Conservatives, Liberals, Romantics: The Persistent Quest for Certainty in Constitutional Interpretation

Article excerpt

I. INTRODUCTION

From the time that Robert Bork issued his first attack on the Warren Court,1 originalism has belonged to political conservatives. This interpretive theory, which holds that the understanding of the Constitution at the time it was drafted and ratified controls its contemporary meaning, has been regularly utilized by conservative judges and politicians over the last two decades to question the legitimacy of various (mostly liberal) Supreme Court decisions.2 Given the liberal tilt of the legal academy, it is not suprising that advocates of originalism constitute a minority of constitutional scholars.3

Recently, a prominent constitutional theorist with unmistakably liberal credentials announced his conversion to originalism. Michael Perry, once a self-described non-originalist, now argues that originalism is the only legitimate method of interpreting the Constitution.4 Perry did not change his political commitments along with his methodological ones, however; his recent work is an extended argument against the "conservative originalism" advocated by Bork. Like John Ely, who sought to defend the activist decisions of the Warren Court against conservative attacks on their legitimacy,5 Perry seeks to blunt more recent conservative criticism of the Court by demonstrating that originalist interpretation need not foreclose broad readings of the individual rights protected by the Fourteenth Amendment.6

Despite their considerable ideological differences, both Bork's "conservative originalism" and Perry's less constrained "progressive originalism" divide the process of understanding into cognitive and normative aspects. The determination of the original meaning of the Constitution is methodologically separated from the question of how this predetermined meaning should be applied in a particular contemporary case.7 This places both Bork and Perry squarely in the tradition of Romantic hermeneutics, which sought to overcome the uncertainty and imprecision of textual interpretation by developing a "science of interpretation" as epistemologically reliable as the methods of the natural sciences.

The Romantic hermeneutic tradition influenced American law through the work of Francis Lieber, a German immigrant to the United States who published a treatise on legal interpretation in 1839.8 Like contemporary originalists, Lieber exhibited the characteristic Romantic anxiety over the uncertainty of interpretation, and sought to develop a method that would guarantee the correctness of interpretive meanings ascribed to legal texts by judges and lawyers.9

In Truth and Method,10 German philosopher Hans-Georg Gadamer argued that the presuppositions of the Romantic quest for epistemological certainty in interpretation are inconsistent with how human beings understand texts.11 Though it is not frequently cited in American legal scholarship, Truth and Method has long been viewed by continental and postmodern philosophers as the most important work on textual interpretation published in this century.l2 Thus, the more interesting question raised by Perry's conversion to originalism is not whether he or Bork espouses the better version of the method, but whether either (or any) version of originalism is a useful way to investigate questions about the meaning of the Constitution in light of Gadamer's argument.

I will argue that it is not. I first discuss Gadamer's point that separation of the cognitive or "objective" meaning of a text from its normative or "subjective" application is not consistent with the process of understanding.l3 Both Bork's and Perry's use of their respective versions of originalism illustrates Gadamer's central point: that the epistemological certainty in interpretation sought by separation of the cognitive from the normative cannot be achieved.l4 That theorists on both the right and the left persist in their attempts to guarantee interpretive meaning through "objective" methodologies like originalism is evidence of the extent to which constitutional theory remains confined by the questionable assumptions of the Romantic tradition. …