Hermeneutics of the Constitution?

The other day I received an email from a German publishing house.  The sender was obviously confusing me with somebody else of the same name:

In the course of a research at the university of Chicago, I came across a reference to your thesis on “Modern Hermeneutics and Catholic fundamental theology:  The use and critique of the philosophy of Hans-George Gadamer and Paul Ricoeur in Edward Shilllebeeckx, Claude Geffre and Francis Schuessler Fiorenza”.

I informed the publisher’s rep that he had the wrong party– I was not Peter Kenny the theologian (must look him up sometime). And since I had only a vague idea of what hermeneutics meant I referred to Wickipedia and found some interesting material– which even referred to Gadamer and Ricoeur:

Traditional hermeneutics involves interpretation theories that concern the meaning of written texts. These theories focus on the relationships found between the author, reader and text. E.D. Hirsch argued that the meaning of a text is determined by the author’s intent. Hans-Georg Gadamer argued that the meaning of the text goes beyond the author, and therefore the meaning is determined by the point where the horizons of the reader and the writer meet. Paul Ricoeur argued that the text is independent of the author’s intent and original audience, and therefore the reader determines the meaning of the text.

It occurred to me: isn’t what legal scholars do when they discuss the US Constitution the same as “hermeneutics”? One can see the same divergent schools of thought. (I again consulted Wikipedia on this). What’s done to the poor US Constitution? Some speak of original intent: what did the founders intend to establish in that document? That’s not quite the same as being an originalist or formalist, like Justice Scalia: he says, look at what the text meant when it was written – the original meaning. And if you don’t like that, he says, amend it! And then, the many advocates of the living constitution, the most flexible document you could imagine: the idea of a living constitution, which says that the judiciary has the power to modify the meaning of constitutional provisions to adapt … to “the evolving standards of decency that mark the progress of a maturing society.”

It’s understandable that theologians would devise many non-obvious interpretations of Scripture, since it isn’t acceptable to just change what the presumably-inspired authors wrote – that would be considered mis-translation or even blasphemy. But our constitution isn’t really a sacred document, and it can be amended! I think the “living constitution” advocates are just amending it by fiat—putting into effect those “reforms” that they have trouble getting the unwashed masses to approve.

So I tend to agree with Justice Scalia: For Scalia, this idea [original intent] misunderstands and negates what he calls the “anti-evolutionary purpose” of a constitution. A society that adopts a constitution, he says, “is skeptical…that societies always ‘mature,’ as opposed to rot.” Scalia notes further that many important social advances, such as women’s suffrage, were achieved not by judicial fiat but constitutional amendments – whose adoption, Scalia adds, is slow and cumbersome by design. The idea is that amending of the Constitution allows for democratic change as opposed to top-down rule by judges. He also compares his interpretation of the Constitution to general interpretation of other laws or statutes, which are not thought to change over time. When questioned by Harvard Law School Dean Elena Kagan about his support of a “dead Constitution,” Scalia replied: “I can package it better than that. I call it the enduring Constitution.”


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