Hermeneutics and Constitutional Law: Orignialism v. Status Quo

    I believe Originalism, wherein you find the original intent of the author of any document, is not the right way to approach hermeneutics in regards to the United States Constitution.  Rather, me must study the context of the text and the surrounding sociocultural issues at had.  A prime example of a case leading to this is the Wickard v. Filburn case of 1942, wherein the United States Supreme Court held that a farmer raising and consuming grain on his own land is engaged in “interstate commerce.”

    “This is a decision that still stands, after more than fifty years, despite its patient sophistry and dishonesty.  Thus, it is a good example for a deconstructionist claim that a text can mean anything.  In a practical sense, that is certainly true.  On the other hand, there is little pretense that the Supreme Court decision was an honest reading of the Constitution.  The principle is now rather blatantly put forward that the Constitution means whatever the Supreme Court says it means.” (21)

    Steve Woolgar, a philosopher who specializes in science and theories, was quoted in saying; “[realist ontology is a post-hoc­ justification of existing institutional arrangements.” (qtd. 22, p498) That is to say, in regards to the law, that most theories tend to reflect a decisive sociocultural bias – meaning they are not immune from political events or popular trends.

    I will outline a number of cases which I believe reflect these views in our modern times.  In each case the court first claimed their interpretation of the Constitution was right – and in the next it was quite the opposite.  In my inexpert opinion it seems that each of these cases reflected the values related to the current status quo at that time.  I feel the evidence is overwhelming in light of the sheer number of cases wherein this dual outcome occurs.

    Pace v. Alabama was the case where the ruling was “that the statute did not violate the Equal Protection Clause of the Fourteenth Amendment because it did not constitute discrimination for or against either race to prohibit interracial sexual relations.” (9)  This, in turn, meant that miscegenation was constitutional according to the Supreme Court.  In their defense; they did not have much key precedents to guide them.  This case was cited as a precedent for the Racial Integrity Act of 1924.

    So, in the courts interpretation of the Constitution they found banning interracial marriages to be in line with the the framers intended.  When speaking to an average person, such as a student (discounting law students, of course)  I found the most common response was that of, “well, they didn’t know much better back then” or something close to similar in their responses as to why the court decided as they did.  How is this possible?  Aren’t the judges of 1883 referring to the same Constitution of 2009?  How can one judge interpret  so radically different from another?  To even begin to address the problem we must focus on the hermeneutics of the Constitution.

    “In exegetical hermeneutics, interpretation was a means to achieve understanding – that is, interpretation preceded understanding.  In contrast, in hermeneutic philosophy – where understanding is primordial – in interpretation, understanding becomes explicit; interpretation unfolds what was already extant in understanding; interpretation does not yield a different understanding, rather primarily understanding becomes itself.” (20)

That is to say, we strive to understand through interpretation, yet our understanding does not come from the act of interpreting itself, but from something more basic than that.  It comes down to your own epistemic beliefs on whether or not not you believe their can be objective knowledge or not.  So interpreting anything does not change your understanding rather your understanding changes your process of interpretation.

    In hermeneutic philosophy, as developed by Martin Heidegger, the structure of the hermeneutical circle is constitutive for human existence in itself – and world-understanding. (20)  Within this context, the hermenuetical circle is the mark that points to the impossibility of objective knowledge. (20)  However, not everyone who studies hermeneutics believes there can eb no objective knowledge gained form such endeavors.

    “Hermeneutic theory shows us the dimension of meaning and understanding in knowledge, but the dimension of truth and knowledge as such still depends on a foundational, absolute, and objective aspect of reality.” (21) However, epistemology is not the focus of this paper we’re studying the actual interpretation of the Constitution.

    Such political interpretations can stand only as long as no one, or no one with sufficient influence, cares about the original or honest meaning.  The dishonest interpretation of the Consitution can be made, indeed, only because people believe in different founding principles.  Their truth claim is not about the Constitution, but about the principles embodied in the interpretations, whether or not they have anything to do with the Constitution. (21)

    Plessey v. Ferguson was the landmark case that stated that segregation of the white and African-American races was constitutional.

    “When summarizing, Justice Brown declared, ‘We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority.  If this be so, it is not by reason of anything found in the act. But solely because the colored race chooses to put that construction upon it.” (24)

    Unsurprisingly, fifty-eight years later, this exact same argument was voided and became the pivot point for the abolishment of the “separate but equal” did  violate the Fourteenth Amendment as well as imply inferiority.

    The Racial Integrity Act of 1924 was the eugenics law that in addition to; providing for the sexual sterilization of State Institutionalized inmates in certain cases, also made marriage between white persons and non-white persons a felony. (6)  This decision stood till 1967 when it was repealed by Loving v. Virginia.  To those who think forty years is not the worse case, remember your own state’s history: “The eugenics movement proved popular in the United States, with Indiana enacting the nation’s first eugenics-based sterilization law in 1907.” (6)

    In 1954 the United States Supreme Court repealed the decision made in Plessey v. Ferguson in the Brown v. Board of Education of Topeka case.  Using the same arguments from the Plessey v. Ferguson case; with several other supporting arguments.  Such as the right to education; which is both the basis for self-development and the very foundation of a good society.  These points can be summarized into a more general statement – desegregation is necessary to autonomy.

    Boiling v. Sharpe was the United States Supreme Court’s decision, or lack thereof, in dealing with segregation in public schools.  It’s often considered a companion case to the Brown v. Board of Education of Topeka.  “The court… decided unanimously in favor of the plaintiffs. …while the 14th Amendment… did not apply in the District of Columbia, the Fifth Amendment did apply.” (8)

    Some controversy arose with this decision as many critics said it was difficult to reconcile with text of the Constitution. (8)  These criticisms arose from the Originalism / Textualism supporters who claimed the framers of the Constitution intended for the races to be separated.

    McLaughlin v. Florida was the case which finally overturned the Pace v. Alabama ruling of 1883.  The court decided that prohibiting interracial marriages was, in fact, unconstitutional.  Although, in this case they did not rule that whites marring blacks was constitutional.  That decision would come later; with the Loving v. Virginia case in 1967.

    In Loving v. Virginia, the United States Supreme Court finally ended all race-based legal restrictions on marriages in the United States.  It was “argued that the case at hand was not a violation of the Fourteenth Amendment Equal Protection Clause because both the white and non-white spouse were punished equally for the crime of miscegenation.” (7)  This argument is almost exactly the same argument, which previously failed, in the Pace v. Alabama case of 1883.

    These are just a few of the examples of how radically different the Constitution can be interpreted depending on what issues are happening in the culture at the time of the case.  It’s with these cases in mind that I continue to purpose that the hermeneutics of the United States Constitution are arrived upon in an ad-hoc fashion.  Always focused on the current situation and cultural paradigms.

    My last example of such an example is the Bush v. Gore case of 2000.  Just talking about this case makes me cringe physically.  In this case, the court actually ruled that it’s ruling was specific to this case only.  Which is clearly evidence for my theory that all court decisions are devised in an ad-hoc manner.  They knew that if their ruling were to be applied to all elections, it would make all of them faulty!  Knowing this, they still preceded to rule in the favor of Bush.  They held that “the Florida Supreme Court’s method for recounting ballots was a violation of the Equal Protection Clause of the Fourteenth Amendment.” (23)  Even though, this would nullify every single election in the history of the United States, local, state, and federal.

    The judges seemingly ignore or embrace the “original intent” of the framers when it does or does not suit their own social ideals.  However, that is just a superficial glance into the meaning.  Context is the deciding factor, to be sure.  With context we can interpret a variety of ideas originating from spoken or written language.  Ignoring context would be similar to ignoring the social conditions form which these beforehand mentioned cases manifested in their rulings.

    After reading more into the subject of hermeneutics I found several references to context and its impact on the act of interpretation.  According to Paul Ricoeur; context “is the play of affinities between certain dimensions of meaning of the various words in a sentence.” (16)  In short; context allows us to bridge the gap of ambiguous words with more complete structure.

    I believe context allows for the silencing of certain arguments, such as Simon Cozens’ claim, that a highly-skilled sophist can present an interpretation of any law in a completely opposite sense to the laws intended meaning. (19)  Theoretically, the facility of context will avoid such interpretations from holding undue merit in matters pertaining to United States law.

    “Original Intent” or more commonly referred to as Originalism, maintains that “a court should determine what the authors of the text were trying to achieve, and to give effect to what they intended the statute to accomplish, the actual text of the legislation notwithstanding.” (1)  Hermeneutics originally meant taking counsel with.  It has sense evolved through a complicated set of definitions.  But in the United States Supreme Court it seems to work in both it’s modern and ancient meanings.  The justices take counsel with each other (presumably), and, they try to uncover the meaning of the text in the Constitution, both as to what it meant then and what it means now.  This reveals an insight of hermeneutics; that what is meant then can differ from what it means now, and that the current reader may understand the text better than the author.  The Second Amendment is a good example of when these streams of interpretation collide.

    One’s tempted to read the Constitution the way you’d read this paper.  One person wrote this paper over a relatively short timespan, so probably its the product of one intention.  But the legislation that created the Constitution in its current form is thousands of people over hundreds of years.  For any bill, there is typically legislators who oppose it.  Some might sign it without reading it.  Others support it only because it gains them votes that let them fulfill their real goals.  In a case like this, obviously there’s no such thing as the legislator’s intent.

    The distinction lies in the difference between the Constitution and regular law.  For example, the Supreme Court interprets laws with respect to the Constitution.  They may find a law unconstitutional, but they never find the Constitution itself ‘unconstitutional’.  This merely means that they have changed an interpretation.  Also, the emending process is difficult – pretty much all states have to agree for there to be an amendment.  Nor can a single legislature circumvent the Constitution by passing on their own a law, because soon enough, if its objectionable, it will end up before the Supreme Court and be overturned.

    In conclusion, I believe Original Intent, or Originalism, is simply the wrong way to approach an interpretation of laws made today; by today’s Justices.  How would you decide a case?  I doubt if you would use a time machine and go back and ask the original framers.  Which would be interesting, but you would not be bound by their views, would you?  All that being said, I think that it is near impossible to find the original intent of any document, especially one like the Constitution which has multiple authors, and thus at least, multiple intents.

    1. Original intent. Wikipedia. Available at: http://en.wikipedia.org/wiki/Original_intent [Accessed April 19, 2009].
    2. Wickard v. Filburn. Wikipedia. Available at: http://en.wikipedia.org/wiki/Wickard_v._Filburn [Accessed April 16, 2009].
    3. Privileges or Immunities Clause. Wikipedia. Available at: http://en.wikipedia.org/wiki/Privileges_or_Immunities_clause [Accessed April 16, 2009].
    4. Plessy v. Ferguson. Wikipedia. Available at: http://en.wikipedia.org/wiki/Plessy_v._Ferguson [Accessed April 16, 2009].
    5. Anti-miscegenation laws. Wikipedia. Available at: http://en.wikipedia.org/wiki/Anti-miscegenation#The_repeal_of_Anti-miscegenation_laws.2C_1948-1967 [Accessed April 16, 2009].
    6. Racial Integrity Act of 1924. Wikipedia. Available at: http://en.wikipedia.org/wiki/Racial_Integrity_Act_of_1924 [Accessed April 16, 2009].
    7. Loving v. Virginia. Wikipedia. Available at: http://en.wikipedia.org/wiki/Loving_v._Virginia [Accessed April 16, 2009].
    8. Bolling v. Sharpe. Wikipedia. Available at: http://en.wikipedia.org/wiki/Bolling_v._Sharpe [Accessed April 16, 2009].
    9. Pace v. Alabama. Wikipedia. Available at: http://en.wikipedia.org/wiki/Pace_v._Alabama [Accessed April 16, 2009].
    10. McLaughlin v. Florida. Wikipedia. Available at: http://en.wikipedia.org/wiki/McLaughlin_v._Florida [Accessed April 16, 2009].
    11. Equal Protection Clause. Wikipedia. Available at: http://en.wikipedia.org/wiki/Equal_Protection [Accessed April 16, 2009].
    12. Brown v. Board of Education. Wikipedia. Available at: http://en.wikipedia.org/wiki/Brown_v._Board_of_Education [Accessed April 16, 2009].
    13. Hermeneutics. Wikipedia. Available at: http://en.wikipedia.org/wiki/Hermeneutics [Accessed April 15, 2009].
    14. Toplak C. (Page 1 of 9) – Teaching Political Science: Hermeneutics and Facilitation authored by Toplak, Cirila. All Academic Research. 2008. Available at: http://www.allacademic.com//meta/p_mla_apa_research_citation/0/1/1/6/0/pages11600/p11600-1.php [Accessed April 15, 2009].
    15. Small N, Mannion R. A Hermeneutic Science: Health Economics and Habermas. Emerald. 2005. Available at: http://www.emeraldinsight.com/Insight/ViewContentServlet?contentType=Article&Filename=Published/EmeraldFullTextArticle/Articles/0250190304.html [Accessed April 15, 2009].
    16. Ricoeur P. The Conflict of Interpretations. Northwestern University Press; 1974:512.
    17. Kelly M. Hermeneutics and Critical Theory in Ethics and Politics. 1st ed. MIT Press; 1990:285.
    18. Helmut K. Elements of a Hermeneutics of Knowledge in Government : The Coalition of Public Sector Reform and Enterprise Resource Planning. QUT ePrints. 2009. Available at: http://eprints.qut.edu.au/15915/ [Accessed April 16, 2009].
    19. Cozens S. Warning: Hermeneutics may cause World War III. Where Everybody’s Crazy. 2007. Available at: http://blog.simon-cozens.org/post/print/1180 [Accessed April 15, 2009].
    20. Bleicher J. Contempotary Hermeneutics. Routledge & Kegan Paul Ltd; 1980:288.
    21. Bernstein R. Beyond Objectivism and Relativism. The Proceedings of the Friesian School, Fourth Series. 1983. Available at: http://www.friesian.com/bernsten.htm [Accessed April 15, 2009].
    22. Balashov Y, Rosenburg A. Philosophy of Science: contemporary readings. Routledge; 2002:522.
    23. Bush v. Gore. Wikipedia. Available at: http://en.wikipedia.org/wiki/Bush_v._Gore [Accessed April 30, 2009].

Originally writ, err wrote, around April 30th 2009.

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