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Res Publica (2007) 13:415440 DOI 10.

1007/s11158-007-9042-y

Springer 2007

MARIELA VARGOVA

DIALOGUE, PLURALISM, AND CHANGE: THE INTERTEXTUAL CONSTITUTION OF BAKHTIN, KRISTEVA, AND DERRIDA

ABSTRACT. In this article I show how the concept of intertextuality as developed by Mikhail Bakhtin, Julia Kristeva and Jacques Derrida can be applied to the political theory of constitutionalism. Such an approach carries with it the valuable democratic idea that all texts in society, including the political constitution, are in a dynamic relationship and reect social pluralism. By analyzing and comparing intertextual theories, I develop the idea of the constitution as an open and emancipatory interpretative and textual category. I show how intertextual theorizing contributes signicantly to the democratization of a modern liberal constitutional order, oering distinct strategies for progressive political and social transformation. KEY WORDS: constitutionalism, constitutional interpretation, democratization, intertextuality, social pluralism, emancipatory transformation

INTRODUCTION

As developed by the Russian literary theorist Mikhail Bakhtin and the French philosophers Julia Kristeva and Jacques Derrida, the concept of intertextuality offers an innovative way to look at the textual and interpretative features of modern constitutions. Two important features of this concept make it particularly useful for constitutional analysis. First, intertextuality contends that texts lack xed authorships and meanings. Instead, they embody the notions of pluralism, openness and change. Second, and in contrast to the conventional understanding of the political constitution as a normatively superior and historically privileged text, the concept of intertextuality carries the radical democratic idea that all social and public texts in society are bound in a dynamic relationship to ongoing social and political transformations.

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With this transformative potential in mind, in this article I analyze how, by using the intertextual approaches of Bakhtin, Kristeva and Derrida, we can see constitutional text and its interpretations as forming a particular constitutional dynamic that I call constitutional inter-texts. Building on intertextuality, I develop the idea of the constitution as a heterogeneous politico-legal text and textual construction. In its internal textual space, the constitution embodies a plurality of meanings of good and justice, expressing social pluralism in society. Externally, constitutional text has an active relationship through dialogue with other public interpretations and is open to struggles for social transformation in society. Bakhtin, Kristeva and Derrida each employ distinct intertextual strategies. While Bakhtin and Kristeva offer a typology of texts that distinguishes between authoritative and dialogic textuality, Derrida views the political constitution as a deconstructible interpretative category in a state of ongoing refounding and reinterpretation. Each author also presents different modalities of intertextual constitutional transformation. On the one hand, I interpret Bakhtin and Kristeva as offering a modality of social transformation in the form of open-ended intertextual processualism. Their model embodies an ongoing revolutionary change that constantly challenges the social status quo and authority in society. Constitutional text simultaneously voices the ofcial viewpoints of justice and their critical questioning and destabilization. Using Kristevas ideas, we can see how constitutional text is subject to change and critical interrogation from the perspective of pluralism. On the other hand, while Derrida considers any moment of refounding as a new interpretation and any instance of constitutional interpretation as a new beginning, he nevertheless stresses the role of repetition, conservation and redemption in constitutional judgment. I see an important ethical dimension in Derridas approach. By opening the process of constitutional interpretation to difference and the future, Derrida also stresses the responsibility to the past, to the memory of the founding moment of political community. Every act of constitutional interpretation is a future dialogue with the original founding moment. With responsibility to both the constitutional past and future, the Derridean process of intertextual constitutional interpretation tries to redeem the injustices of the past with the perspective of the future, with the voice of alterity, and with the hope, in Derridas words, for justice-to-come.

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Yet, with their unconditional openness to the other and to the future, intertextual interpretative strategies risk constant destabilization and indeterminacy of meanings. On the one hand, when applied to constitutional space, the intertextual strategy calls for constant interrogation of the normative status quo, deconstructing stable and xed meanings of good. The constant questioning of dominant and authoritative interpretations may lead to undesirable cases of overruling progressive normative achievements and to the imposition of regressive interpretations of good. Therefore, at the end of this article, I will suggest possible interpretative strategies to reduce the risk of indeterminacy, providing for emancipatory political transformability. Because the use of the concept of intertextuality stands in such contrast to that of a more conventional understanding of the political constitution, I think it useful at this point to offer a brief overview of conventional constitutional textuality before turning to a more detailed analysis of the concept itself.

CONVENTIONAL CONSTITUTIONAL TEXTUALITY

Most modern constitutional theories presuppose the establishment of a sharp normative distinction between a superior constitutional text and other interpretative textual practices in society political, public, and legal.1 These conventional strategies of constitutional interpretation reect most notably the American constitutional experience and the continental constitutional tradition. Yet even in countries without written constitutions and where there is no formally codied

Ever since the constitutional revolutions of the eighteenth century, modern constitutional theory has conceived of a constitution as a fundamental set of principles and institutional arrangements aiming to restrict arbitrary power and ensure limited government (See Giovanni Sartori, Constitutionalism: A Preliminary Discussion, The American Political Science Review 56/4 (1962) 853864, p. 855). Preoccupied with the need to guarantee political and normative stability, the traditional constitutional approach has sought to establish an enduring institutional order that is beyond the reach of everyday democratic activities and pluralist social life. It has viewed the constitution as a constricted and formal institution, which is detached from citizens ordinary democratic practices. (See Graham Maddox, A Note on the Meaning of Constitution, The American Political Science Review 76/4 (1982) 805809).

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constitutional text, as in Great Britain, political life is still predicated on the presumption of having a constitution.2 To be sure, this conventional approach sharply enhances the superior meaning of the constitution over other public texts and interpretative practices in society.3 Once established, this distinction carries over into the understanding of constitutional textuality as a superior normative document over other public interpretations of justice. It also creates a distinction between the text of the constitution on the one hand, and its subsequent future interpretations by courts and political actors, on the other. Modern constitutionalism can thus be seen as enforcing strict textual and interpretative divisions and drawing a sharp normative line between interpretations by constitutional actors and everyday public textuality. Another aspect of the conventional constitutional approach is the perception of the constitution as a written and static normative document. The idea of having xed and stable constitutional meanings is the foremost feature of the conventional understanding of constitutional textuality. The set of xed normative principles presents a constitutional promise to the future, providing for the stability and continuity of the political community. Yet this approach also gives grounds for recourse to the original meaning of the constitution, i.e., to the constitutional meanings as they were apparently meant by the constitutional creators.4
2

In England, there is no written constitution and no formal separation between constitutional and normal legislation. Yet, as constitutional scholar A. V. Dicey asserts, it is a mistake to think that the whole law of the English constitution might not be reduced to writing and be enacted in the form of constitutional code. See A.V. Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan and Co. Ltd, 1939), pp. 9091. 3 Even progressive constitutional theories such as those of Bruce Ackerman, John Rawls, and Jurgen Habermas, among others, differentiate between higher constitutional textuality and ordinary political interpretative practices. See John Rawls, Political Liberalism (New York: Columbia University Press, 1993); Bruce Ackerman, We the People. Volume 1: Foundations (Cambridge, MA: The Belknap Press of Harvard University Press, 1991); and Jurgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: The MIT Press, 1999). 4 Keith E. Whittington, How to Read the Constitution: self-Government and the Jurisprudence of Originalism, First Principles Series, The Heritage Foundation, No.5, (2006) 113, pp.15. See also Amy Kapczynski, Historicism, Progress, and the Redemptive Constitution, Cardozo Law Review 26/3 (2005) 10411118, p. 1061, and Natalie Stoljar, Survey Article: Interpretation, Indeterminacy and Authority: Some Recent Controversies in the Philosophy of Law, Journal of Political Philosophy 11/4 (2003) 470498, p. 472.

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The conventional constitutional theorizing is most explicitly embodied in the view that the constitutions text derives both its legitimacy and its authority primarily from the past, i.e., from the constitution-making activities of the founding fathers. In this way, what matters most is the ideological position and views of justice as expressed by the founding generation. All subsequent interpretations concerning questions of justice are assigned a lesser textual status. Moreover, because of this backward-looking stance, the constitutions text demands normative compatibility and allegiance from all future generations of constitutional interpreters. The conventional approach can be hostile to ideas of regular constitutional change and normative transformation. It may inhibit the ongoing progressive transformative potential of a modern liberal society. Such constitutional theorizing privileges constitutional text at the expense of other everyday public interpretative practices embedded in citizens everyday democratic life. Conventional constitutional theorizing grants greater democratic legitimacy and superior textual status to constitutional interpretations by parliaments and courts. It envisions constitutional interpretation as an exclusive prerogative of judges, ignoring other unconventional locations and sources of interpretation of constitutional meanings outside the judiciary. These can be found, for example, in citizens everyday public deliberations in a vibrant civil society. Because of this, conventional constitutional textuality lacks a contextual openness to everyday social processes and new social situations. It restricts the range of constitutional authors and interpreters and disregards the normative authority of other political and public interpretations. To my mind, then, conventional constitutional theorizing has serious decits. In what follows, I look for ways to democratize the idea of constitutional text, opening it to progressive constitutional innovation. I pursue a strategy of constitutional interpretation that is open and inclusive both in regard to meanings and its constitutional interpreters.5 I see in Mikhail Bakhtins critical literary theory, Julia Kristevas poststructural approach to texts and Derridas
5 Similarly, Natalie Stoljar presents poststructuralist and deconstructive approaches to legal interpretation under the name of critical theories and stresses that these approaches share the idea that [t]here are no authoritative interpretations because interpretations (as well as laws and legal institutions) are mere perspectives, typically perspectives that perpetuate dominant ideologies and power structures. Ibid., p. 493.

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deconstruction in legal interpretation, effective tools and strategies to overcome the conventional understanding of constitutional textuality and authority, and replace it with one that, in my view, is more open and dynamic the intertextual or dialogic understanding of the constitutions text and interpretations.

TEXTUAL OPPOSITIONS: BAKHTIN

AND

KRISTEVA

I turn now to Bakhtin and Kristevas paradigmatic typology of textuality. Their approach is characterized by a differentiation between two types of textual interpretation: authoritative and monologic on the one hand, and dialogic and intertextual, on the other. I maintain that this distinction can be effectively applied to constitutional texts and strategies of constitutional interpretation. Building on Bakhtin and Kristevas critique of authoritative texts as monologic constructions, I use their ideas of dialogism and intertextuality to understand the constitutional text in an alternative way: as a pluralist and open textuality. Against Authority in Texts I begin with Bakhtins distinction between authoritative and dialogic texts. Known primarily as a theoretician of literary texts, Bakhtin approaches the idea of texts in the broadest sense of the term. By extending his analysis beyond the connes of literature, he arrives at a unitary view of the entire area of human sciences based on the identity of their material texts, and of their method: interpretation.6 The all-encompassing nature of his analysis can be seen in his broad references to texts and their interpretation as slovo, that is, word, discourse, or utterance. In his essay Discourse in the Novel, Bakhtin makes a major contribution to modern textual analysis with his concept of dialogism, which is the idea that a plurality of meanings exist in texts.7 He develops this idea by critically challenging the notion of authority in texts. For him, authoritative text embodies an authority as such, or
6

Tzvetan Todorov, Mikhail Bakhtin: The Dialogical Principle (Minneapolis: University of Minnesota Press, 1984), p. ix. 7 Mikhail Bakhtin, Discourse in the Novel, in his The Dialogic Imagination (Austin: University of Texas Press, 1981), pp. 259422.

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the authoritativeness of tradition, of generally acknowledged truths, of the ofcial line and other similar authorities.8 Bakhtin perceives authoritative text as an isolated and dominant textual stratum, always situated in the distanced zone of the past. This type of text is normatively superior to the present and the future. In this way, authoritative textuality is always a prior discourse, it embodies the word of the fathers, and its authority was already acknowledged in the past.9 Because it belongs to the past, authoritative text assumes the privilege of demanding unconditional allegiance from other texts. Not only must authoritative text not merge with other discourses and future interpretations, but it must impose itself on them. In this way, authoritative text contains and asserts the dominant interpretation of its founding fathers over time. It is always sharply demarcated, compact and inert.10 Yet Bakhtin stresses that, if it is subsequently deprived of its authority, [the authoritative text] becomes simply an object, a relic, a thing and its semantic structure is static and dead.11 Thus, as one commentator notes, authoritative text can be seen to valorize one ofcial point-of-view, one ideological position, and thus one discourse, above all others.12 Similar to Bakhtin, Kristeva associates monological texts with hierarchical structures, including unity of meaning, authoritativeness, the word of God, law and order. Following Bakhtins account of authoritative discourse, Kristeva develops her own concept of authoritative text in the essay Word, Dialogue, and Novel, calling it monological discourse.13 In this kind of text, Kristeva writes, the dialogue ... is smothered by a prohibition, a censorship, such that this discourse refuses to turn back upon itself, to enter into dialogue with itself.14 Monological discourse is an embodiment of an absolute point of view, which coincides with the wholeness of a

Ibid., p. 344. Ibid., p. 342. 10 Ibid., p. 343. 11 Ibid., p. 344. 12 Graham Allen, Intertextuality (London: Routledge, 2000), p. 24. 13 Julia Kristeva, Word, Dialogue, and Novel, in Leon S. Roudiez (ed), Desire in Language: A Semiotic Approach to Literature and Art (New York: Columbia University Press, 1980), pp. 6491, p. 77. 14 Ibid., p. 77.
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god or community.15 Thus, Kristeva connects monological texts with a logic that presupposes a hierarchy within the structure of substance, one that is causal, theological, dogmatic; it is a belief in the literal sense of the word.16 We can see here how Bakhtin and Kristevas account of authoritative/monological textuality reminds us of the conventional approach to constitutional interpretation that I presented above. Their understanding of authoritative or monologic textuality can be directly associated with a view of the constitutional text that is always bound to the past, and that is always looking backward towards its origin and to the decisions of the founding fathers. Thought as an authoritative/monologic text, the constitution gains the status of a historically distant or normatively sacred document that is detached from other interpretative practices in society. The constitutional text embodies the authoritativeness of tradition and the original intent of its framers, as well as their ideological positions and acknowledged truths. It binds all future interpretations and restricts any attempts at normative renovations and rediscovery. It is seen as a special script that is distant and magisterial in both temporal and normative signicance. The Concept of Intertextuality Along with their critique of authority in texts, Bakhtin and Kristeva each develop a theory of texts as dialogues or inter-texts. Both authors elaborate the concept of textual dialogism from two perspectives. They analyze texts from within the interior of their textual space, that is, from the perspective of the meanings they embody and the processes of their textual production. In addition, Bakhtin and Kristeva view texts in relation to their exterior space, that is, as part of the broader social, cultural, and historical textuality that makes up social pluralism. I thus see their contribution to constitutional interpretation in two ways. First, the intertextual approach pluralizes the idea of constitutional normativity, making it an open and heterogeneous textual stratum. Second, it connects constitutional textuality to the broader social practices and transformative struggles in society. Bakhtin approaches texts as dialogical constructions. Unlike authoritative texts, dialogic texts are heterogeneous, for they are
15 16

Ibid., p. 77. Ibid., p. 78.

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half-ours and half-someone elses.17 Bakhtin calls them doublevoiced,18 and maintains that dialogic texts and interpretations present an intense interaction, a struggle... among various available verbal and ideological points of view, approaches, directions and values.19 Bakhtin employs the term heteroglossia to explain the heterogeneous character of texts, meaning that texts present a multiplicity of social voices, thus embodying a wide variety of interrelationships.20 Each voice of heteroglossia represents both a specic point of view on the world and a particular way of conceptualizing the world. Notably, Bakhtin connects textual dialogism with social struggles and pluralism, underlying the emancipatory potential of pluralist texts and interpretations. For him, multiple languages in texts live a real life, they struggle and evolve in an environment of social heteroglossia.21 By connecting the idea of textual heteroglossia with that of social pluralism, Bakhtin makes it clear that texts are the embodiment of an existing socio-ideological dialogue between the present and the past, between different groups in society.22 In this way, Bakhtins theory regards dialogic texts as being always contemporary. Dialogic texts are semantically innite: they are open to new discourses and to new social circumstances and contexts. In this way, dialogic texts are always in a state of creativity and productiveness. And as such, they pose a threat to any unitary, authoritarian, and hierarchical conception of society, art, and life.23 Building on Bakhtins idea of dialogism, Kristeva posits that all texts should be seen as intertextual. For her, intertextuality means that any text is constructed as a mosaic of quotations; any text is the absorption and transformation of another.24 In her essay The Bounded Text, Kristeva writes of intertextuality as a permutation of texts, as the idea that in the space of a given text, several

17 18 19 20 21 22 23 24

Bakhtin, op. cit., p. 345. Ibid., pp. 324327. Ibid., p. 346. Ibid., p. 263. Ibid., p. 292. Ibid., p. 291. Allen, op. cit., p. 27. Kristeva, op. cit., p. 66.

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utterances, taken from other texts, intersect and neutralize one another.25 Like Bakhtin, Kristeva argues that intertextual texts stand in opposition to any unity of meaning and to the authoritativeness of any ofcial denition. For her, intertextuality opposes the prohibitive and hierarchical logic of monologism. It transgresses any rules of linguistic code and social morality.26 Intertextuality presents a plurality of meanings and embodies the constant change of meanings emerging in society. The intertextual strategy is thus characterized by opposition to any ofcial monologism claiming to possess a ready-made truth.27 Because of its disruptive and questioning character, moreover, intertextuality is able to exteriorize and unveil the hidden political and ideological conicts present at any historical moment in society. It gives expression to all those alternative and different voices that embody a struggle against the ofcial normativity and political establishment.28 It is important to note that in the same way that we saw with Bakhtins heteroglossia, Kristeva connects intertextuality to the broader cultural and social processes underway in a society. She places texts rmly within the general cultural, social and public context. In this way, intertextuality can be seen as embodied externally in the relation each text has to other public texts in a society. Kristeva refers to this relationship of texts as ideologeme, as having historical and social coordinates, always situated within (the text of) society and history.29 For Kristeva, texts are part of the broader social and political textuality; they embody societys many

Julia Kristeva, The Bounded Text, in Leon S. Roudiez (ed), Desire in Language: A Semiotic Approach to Literature and Art (New York: Columbia University Press, 1980), pp. 3663, p. 36. In the following analysis, I restrict my interpretation and employment of Kristevas concept of intertextuality to her interpretation of Bakhtins translinguistics and to her, as I call it, pre-psychoanalytic turn of textual interpretation presented in some of her early scholarly work. 26 Kristeva, word, Dialogue and Novel, p. 70. 27 Ibid., p. 81. 28 Ibid., pp. 8384. As Graham Allen observes, for Kristeva, the dialogic texts are arenas for struggles that aim to subvert the belief in the unity of meaning or of the human subject all ideas of the logical and the unquestionable. See Allen, op. cit., p. 45. 29 Kristeva, The Bounded Text, pp. 3637.

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ongoing transformations and productions of meanings.30 As such, texts present the multiplicity of voices emergent in a pluralist society and reect ongoing social and historical transformations. We can see how dialogism and intertextuality both reject categorical unity and hierarchies of meaning, and instead foster a pluralism of voices on questions of difference and otherness. The notion of intertextuality presupposes that all texts are in a constant state of productivity, and always in a state of change and transformation. Even the author of a text, the speaking or writing subject, is no core, xed, unied self, but is a differentiated, complex, heterogeneous force. Kristeva contends that the author of a text is a subject-in-process, conveying the notion of subjectivity as always on trial, constantly questioning her identity and undergoing change.31 For Kristeva, then, even the author of a text is in a state of innovation, of creation, of opening, of renewal: he/she is an open system.32 The Constitution as Inter-Texts Bakhtin and Kristevas theorizing of intertextuality provides a new theoretical strategy for analyzing constitutional text by envisioning this text as a heterogeneous construction subject to dynamic change and normative transformation. Following Bakhtin and Kristevas textual distinctions, I envision the constitutional text as an example of inter-text. By inter-text, I understand the constitution to be a politico-legal textuality that is heterogeneous both in its interior textual stratum and in its external relationship to the fact of social pluralism. First, as indicated above, the intertextual approach calls into question the view of the constitutional text as consisting of xed meanings and of presenting one absolute denition of the common good. Instead, as inter-text, the constitution appears as a web of plural interpretations of good and of self. It embodies a novel constitutional linguistics of pluralism, expressed in its textual
30 Julia Kristeva, Semiotics: A Critical Science and/or a Critique of Science, in Toril Moi (ed), The Kristeva Reader (New York: Columbia University Press, 1986), pp. 7488, p. 87. 31 Noelle McAfee, Habermas, Kristeva, and Citizenship (Ithaca: Cornell University Press, 2000), p. 69. 32 Ross Mitchell Guberman (ed), Julia Kristeva Interviews (New York: Columbia University Press, 1996), p. 26.

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openness to alternative voices and meanings of good and justice. Through its text, the constitution promotes the perspective of the other in constitutional discourse, accounting for all those voices that have traditionally been marginalized in society. Let me give an example of constitutional inter-text with linguistic diversity. In my view, a constitutional text is intertextual when it expresses the voices of social pluralism and heterogeneity, responding to the emergent cultural, ethnic, linguistic and gender diversities within a political community. Contemporary constitutional texts accommodate linguistic diversity in various ways. Some constitutional texts co-equally recognize and protect language diversity in its constitutional norms, giving an ocial status to more than one language. Such constitutions are anti-monological, since they give equal representation to alternative and competing visions of good in liberal society. An example of such constitutional intertextuality is the Canadian Constitutional Act of 1982 which recognizes the ocial status of two languages English and French. The Act aords the English and French linguistic communities equal status and equal rights and privileges, as well as the right to distinct educational and cultural institutions. It also promotes the preservation of distinct cultural communities, protecting the rights of aboriginal peoples, including the Indian, Inuit, and the Metis.33 We see how by encouraging and promoting new pluralist meanings, the intertextual constitution is elevated to a new normative status of being a double law: the ofcial voice on the one hand, and the constant critical voices of those who are different or have been marginalized, on the other. The text of the constitution never settles on a certain dominant normative status quo. It is always alert to changes in society, always ready to reect new voices and meanings. Via its openness and heterogeneous character, the constitution has the potential to promote normative change and societal transformation. The idea of constitutional inter-texts also asserts that the constitution has an active exterior interpretative dimension. Its textuality is broader than that of the traditional constitution as it draws from
See the Constitution Act, 1982, http://laws.justice.gc.ca/en/const/annex_e.html. (Accessed 20 June 2007). In addition, I want to point out that there are other constitutional texts that recognize linguistic diversity only as a matter of territorial priority and protection. A third group of constitutions promote linguistic pluralism at the level of institutional structures of the state.
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multiple sources of interpretation outside the formal means of textual interpretation engaged in by courts and legislatures. Because of its exposure to innovation and critical interrogation, the constitutional text is always open to dialogue with other interpretations such as those developed in civil society, in media, literature, and scholarship. The intertextual approach thus presupposes a new type of active democratic politics of constitutional interpretation that draws on a vibrant and engaged relationship between citizens daily democratic life and their constitution.34 Because it is grounded in everyday democratic life, the intertextual constitutional process can more effectively promote citizens transformative voices and struggles for equality and freedom. Mirroring societys ongoing struggles over interpretations of justice, constitutional text is constantly developing and innovating in response to new social and historical contexts. Following Kristeva, we can see how constitutional text is in-process, always revisable and never complete; it is open-ended and future-oriented. The intertextual constitutional process reminds us of what the constitutional scholar Vivien Hart calls a continuing conversation, an open-ended process of normative transformation that is also open to the participation of everyone.35 The openness of the constitutional process challenges the perception of the constitution as the traditional single text and indeed the written text, understanding constitutional textuality as an evolving and pluralist concept, consisting of many texts and interpretations.36 Yet the constitutional text is also an ongoing historical exchange between past and future constitutional writings and interpretations of societys norms. I thus look for a strategy of constitutional interpretation that offers an adequate interplay between constitutional past and future, and for a modality of constitutional interpretation
Richard Bellamy and Dario Castiglione also question the rigid boundaries between constitutional politics and normal political processes. Their notion of political constitutionalism aims to offer a more differentiated appreciation of the nature of democratic decision making, which places the political constitution with its system of basic rights and liberties within ordinary political processes. See Richard Bellamy and Dario Castiglione, Constitutionalism and Democracy Political Theory and the American Constitution, British Journal of Political Science 27/4 (1997) 595618. 35 Vivien Hart, Constitution-Making and the Transformation of Conict, Peace & Change, 26/2 (2001) 153176, p. 158, p. 153. 36 Ibid., p. 157.
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that adds to the intertextual strategy of post-structuralism. I nd that Derridas deconstruction in legal interpretation provides an adequate model. In what follows, I analyze Derridas deconstruction and nd it to be an effective intertextual strategy of constitutional interpretation that provides for an open-ended and just process of constitutional decision-making, offering an intriguing interplay between constitutional past and future.

DERRIDAS DECONSTRUCTION

OF

CONSTITUTIONAL TEXTUALITY

Although similar in some aspects to Bakhtins dialogic and Kristevas intertextual approaches to textuality, Jacques Derrida develops a distinct idea of an intertextual constitution; both as a text and as a form of interpretation. He does so by applying his deconstructive approach as a textual strategy to legal and constitutional interpretation. I interpret Derridas intertextual constitution as a textual or interpretative dialogue in two respects. First, his constitution represents a dialogue between the moment of founding and future reinterpretations; it is thus an intricate interpretative interchange between the past and the future. Second, Derrida oers an idea of legal and constitutional judgment as an open process, one characterized by both undecidability and ongoing deliberation. In this way, Derridas idea of constitutional interpretation is an open and dynamic process, always directed toward the Other, to the future, and to justice to-come. Dethroning the Founding In his essay, Force of Law: The Mystical Foundation of Authority, Derrida develops an intertextual understanding of constitutional text.37 Central to his inquiry is the normative authority of the
Jacques Derrida, Force of Law: The Mystical Foundation of Authority in Drucilla Cornell, Michel Rosenfeld, David Gray Carlson (eds), Deconstruction and the Possibility of Justice (New York: Routledge, 1992), pp. 367. Derridas approach of deconstructive interrogation or deconstructive line of questioning means, in his words, destabilizing, complicating, or bringing out paradoxes of values. For Derrida, deconstruction is through and through a problematization of law and justice, it is a problematization of the foundations of law, morality and politics. (p. 8).
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foundations of law (droit), and more broadly, of the constitutional founding of a modern polity: the institutive act of a constitution that establishes what one calls in French letat de droit.38 Derrida refers to the moment of founding and its constituting text as a dominant interpretation. The founding of the state comes with a force of law, or, as Derrida puts it metaphorically, with the violence of dominant interpretation. The moment of constitution-making is a coup de force; an act of performative and interpretative violence.39 The dominant interpretation at the moment of founding is the constitutions text, the original constitutional interpretation. Derrida presents the creating of the constitutional text as a new beginning with no law or text to guarantee, contradict, or invalidate. He sees the moment of founding as a revolutionary act, a production of something new that has a promise toward the future. The writing of the original or dominant constitutional text is an extraordinary, groundbreaking moment that institutes and positions a new law: the politys constitution. The dominant interpretation is clearly distinguished from other interpretative practices. Because it forms the legal basis of the political community, the dominant interpretation of the constitutional beginning is its promise of the future.40 Yet, for Derrida, the originary writing and reading of the constitutional text this act of dominant interpretation is a performative and interpretative act of violence because it is not based on any previous law or textual interpretation. The founding is ungrounded violence. Without legal grounds, the founding of a state presupposes that its constitutional text, its dominant interpretation, is neither legal nor illegal. It is a non-legal constitutional interpretation whose justication and legitimacy are open to normative challenge and interrogation. Moreover, because of its violent character, the founding of the dominant constitutional interpretation cannot be just. It is always associated with imposition of dominant will and power. The founding of the state also symbolizes an act of violence because it imposes someones arbitrary norms and interpretations over someone elses. For instance, in the European constitutional tradition, the violence of constitutional founding and its dominant interpretation have been most notoriously embodied in the imposition of ones language
38 39 40

Ibid., p. 24. Ibid., p. 13. Ibid., p. 38.

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over someone elses, a national or ethnic minority, suppressing difference and the voice of the other.41 Since the founding is always associated with an act of violence, Derrida questions the legitimacy and authority over the future of a dominant constitutional power. As textual and interpretative strata, the constitution, this letat de droit, is subject to future reinterpretation, and to the destabilization of the originary meaning of its status as a dominant interpretation. In other words, the text of the constitution is subject to deconstruction. Similar to his earlier writings on the deconstruction of texts, in this later work Derrida suggests a double reading of the moment of founding and its dominant interpretation: the constitutional text.42 In Derridas words, the originary interpretation is destined in advance to produce, namely proper interpretative models to read in return, to give sense, necessity and above all legitimacy to the violence that has produced, among others, the interpretative model in question, that is, the discourse of its self-legitimation.43 I see in Derridas process of constitutional interpretation an intertextual character. The constitutional text, the dominant interpretation, is in ongoing dialogue with its future reinterpretations. It is always open to the future and to the possibility of change. On the one hand, the process of constitutional reinterpretation has a transformative potential. Each instance of future reinterpretation is a possibility to challenge and reinvent the norms of constitutional founding, to enrich them with the perspective of the other and the different. The intertextual path of constitutional interpretation is a critical reective process of reinterpreting the past, an attempt to overcome the violence of the founding moment. Through reinterpretation, moreover, the constitutional text can regain its legitimacy and authority. The openness of constitutional text to future interrogation, to destabilization and reinterpretation, is also a hope to overcome the illegitimacy and illegality, the violence of the founding moment. As some commentators argue, it is a hope for justice beyond force, it is a possibility for transcending violence in the future.44 Through
John McCormick, Derrida on Law: Or, Poststructuralism Gets Serious, Political Theory 29/3 (2001) 395423, p. 402. 42 Simon Critchley, The Ethics of Deconstruction: Derrida and Levinas (Oxford: Blackwell, 1992), p. 23. 43 Derrida, Force of Law, p. 36. 44 McCormick, op. cit., p. 399.
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ongoing acts of reinterpretation, the constitutional text undergoes constant making and remaking, challenging the violence and illegitimacy of dominant texts and interpretative meanings. In other words, it challenges the injustice of the constitutional past. Derridas modality of constitutional interpretation suggests an ethical process of constitutional transformation, aiming at a future free of violence and injustice. Derrida maintains, for instance, that the fact that law is deconstructible, that is reinterpretable, is a stroke of luck for politics, for all historical progress.45 He opens the constitutional text to ongoing normative transformation through a critical dialogue between the past and the future, a dialogic interchange between the variety of meanings and languages of the other. Deconstruction thus provides an intricate transformative dynamic between the constitutional past and its future reinterpretation in the history of the political community. Open-Ended Interpretation Looking toward the future and the other, the process of constitutional interpretation is always open-ended.46 The continuous openness of constitutional interpretation is best embodied in Derridas theorizing of legal judgment and its undecidable character. For Derrida, each instance of constitutional interpretation presents a moment of judgment, a possibility of decision-making. On the one hand, Derrida asserts that without a judgment or decision, there would be neither responsibility nor ethics, neither rights nor politics.47 As part of the ongoing interpretative constitutional process, judgment interrupts and cuts through the continuity of the course of history. Each constitutional judgment must be exceptional and new. It should not simply repeat and apply the rules, but invent and bring novelty in interpretation.48 In this sense,
Derrida, op. cit., p. 14. On the future-oriented character of Derridas judgment, see the analyses of Nancy Fraser, The Force of Law: Metaphysical or Political?, Cardozo Law Review 13/4 (1991) 13251331, p. 1326; Drucilla Cornell, Time, Deconstruction, and the Challenge to Legal Positivism: The Call for Judicial Responsibility, Yale Journal of Law & the Humanities 11/1 (1990) 267297, p. 268; Matthias Fritsch, Derridas Democracy to Come, Constellations 9/4 (2002) 574597. 47 ` re Lotringer and Jacques Derrida, Deconstructions: The Im-possible, in Sylve Sande Cohen (eds), French Theory in America (New York: Routledge, 2001), p. 27. 48 Ibid., pp. 2728.
46 45

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Derrida refers to constitutional judgment as a fresh judgment,49 asserting that in order to be just, judgment must be open to the other, to the dierent. This is because each case it is applied to is dierent, requiring a completely unique interpretation. Yet, in order to be free and responsible, constitutional interpretation must go through the ordeal of the undecidable. For Derrida, constitutional interpretation goes through ongoing deliberations, through the impossibility of making a decision or through the madness of making an urgent decision.50 The undecidability of legal judgment shows the impossibility of equating justice and law, justice and constitutional text.51 The irreducibility and tension between justice and law means that constitutional text and its interpretations can only embody a hope for justice, a pursuit of difference and the other. In this sense Derrida likens constitutional interpretation to a moment of suspense, or as he calls it this period of epoche ... which is also the interval of spacing in which transformations, indeed juridico-political revolutions take place.52 In every reading of the constitutional text that nds something new and different from existing canons and norms, Derrida sees an interpretative situation and a hope for justice. In its openness to the future and to the possibility of justice, the Derridean process of constitutional interpretation is politically transformative and emancipatory.53 It means that the intertextual interpretative practice is always open to new and different meanings, to the idea of justice as avenir, or as always to-come.54 The possibility for reinterpretation means an opening of the constitutional project to novel areas of justice, to alterity and difference that develop historically, to all those meanings that have been

Derrida, Force of Law, p. 23. Ibid., p. 24. 51 McCormick, op. cit., p. 403. 52 Ibid., op. cit., p. 20. 53 Ibid, p. 28. For such a reading of Derridas deconstructive approach as transformative and emancipatory to politics and law, see Saul Newman, Derridas Deconstruction of Authority, Philosophy and Social Criticism 27/3 (2001), 120, pp. 1517; Simon Critchley, Remarks on Derrida and Habermas, Constellations 7/4 (2000), 455465, pp. 456457; Fritsch, op. cit., pp. 574597; and Fraser, op. cit., p. 1326. 54 Derrida, Force of Law, p. 27.
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marginalized and oppressed.55 Derrida argues for an ongoing emancipatory extension and reinvention of the normative framework of basic human rights in the Western constitutional discourse. For him, those progressive struggles remain and will have to remain in progress, everywhere in the world, to men and women.56 The open constitutional process must further engage with new problematizations of justice as the issues of abortion, euthanasia, problems of organ transplant, extra-uterine conception, bio-engineering, medical experimentation, the social treatment of AIDS, the macro- or micro-politics of drugs, issues of poverty and homelessness, and the treatment of animals, among others.

MODALITY

OF

INTERTEXTUAL TRANSFORMATION

Building on the understanding of the constitution as inter-text, I analyze in this section the modality of its intertextual transformation. I show how Kristeva and Derrida propose two distinct strategies of intertextual constitutional transformation. While Kristeva promotes intertextuality by radically opposing and separating the ideas of authority, domination and privilege in texts from those of dialogue, openness and pluralism, Derrida deconstructs dominant interpretations and authoritative textual strata by repetition that takes the form of iterability, conservation and redemption. Because of these two very different strategies, I maintain that Kristeva and Derrida end up with two differing modalities of intertextual political change. Intertextual Processualism I have described already how Kristevas concept of intertextuality can be applied to the broader social and political textuality. In my view, Kristeva offers a distinct modality of intertextual transformation, one that has a processual character with an open-ended trajectory. For example, Kristevas approach toward social textuality posits that texts and society transform by moving forward not towards transcendence, but rather toward harmony, all the while implying an idea of

55 56

Ibid., pp. 2728. Ibid., pp. 2829.

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rupture (of opposition and analogy) as a modality of transformation.57 Kristeva associates intertextuality with a modality of transformation that aims at an ongoing and dynamic elaboration of new meanings in texts and society. She proposes an intertextual process of social transformation that is always open-ended and future-oriented wherein multiple meanings develop in an unpredictable and impermanent way. Kristeva uses the term process to underline the path of transformation as something unsettled and questionable. As commentator Leon Roudiez explains, Kristevas use of the term process is associated with the idea of a continued forward motion possibly accompanied by transformations.58 However, such a social transformation does not follow a historically linear or secure progressive trajectory. Let me explain. Kristeva proposes intertextuality as a revolutionary textual strategy. The concept of intertextuality is always questioning and testing of any denitions.59 As a revolutionary strategy, it aims at political and social disruption. The intertextual change assumes a disruptive, or, in Kristevas terms, even transgressive path of constantly challenging and questioning any unitary, categorical and authoritative meaning. It presupposes the acceptance of another law, an other imperative that of pluralism of meanings, of dialogic openness and ongoing rediscovery.60 Thus, the idea of transgression does not allude to an anarchy of meanings in the sense of a freedom to say everything, but rather it presupposes the acceptance of the perspective of the other.61 In general, Kristeva rejects the negative connotation of anarchy with that of chaos or anarchy. Instead, for her, anarchy presents a nonrepressed state of subjectivity, a permanent state of functioning.62 In order to overcome the risk of unconditional destabilization, Kristeva insists on the need for a provisional form of authority, one that is relational, exible and dispersed. Searching for a provisional and stabilizing apparatus, she acknowledges the role of the therapist,

Julia Kristeva, Word, Dialogue, and Novel, in Leon S. Roudiez (ed), op. cit., p. 89. 58 Leon S. Roudiez: Introduction in Roudiez, op. cit., p. 17 (my italics). 59 Kristeva, op. cit., p. 81. 60 Ibid., p. 71. 61 Ibid., p. 71. 62 Guberman, op. cit., p. 37.

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the educator, and of a certain familial authority in society.63 Kristevas intertextual mode of transformation thus connects the idea of social and political destabilization with the need to impose some provisional and exible forms of power and authority in society.64 Yet in my view, the modality of Kristevas intertextual transformation remains unconditionally open-ended and indeterminate. As such, it promotes an endlessly open-ended and dynamic process of transformation, one that is uncompromising in its efforts to destabilize and question any normative status quo. Iterability in Interpretation Like Kristeva, Derrida thinks of the moment of founding as a unique, novel and revolutionary moment. Each instance of constitutional interpretation is a radically transformative, deconstructive moment that destabilizes the meaning of dominant interpretation. Constitutional reinterpretation always embraces alterity, the different other, and is oriented toward the future, toward the unknown. Derrida likens constitutional reinterpretation to a moment of suspense, this period of epoche ... which is also the interval of spacing in which transformations, indeed juridico-political revolutions take place.65 There is something of a revolutionary situation, Derrida asserts, in every reading that founds something new and is unreadable in regard to already existing canons and norms.66 In a way that is distinct from Kristevas revolutionary transformative modality, however, Derrida proposes the idea of iterability that has the possibility of repetition at the heart of the originary.67 For Derrida, in addition to being open-ended, the process of constitutional interpretation is also reproductive, and therefore conservative. Judges apply previously established rules to create new law, simultaneously conserving and destroying the law.68 Only through recourse to the past, through rejustication and reafrmation of past interpretations and decisions, can constitutional judgment be new and free.69 The position of law, or constitution-making, Derrida asserts,
63 64 65 66 67 68 69

Ibid., p. 37. Ibid., p. 37. Derrida, Force of Law, p. 20. Ibid., p. 37. Ibid., p. 38. McCormick, op. cit., p. 403. Derrida, op. cit., p. 23.

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is already iterability, a call for self-conserving repetition.70 Because of its iterability, we can see how constitutional judgment can repeat itself. It is not only open-ended to the future, but it looks to the past, recalling the moment of founding and dominant interpretation. Derridean processes of constitutional interpretation can thus be understood as ongoing repetitions of the founding political and legal discourse, and as a series of continuous and unknown reinterpretations that will take place in the future.71 I interpret the idea of iterability as the possibility of the constitutional project to connecting its constitutional future with the past, with its founding interpretative and performative experience. Iterability is a procedural means to bridge the political communitys past with the future. On the one hand, the idea of iterability allows for reappearance of past interpretations, of the violence of originary moment. Yet, we can also see an attempt to redeem the past from its violence and injustice. As one commentator remarks.
this process of invention and restatement of legal norms also entails a judges responsibility toward memory. This responsibility is not to an accurate repetition through the recollection of legal norms, but to a refutation of the belief that what has been can ever be conated with justice.72

Thus, in addition to being open-ended, the process of intertextual constitutional interpretation can also be seen as containing a necessary moment of redemption. It is possible through reinterpretation to recover from the violent and unjust memory of the past in pursuit of justice in the future. We see how Derrida proposes an intricate new ethics of intertextual constitutional interpretation. While the process of constitutional interpretation is continuously open toward the future, toward justice as alterity, it retains its legitimacy from recalling the past, by being responsible to the memory of the past. I interpret the Derridean intertextual interpretative process of connecting the past and the future as an ongoing ethical process. It embodies an attempt to liberate the future of political community from the injustice and violence of the past, embodied in the imposition of norms and arbitrary interpretations. Finally, because of its iterability, we can see how the Derridean constitutional process is neither a radical, nihilistic replacement of
70 71 72

Ibid., p. 38. Newman, op. cit., pp. 1516. Cornell, op. cit., p. 268.

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one constitutional text with another, nor a mere destruction of the constitution as a text.73 In this way, Derrida diminishes any sharp textual distinctions between the original constitutional text and its future reinterpretations. He concludes that this reduced distinction between foundation and conservation is deconstruction at work.74 The constitution is an unfolding and transformable textual and interpretative strata, an ongoing dialogue between the moment of founding and its future reinterpretations. In its distinct intertextual interpretative process, the constitutional text is open to emancipatory egalitarian transformation. We have seen that Kristeva and Derrida propose two distinct modalities of intertextual political transformation. While Kristevas idea of change is exclusively open-ended and unconditionally interrogates any attempts at xing denitions and stabilizing meanings, Derridas constitutional modality intricately combines the perspectives of the past and the future, the responsibility towards memory with the freedom and alterity of the future. Yet, these two distinct conceptualizations of intertextual transformation are not mutually exclusive but offer different strategies of emancipatory intertextual constitutional transformation.

THE RISK

OF

INDETERMINACY

With their openness to the other and to the future, Kristeva and Derridas intertextual transformative theories may be burdened by a risk of undesirable indeterminacy. As one analyst maintains, Kristevas open-ended approach has the tendency, to valorize transgression and innovation per se irrespective of its content and direction.75 On the other hand, Derridas perpetual openness of reinterpretation may dissolve in an innite regression between the past and the future. Moreover, an unlimited destabilization of

See Newman, op. cit., p. 5. Also, Nancy Fraser argues against interpretations of Derridas deconstruction as entailing nihilism. See Nancy Fraser, op. cit., p. 1326. See also Simon Critchley, op. cit., p. 455. 74 Derrida, op. cit., p. 41. 75 Nancy Fraser, Justice Interruptus: Critical Reections on the Postsocialist Condition (New York: Routledge, 1997), p. 162. Fraser argues that such a transgressive attitude is particularly problematic in feminist politics which requires ethical distinctions between oppressive and emancipatory social norms. (p. 162).

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meanings may open the way for the imposition of arbitrary meanings of justice by those with power in society.76 It can be argued that as non-hierarchical textual strata, the intertextual constitution runs the risk of endless normative conicts between various positions and meanings of justice in a pluralist society. By blurring the clear distinction between the moment of founding and future constitutional interpretations, the intertextual constitutional project is threatened by unconditionally merging the level of higher or ofcial norms of justice and other non-formal interpretations of justice in society. In this way, intertextuality may sink constitutional topics into ordinary politics and policy-making and thus conate this normativity with societys common norms of justice and everyday policy issues about the good. The complete fusion of constitutional normativity with ordinary political life would allow those with material advantages and power to impose easily their interpretations of justice on the rest of the society, thus suppressing the viewpoints of the weaker and marginalized groups. In addition, the notion of an innite deconstruction of meanings implies that there are no normative grounds to distinguish between good or bad interpretations of justice, that there are no criteria for justifying a preference for one interpretation over another. With its openness towards new and diverse interpretations of the good, the intertextual constitution may be seen as risking the promotion of arbitrary norms of justice, and possibly allowing for regressive and undesirable meanings of justice to enter the constitutional space. The question then arises as to how to protect the intertextual interpretative process from undesirable and regressive interpretations of good. Another critical question for the intertextual constitutional project is how to ensure future normative changes without jeopardizing the progressive interpretative achievements of the past. In my view, any constitutional interpretations that violate the equality and freedom of citizens should be incompatible with the intertextual process of constitutional interpretation. By violation of conditions of equality, I understand constitutional interpretations that promote relationships of privilege, disadvantage, and oppression among members of society. For example, constitutional
Michel Rosenfeld, Just Interpretations: Law between Ethics and Politics (Berkeley: University of California Press, 1998). For instance, Rosenfeld remarks that indeterminacy can also lead to the imposition of arbitrary meanings by those with greatest power or cunning in society. (p. 19).
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interpretations that promote roles of domination, subordination, and suppression are forms of injustice. Among those are racist, sexist, ageist, homophobic ideas and texts, in addition to all those meanings that promote inequality and oppression among members of society. Regressive meanings violate the equality and freedom of all citizens, harboring relationships of privilege and domination. Such regressive meanings are incompatible, in my view, with the ethics of the intertextual constitutional process as discussed here. Promoting equality and freedom in constitutional interpretation requires a new kind of intertextual normativity. It demands that in addition to being open-ended and pluralist, the intertextual constitutional process promotes only just meanings that enhance the conditions of equality and freedom among all members of society. On this reading, all regressive meanings should be considered as unjust, or anti-intertextual. For example, I consider a constitutional ban on gay marriage to be a form of discrimination, a regressive interpretation of the meaning of the institution of marriage. A constitutional text that discriminates among citizens based on sexual orientation inhibits gay citizens equality and freedom in society. Any textual interpretation that bans gay marriage imposes social exclusion, placing gay people in a position of subordination and disadvantage in comparison to heterosexuals. As a result, it creates new forms of social hierarchies and discriminatory relationships. This form of constitutional interpretation violates the equality and freedom of all, and is therefore unjust. The privileging of heterosexual marriage over other forms of marriage violates the fundamental ethical precept of the intertextual constitutional process the responsibility to be open toward the voices and perspective of the other. The ethical irresponsibility of discriminatory constitutional interpretation is also expressed through its disregard of the past, specically its disregard of the possibility of rectifying past injustices. Therefore, a constitutional ban on gay marriage is an example of unjust and regressive normativity that is incompatible with the ethico-emancipatory character of the intertextual constitutional process. Nor should the process of intertextual constitutional interpretation be associated with the idea of anything goes. Constitutional interpretation is incompatible with meanings built on false notions of equality and freedom, which protect relationships of domination and oppression. For instance, not all polygamy as practised today

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in the United States is built on the equality and free participation of all the members of the polygamous union. Many practices in polygamous Mormon communities are built on the strictly authoritarian and oppressive relationships of domination on the part of a husband towards his subordinate wives. Such relationships are forms of injustice for they may not allow for all members to freely participate, to make and construct co-equally their personal lives and relationships. Indeed, in most cases, polygamous relationships of the religious type promote forms of domination and subordination, of inequality and lack of free will, and as such are incompatible with intertextual constitutional normativity. Any constitutional interpretation that justies and promotes these social practices dees, in my view, the conditions for equality and freedom for all members of society and is thus undesirable and unjust. Finally, I want to stress that with its potential to change, the intertextual constitution presents a better alternative to the conventional constitutional textuality. The intertextual constitutional model is not only open to future revision and innovation but it challenges and liberates public texts and interpretations from any meanings of inequality, intolerance and privilege. By embracing the ideals of dialogue, pluralism and change, the concept of the intertextual constitution effectively provides for the qualitative social transformation and democratization of modern liberal life. Department of Political Science The New School for Social Research 79 Fifth Avenue New York City NY, 10003 USA E-mail: Vargom01@newschool.edu, VargovaM@aol.com