Constitutions of No Authority: Spoonerian Reflections

Article excerpt

The interpretation of law is a complex matter. In the United Kingdom, the desideratum in regard to statutory interpretation is for the courts to discern Parliament's intent. The House of Lords in Maunsell v. Olins ([1975] A.C. 373) approved a "unified contextual approach" (a la Cross) that prioritizes a contextually sensitive but literal reading of the words of the relevant act. Since Pepper v. Hart ([1993] AC 593), courts may (but are not obliged to) consult Hansard (the edited record of what has been said in Parliament, including votes, written ministerial statements, and written answers to parliamentary questions) to assist them in discerning parliamentary intent, a procedure previously not permitted. The proper interpretation of case law is notoriously difficult even though here no question of discerning legislative intent arises. Constitutional interpretation is no less complex. A lively debate on the appropriate method or methods of constitutional interpretation is taking place, particularly in jurisdictions with a written constitution. In the Anglophone world, the United States is the locus of the most interesting and active debate.

There are two basic approaches to constitutional interpretation: originalism, which makes the intention of the drafters, the intention of the approvers, or the meaning of the text as it was understood or would have been understood by the drafters or approvers the criterion of interpretation; and vitalism, which prioritizes the needs of contemporary society over any strict intentional or semantic textual construction.

Vitalists, who believe that original intent, meaning, or understanding is either unobtainable or, if obtainable, cannot be allowed to constrain the courts' hermeneutic practice, typically want a constitution to be construed as a living document.

Originalism comes in two basic varieties that are often conflated--original intent and original meaning (sometimes called original understanding). Original intent is not an easy position to defend (despite the norm of statutory interpretation being the discernment of Parliament's intent) for the simple reason that it is difficult, if not impossible, to comprehend anyone's intent even here and now, let alone what it was seventy or two hundred years ago. When originalism is summarily dismissed, it is usually original intent that is being rejected. Original meaning (or understanding), however, is a matter of historical investigation and is no more or no less difficult to ascertain than any other matter of historical investigation. Interpretations based on this criterion may not be rationally coercive, but they are rational.

Vitalism, in contrast, appears to undermine the very point of having a constitution in the first place, allowing constitutional interpretation to become a kind of rhapsodic free association only tangentially connected to the constitutional text. The purpose of such interpretation often appears to be to explain away the text rather than to explain it. (See Keith Whittington's [1999] devastating critique of theories of textual indeterminacy, such as deconstruction, structuralism, poststructuralism, reader-response theory, and hermeneutics, all of which are frequently--but mistakenly--taken to render all forms of originalism otiose.)

I do not pursue these topics further here. (Interested readers may consult Casey 2004, 2005, and 2009 and their associated bibliographies.) My reason for bracketing these matters is simply that the whole debate on constitutional interpretation, fascinating as it may be, takes place under the umbrella of a prior assumption--namely, that constitutions, howsoever they may be interpreted, are authoritative. Why should we believe they are?

What Are Constitutions? How Do They Come into Being? Why Are They Authoritative?

A constitution is a document, a set of documents, or, in the case of the United Kingdom, a mixture of legislation, case law, conventions, and customs that is considered to be the basic law of the state. …