historical text cannot speak to us. This makes the understanding of meaning a unilateral affair, because interpreters will have to do the interpreting and the checking themselves. of course, it is possible to retrieve something of the common usage at the time of the framing of
45. Ibid. 46. Ibid., 185. 47. Ibid. 48. r. G. Collingwood, The Principles of Art (oxford: Clarendon press, 1938), 251.

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the Constitution, but this will never be sufficient to establish beyond a reasonable doubt what the framers meant. Significantly, Whittington has no doubt. In his view the Constitution is not intrinsically vague, which means that the intentions of the framers can be sufficiently specified to guide judicial interpretation. The separation of time between the time of the framers and our times is not relevant to this account of interpretation. Though Whittington admits that it is not always easy to discover the meaning of the framers, it is in principle always possible to retrieve their intentions. This argument reveals that Whittington believes that there is no real distance between past and present, because both share the same intersubjectivity.
v. break

So far, Whittingtons new originalism has not been challenged in a convincing way. only barber and fleming criticize Whittingtons distinction between interpretation and construction as a rhetorical strategy, but do not go into its philosophical underpinnings.49 This is not surprising when we consider that all major discussants do not take historical distance into account. Despite the many differences between orginalists and non-originalists, and the differences among originalists and non-originalists themselves, all discussants agree that it is in principle possible to retrieve the framers original intent. rehnquist thinks the intentions of the framers can be found in the will of the people, bork finds them in the public meaning of the time, and Whittington finds them in the text. Dworkin agrees with the originalists when he admits that original intention can be reconstructed, and posner explicitly distinguishes between bad and good originalism. Not surprisingly, during the debate the discussants themselves, bien tonns de se trouver ensemble, discovered that they were all originalists.50 Seen from this viewpoint, the issue that divides the originalists from the nonoriginalists is not whether the original intentions of the Constitution can be reconstructed, but rather the question of to what extent they should function as a norm for constitutional interpretation. Given their common starting point that there is no real distance between past and present, this question cannot be answered because the question of to what extent original intent should be followed in interpretation becomes a matter of degree that allows many positions among which no clear line can be drawn. This is most clearly illustrated by the fact that the discussants have to resort to other norms (democracy, morality, consequences) as foundations for their arguments. There is only one way out of this impasse. Instead of assuming that there is no real distance between past and present, interpreters of the Constitution should adopt the notion of distance as the starting point for their interpretations. This is the position that has been defended by Hans-Georg Gadamer.
vI. a vIeW from a DIStaNCe: GaDamer 49. barber and fleming, Constitutional Interpretation, 94-98. 50. James a. fleming, the balkanization of originalism Maryland Law Review 67 (2007), 10.

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by distance Gadamer does not mean a gap in time that must be bridged by the interpreter. This is the old historicist notion of distance that focused on overcoming distance by redoing or re-experiencing past experience. according to Gadamer, this notion was not so much wrong as limited because interpretation involves more than repeating or redoing the past. on this point, historicism was nave because, focusing on the historicity of the past, it failed to see its own historicity.51 recognizing their own historicity, interpreters always approach the text on the basis of their own historically conditioned prejudices, or in Gadamers words, the interpreter is caught in a hermeneutic circle.52 viewing interpretation as a circle between interpreter and text, philosophical hermeneutics no longer takes distance as a temporal gap between past and present that must be bridged, but as a precondition for understanding; historical distance results in an inevitable difference between the interpreter and the author.53 This difference between interpreter and writer is not a hindrance to interpretation, but its necessary condition: distance enables the interpreter to go beyond the original intent of the author.54 Interpretation is never identical with original intent, because it is always partly determined by the historical situation of the interpreter and hence by the totality of the objective course of history. Gadamer calls this objective course of history effective history, by which he means the tradition of interpretations that conditions the horizon of expectations and the question horizon of the interpreter.55 In order to answer their questions, however, interpreters must open themselves to the text by giving up their own prejudices. by letting the text speak, a fusion of horizons becomes possible.56 What are the preconditions of this fusion of horizons? according to Gadamer this is the most fundamental hermeneutic problem.57 Interestingly, he tries to solve this problem by comparing jurists with historians of law. at first sight, there seems to be a clear difference between them. Jurists have a practical problem to solve; they start from a present case and interpret the law for the sake of the present case.58 Historians of law, however, do not start from a present case, but seek to understand the meaning of the law by studying its whole range of application from its origins to the present.59 on the basis of this distinction, the hermeneuticist emilio betti said that it is the task of the historian to reconstruct the original meaning of the legal formula and that of the jurist to harmonize that meaning with the present living actuality.60 In this view, the task of the jurist is more comprehensive than that of the historian because the latter is interested only in the historical change of the law, whereas the jurist goes beyond this by applying the law to the
51. Hans Georg Gadamer, Wahrheit und Methode: Grundzge einer Philosophischen Hermeneutik [1960] (tbingen: mohr, 1990) cited from Gadamer, Truth and Method (london: Sheed and Ward, 1979), 263. 52. Ibid., 296. 53. Ibid., 263. 54. Ibid. 55. Ibid., 267-270. 56. Ibid., 270-274. 57. Ibid., 274. 58. Ibid., 290. 59. Ibid. 60. Ibid., 291.

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present. In the case of the application of a law that is in force, this would mean that the jurist should simply follow its original meaning, from which it follows that the juridical and the historical question are one and the same. but, Gadamer objects, this is a fiction. In order to determine the normative content for the case at hand, that is, in order to define the normative function of the law afresh, the jurist must take the entire development of the applications of the law from its origins to the present into account.61 apparently, the historian is concerned only with the original meaning of the law, but Gadamer asks: how can he know this without being aware of the change in circumstances that separates his own present time from that past time?62 In other words, the present meaning of the law is a precondition for knowing its past meaning. from this it follows, despite all the differences, that the hermeneutical situation of the jurist and the historian is exactly the same; faced with a text, they cannot approach it directly, because they both begin from their own historically specific pre-understanding. one would expect originalists to be very content with philosophical hermeneutics as Gadamer construes it. first, like the originalists, he stresses the importance of the (juridical) text for the interpretation. according to Gadamer, the text has an independent status from the interpreter: it speaks to us and questions our understanding.63 Second, like the originalists, Gadamer holds that judges interpret the law by taking its entire history from its original intent to the present application into account. The hermeneutical situation of the jurist and the historian is therefore the same. finally, by stressing the importance of jurisprudence, Gadamer keeps very close to the practice of jurists, which is also very dear to originalists. However, originalists are not amused by Gadamers account of the interpretation of the law.64 again it is Whittington who takes the lead by raising three objections against Gadamers hermeneutics. first, he attacks Gadamers idea of the hermeneutic circle. according to Whittington, the hermeneutic circle is vicious because while providing the standards within an interpretive convention it cannot provide a proper basis for a debate between conventions. Second, Whittington argues, interpretation requires the interpreter to go beyond existing conventions. Third, Whittington attacks the idea of the fusion of horizons that prevents the interpreter from giving full weight to the text.65 In my view, none of Whittingtons criticisms are to the point, for Gadamer never envisaged making debate between conventions impossible. In fact, he points out the necessary condition of any debate, which is difference, since without difference, or distance, no debate is possible. furthermore, the fusion of horizons does not make this debate impossible, nor does it silence the text. on the contrary: with the idea of the fusion of horizons, Gadamer recognizes that every participant in a debate speaks from his own point of view. The result of a debate, or better, a dia-

61. Ibid. 62. Ibid. 63. Ibid., 293. 64. for a recent overview, see John t. valauri, as time Goes by: Hermeneutics and originalism, Nevada Law Review 10, no. 3 (2010), 719-731. 65. Whittington, Constitutional Interpretation, 103.

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logue, is not that one party convinces the other, but a merging or fusion of points of view. more serious is Whittingtons objection to Gadamers identification of the understanding and the application of the law. Though Whittington admits that the application of texts may be helpful in clarifying their meaning, it is still analytically distinct from understanding. by the process of application, Whittington says, we may deepen our understanding by extending the logic of our thoughts in ways we have not previously considered, but this does not require that the text takes on new meaning with each application.66 each application of a historical legal text like the Constitution, for example, will extend our inventory of knowledge of the text, allowing us to perceive new difficulties or implications that were previously hidden and to expand our inventory of particularized meanings encompassed by the general terms of the textual language. but it will not change the meaning of the text: even though each generation must read the Constitution for itself and its own concerns, such situated readings do not produce new texts; rather they fill in the text that has always existed.67 realizing this, the originalist is like someone who seeks to salvage a soiled painting by clearing away smudges in order to see the original painting beneath it. by equating understanding and application, the Gadamerian interpreter obfuscates the original painting by adding new details with fresh paint, multiplying the portraits on the canvas.68 In my view, this caricature of Gadamers position exactly shows the issue between originalism and philosophical hermeneutics. Where the originalist believes that meaning is somehow intrinsic to a text, Gadamer holds that meaning is always the result of an interplay between a text and an interpreter. from the belief in the intrinsic meaning of a text follows the distinction of application and understanding: we need not apply the text to a specific situation in order to understand it when the meaning is already fully embedded in the text. Contrary to this, Gadamer holds that, precisely because meaning emerges in dialogue, understanding always involves application. by applying the law to a specific case, the judge makes the law concrete. In the eyes of the originalist, however, application delivers the text to the mercy of the interpreter who wants to expand the text. against this charge, Gadamer would reply that interpreters do not expand the text, let alone change it, but that they approach it from a particular point of view. but this approach does not make interpretation an arbitrary affair. Interestingly, Gadamer illustrates this claim by comparing the interpretations of a jurist and a historian of a law which is still in force:
The judge who adapts the transmitted law to the needs of the present is undoubtedly seeking to perform a practical task, but his interpretation of the law is by no means on that account an arbitrary re-interpretation. Here again, to understand and to interpret means to discover and recognize a valid meaning. He seeks to discover the legal idea of a law by linking it with the present. This is, of course, a legal link. It is the legal significance of the lawand not the historical significance of the laws promulgation or of particular cases of
66. Ibid., 104. 67. Ibid., 105. 68. Ibid.

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its applicationthat he is trying to understand. Thus his attitude is not that of an historian, but he has an attitude to his own history, which is the present. Thus he can always approach as an historian those questions that he has implicitly concluded as a judge. on the other hand, the historian, who has no juridical task before him, but seeks to discover the legal meaning of this lawlike anything else that has been handed down in historycannot disregard the fact that he is concerned with a legal creation that needs to be understood in a legal way. He must be able not only to think historically, but also legally. It is true that it is a special case when an historian is examining a legal text that is still valid today. but this special case shows us what determines our relationship to any historical tradition. The historian, trying to understand the law in terms of the situation of its historical origin cannot disregard the continuance of its legal validity: it presents him with the questions that he has to ask of historical tradition.69

It is a pity that Whittington does not discuss this passage, because it applies directly to the problem of constitutional interpretation. more important, it shows exactly why, in contrast to Whittingtons allegations, constitutional interpretation by application is not arbitrary. The crux of the argument is that, though their hermeneutical situation is the same, jurists and historians proceed in different ways. The hermeneutical situation of jurists and historians is the same because their interpretations of the law start from a question that is conditioned by present circumstances. Compared with that of historians, however, the question of jurists is primarily practicalthey interpret the Constitution in order to apply it to a particular case. but this application does not make their answer arbitrary because it is based on the history of applications, that is, on jurisprudence. Jurisprudence functions as the norm for the interpretation of the Constitution because it forces jurists to compare their understanding of the law with the history of the understanding of the law. Compared with jurists, historians are primarily interested in the original meaning of the law. but in order to answer this question, they must think legally, that is, they must have an idea of the law. It is this idea of the law applied to the text they read that makes their interpretation objective. In short, though proceeding in different ways, juridical and historical interpretation presuppose each other. This analysis makes clear that the difference between jurists and historians of law does not lie in the text they study, nor in their presuppositions, but in the questions they ask. The question of jurists is, how should the law be applied in this particular case? to answer this question they seek to discover the legal idea of the law or normative function of the law, for which they have to study its applications in history. The question of historians is, what is the meaning of the law in the situation of its origin? In order to raise this question, historians must have an idea of the legal idea of the law, that is, they necessarily presuppose that the law has a particular normative function. both jurists and historians study the same text, and the same past, but from different perspectives; jurists seek to discover the normative function of the law through its historical applications, historians employ, or presuppose, the normative function of the law in order to understand its historical applications. The difference between jurists and historians of law is therefore not that they study different pasts, or different texts, or that they follow different methods, but that they ask different questions, and asking different questions, they get different meanings from the same text.
69. Gadamer, Truth and Method, 293.

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It is this distinction that Whittington fails to see; for him all legal questions can be reduced to historical questions, from which it follows that the idea of the law or the meaning of the constitution can be found only in its historical significance, which he subsequently equates with original intent. for Gadamer, however, the legal idea of the Constitution cannot be restricted to original intent, but should be extended to its entire range of applications. In short, where Whittington reduces the legal idea, or function, of the Constitution to the intentions of the framers, Gadamer extends the function from the framers to the history of its applications.
vII. tHe aNGle of DIStaNCe

The discussion between originalists and non-originalists has shown how distance works in practice. Whereas originalists recognize only original intent as the norm of constitutional interpretation, non-originalists recur to other norms, like morality or practical consequences. In spite of this difference, both parties agree that the distance between the interpreter and the framers can in principle be overcome. Given this common historicist presupposition, the issue of the right norm for constitutional interpretation becomes unsolvable. However, by rejecting the historicist presupposition, one can show how original intent and interpretation of a constitution can be fused. The key to this does not lie in the text, but in the questions of its interpreters. on the one hand, historians may be interested in the original meaning of the Constitution; their questions will concern the intentions of the framers. on the other hand, jurists are interested in the legal meaning of the Constitution; their questions will concern the legal function of the law. Note that the interpretation of the Constitution is not limited to the historical and the legal approach. a sociologist, for example, may interpret the Constitution as a means to bind political networks, a rhetorician may interpret it as a means to legitimize the exercise of power for an audience, and a psychologist may see it as the product of the framers hidden lust for power. In principle, the number of approaches is infinite. Interpreters approach the Constitution from their own particular perspectives, asking their own questions on the basis of their own explicit and implicit presuppositions. Distance from the past is therefore dependent on the questions interpreters ask in the present, or more precisely, on the direction of their questions. The more interpreters focus on the functional aspects of the Constitution, the more distance they take from the original intent of the framers. Interestingly, the question-dependency of interpretation has been recognized from the beginning of hermeneutics. Die frage und das Suchen ist der erste Schritt der historischen forschung was one of the first lessons Droysen taught his students.70 In subsequent lessons he showed them how the historian can get different meanings from a text by focusing on different aspects of the text, meanings that vary from the intentions of the author in psychologic interpretation to the wider context of the text in the interpretation of moral powers or ideas.71 In
70. The question and the search is the first step of historical research. Johann Gustav Droysen, Historik: Vorlesungen ber Enzyklopdie und Methodologie der Geschichte [1937] (tbingen: mohr, 1967), 36. 71. Ibid., 156-180.

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the same vein, benedetto Croce spent his lifes work on stressing the priority of the problem in historiography, and Johan Huizinga put the same view succinctly as: Where no clear question sounds, no knowledge will sound as an answer.72 In Truth and Method, Gadamer devotes a long section to the hermeneutical priority of the question, in which he argues that we cannot have experience without asking questions.73 In this context, he remarks that a question always places that which is questioned within a particular perspective because the sense of the question is the direction in which alone the answer can be given if it is to be meaningful.74 In the next section, Gadamer explores the conditions of this questioning activity with the help of Collingwoods logic of question and answer. according to this logic, the meaning of a proposition is conditioned by the question it is meant to answer. In the practice of interpretation this means that in order to establish the meaning of a proposition the interpreter must first reconstruct the question it was meant to answer.75 along these lines, a historian may reconstruct the clauses of the Constitution as answers to questions that confronted the framers in 1787. but according to Gadamer, this reconstruction would not yield the meaning of the Constitution, because we cannot simply presuppose that the meaning we discover in a text agrees with what its author intended.76 on the contrary: in general the sense of a text reaches far beyond the intentions of the author. The task of the understanding is therefore primarily concerned with the meaning of the text itself and not with the reconstruction of the ideas of the author.77 In order to retrieve the meaning of the text, interpreters must therefore reverse the relationship between question and answer. They do not question the text, but it is the text that questions them; it is the voice that speaks from the past which poses a question and places our meaning in openness.78 However, as inspiring as this dialogical view of interpretation may be, it is not convincing for at least two reasons. first, the view that the text questions the interpreter is not coherent with Gadamers doctrine of the hermeneutical priority of the question, which states exactly the opposite. more important, the view of a questioning text is not consistent with the juridical application that is Gadamers model for hermeneutics. The jurist who applies the Constitution to a particular case starts from a practical problem and not from a theoretical question allegedly asked by the Constitution. Second, as many scholars have already pointed out, Collingwood never simply identified the meaning of a text with the intention of its author.79 In particular,
72. Croce discussed the problem of the historical problem in his Logica come scienza del concetto puro in 1909, and elaborated it in Teoria e storia della storiografia in 1917 and in La storia come pensiero e come azione in 1938; Johan Huizinga, De Taak der Cultuurgeschiedenis (Groningen: Historische Uitgeverij, 1995), 81. In Dutch: Waar geen heldere vraag klinkt, klinkt geen kennis tot antwoord. 73. Gadamer, Truth and Method, 325. 74. Ibid., 326. 75. r. G. Collingwood, An Autobiography (oxford: Clarendon press, 1939), 38-39. 76. Gadamer, Truth and Method, 335. 77. Ibid., 335-336. 78. Ibid., 337. 79. peter Skagestad, Making Sense of History: The Philosophies of Popper and Collingwood (oslo: Universitetsforlaget, 1975); Jan van der Dussen, the philosophical Context of Collingwoods

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reenactment of past thought does not involve the rethinking of subjective thought processes, but the reconstruction of the logical content of thought. In this context, peter Skagestad pointed out that Collingwoods reenactment doctrine is akin to poppers situational analysis. In particular, popper stresses that the reconstruction of the problem situation must be sharply distinguished from the reenactment of subjective thought processes of the agent in the past. 80 The historian must not reenact these processes but should try to reconstruct the decisive elements of a problem situation.81 Interestingly, popper views this reconstruction as a metaproblem with regard to problem situations of the past, which is another way of saying that the interpreter must observe a certain distance from the past. Crucial to situational analysis is, of course, the notion of situation. according to Collingwood, there is no distinction between the situation and the thought of a situation: for the agent about to act, the situation is his master, his oracle, his god.82 from this it follows that the historian must reconstruct the situation in the past as the agent saw it. In the same vein, popper says that the historian must reconstruct the problem situation as it appeared to the agent, that the action of the agent become adequate to the situation.83 This sense of situation is sufficient to explain actions of an agent, but in practice historians do not limit themselves to the explanation of actions. The most obvious example is social and economic history, which explains historical events in terms of patterns or functions. but with regard to texts, the most relevant example is again found in constitutional interpretation. as we have seen, jurists who are interested in the function of the Constitution will not take the original intentions of the framers into account. accordingly, they will not construe the Constitution as an answer to the framers questions. but this does not rule out the possibility of construing the Constitution as a solution to a particular functional problem that went or continues to go beyond the intentions of the framers. This is the argument american jurists have employed in order to establish the so-called implied powers of the Constitution. The classic case in this context is alexander Hamiltons appeal for the establishment of a bank of the United States in 1791. Since the Constitution did not mention anything on this point, the issue of whether the federation was allowed to establish a central bank was hotly debated. Hamilton famously won the case by arguing that it is incident to a general sovereign of legislative power to regulate a thing, to employ all the means which relate to its regulation to the best and greatest advantage.84 Since the relevant powers are in fact laid down in the Constitution, it follows by implication that the federation is allowed to establish a bank if this serves its ends. Crucially, in this context Hamilton did not refer to the intentions of the framers on this point
re-enactment theory, International Studies in Philosophy 27 (1995), 81-99. 80. karl r. popper, Objective Knowledge: An Evolutionary Approach (oxford: Clarendon press, 1981), 188. 81. Ibid. 82. r. G. Collingwood, The Idea of History (oxford: Clarendon press, 1993), 317. 83. popper, Objective Knowledge, 189. 84. matthew St. Clair Clarke and David a. Hall, Legislative and Documentary History of the Bank of the United States (Washington, DC: Gales and Seaton, 1832), 97.

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but to the function of the Constitution in the state; the function of the Constitution is to vest the powers in the sovereign state. It is from this function that Hamilton derives the implied power to establish the bank. along the same lines, many other implied powers have been discovered in the Constitution, and time and again jurists have gone beyond the explicit intentions of the framers. This illustrates my general point that situational analysis of the Constitution in poppers sense cannot limit itself to a reconstruction of the situation as the framers envisaged it. In judicial review, which generally deals with situations the framers could never have foreseen, this is even the order of the day. Starting from a particular case, judges place the Constitution in a perspective from which they question it in order to discover the legal idea that is relevant to the case they are considering. In this context, the direction of the question is crucial since this determines how the Constitution is to be applied to the particular case. Interpretation follows the law of acoustics: angle of incidence equates angle of reflection. by this phrase, I do not mean that the interpreter can get out of a text whatever he or she wants to get. Nor do I mean that one can raise any question about the text that pops up in ones mind. Questioning is not an arbitrary affair. It has a logic of its own; questions arise in specific situations and are conditioned by previously given answers, as Collingwood and Gadamer have shown. What I mean by angle of incidence equates angle of reflection is that the interpreter chooses the perspective from which to approach the text. from this perspective interpreters give direction to their questions about the condition under which they reconstruct the problem situation of the text. Since a priori no question is superior to another, no meaning is superior to another. The secret of interpretation is therefore not to ask the same kind of question of the text, but to combine different questions from different perspectives, varying from the intentional to the functional. This combination of perspectives will enable interpreters to find the right distance from the past in order to offer rich interpretations of a text. University of Groningen

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