Theories of Constitutional Interpretation

ROBERT POST

Moderndemocracy invites us toreplace the notion of a regimefounded upon laws, of a legitimatepower, by the notion of a regimefounded upon the legitimacyof a debate as to what is legitimateand what is illegitimate-a debatewhich is necessarily withoutany guarantor and withoutany end. -Claude Lefort'

IN 1979 ERNEST CHAMBERS was a barber who had for nine years rep- resented a predominantlyblack districtof Omaha in the Nebraska Unicameral Legislature. He had been brought up in "a religiousstrait-jacket" in the funda- mentalistChurch of God and Christ,but as he had grownolder he had come to renounce Christianityand all beliefin God. Consequentlyhe was uncomfortable when the chaplain hired by the legislatureopened each session with prayer.In facthe feltcompelled to leave the legislativechamber, so thathe and the chaplain were "almostin a race to see whether"the chaplain could "get to the frontbefore" Chambers could "get out the back door."2 The chaplain of the Nebraska Legislature during that time was Robert E. Palmer, a Presbyterianclergyman who had ministeredto the legislatorssince 1965. His prayerswere short,almost perfunctory.He stroveto make them non- sectarian,to reflect'just civilreligion in America,"which he understood to consist of "the Judeo-Christiantradition," the "kind of religious expressions that are common to the vast, overwhelmingmajority of most all Americans."He viewed the purpose of his prayersto be the provisionof "an opportunityfor Senators to be drawn closer to theirunderstanding of God as theyunderstand God, in order thatthe divine wisdom mightbe theirsas theyconduct theirbusiness forthe day." And so he would, for example, pray "in the name of Jesus-our Friend, our Saviour,our Example, our Guide," and he would "ask" thatthe Senators come to realize that "theyare part of the team workingtogether to win the game for the benefitof the people of thisstate."3 Chambers attemptedto convince his colleagues to end the practiceof legislative prayer.When theyrefused, he took the characteristicallyAmerican step of filingsuit in federal court. His claim was elegantlysimple: the paymentof a state salary to the ministerof a single Christiandenomination for fourteenyears for the purpose of offeringofficial prayers to the state legislaturewas a violationof the EstablishmentClause of the FirstAmendment to the United States Consti- tution. That clause provides: "Congress shall make no law respectingan estab- lishmentof religion."4

REPRESENTATIONS 30 * Spring 1990 (? THE REGENTS OF THE UNIVERSITY OF CALIFORNIA 13 The trialcourt held thatwhile the paymentof the chaplain's salaryviolated the EstablishmentClause, the observance of legislativeprayer did not.5 The appellate court went even furtherand declared thatthe whole "prayerpractice" was unconstitutional. The case was then accepted for decision by the United States Supreme Court, by whichtime the concreteconcerns of Ernest Chambers and Robert Palmer had dwindled to littleor no moment.Chambers's lawsuit had become merely a medium through which the Court could ponder the legal meaning for the entire nation of the EstablishmentClause. The methods by which the Court ascertains this constitutionalmeaning are of the utmost legal and politicalimportance. Ernest Chambers'slawsuit would prove to be the occasion for an unusuallyclear and dramaticdisplay of these methods.

Sometimes,although rarely,the words of the Constitutionappear to speak for themselves.In such circumstancesthe Constitutiondoes not seem to require interpretation.Article I, Section 3, Clause 1 of the Constitution,for example, states that "the Senate of the United States shall be composed of two Senators fromeach State." If a thirdCalifornia Senator should one day present herselffor accreditation in Washington,D.C., no courtin the countrywould think twicebefore disapprovingof the application. From a phenomenologicalpoint of view,there would be no question of "interpreting"the constitutionallanguage, for its meaning and application would appear clear and obvious.7 The most famous expression of the experience of this clarityis by Justice Owen Roberts,who in 1936 wrote that the "judicial branch of the government has only one duty,-to lay the articleof the Constitutionwhich is involvedbeside the statutewhich is challenged and to decide whetherthe lattersquares withthe former."8In legal circles, this approach is sometimescharacterized as a "plain meaning" or "textualist"theory of interpretation.Yet, strictlyspeaking, the approach is not a theoryat all; it is instead a descriptionof what happens when constitutionalmeaning is not problematic. But if for any reason thatmeaning has become questionable, it is no help at all to instructa judge to followthe "plain meaning" of the constitutionaltext. A meaning thathas ceased to be plain cannot be made so by sheer forceof will.9In Chambers'slawsuit, for example, eitherthe meaningof the EstablishmentClause with respect to the issue of legislativeprayer is "plain," or it is not. If the latter, the question of constitutionalmeaning cannot be resolved by staringharder at the ten words of the clause. What is required instead is a means of interpreting the textso as to mediate between the clause and itsapplication.'0 Because judges must be able tojustify their decisions, they must also be able to justifythe means of interpretationthat theyemploy to reach those decisions,

14 REPRESENTATIONS particularlyif their choice affectsthe ultimate result or significanceof a case. Judges must be able to explain whythey have decided to interpretthe Constitu- tion through one set of inquiries ratherthan another. In legal (although not in philosophical or literary)parlance, judges require and must be able to articulate a "theory"of constitutionalinterpretation. Any such theoryof interpretation,however, must accommodate itselfto the role of judicial review withinAmerican democracy.When a court sets aside a statuteas unconstitutional,it in essence deems the statuteinvalid in the name of the Constitution.Courts have claimed the power to do thisbecause, in the famous words of John Marshall in Marburyv. Madison,the decision that established the institutionofjudicial review,"it is emphaticallythe provinceand dutyof thejudicial departmentto say what the law is.""l The implicitpremise of thisclaim is that the Constitutionis a formof "law,"just like the law whichcourts ordinarily interpret and apply. Fidelityto law is a preeminentvalue in a nation that,as Marshall put it in Marbury,prides itselfin being "a governmentof laws,and not of men."'2 But, as the force of Marshall's argument in Marburyalso required him to acknowledge, the Constitutionis somethingmore than ordinarylaw; it is "the fundamental and paramount law of the nation." The Constitutionis "fundamental"because it is the vehiclethrough which "the people . .. establish,for their future government,such principlesas, in theiropinion, shall most conduce to theirown happiness."The Constitutionis therefore"the basis on whichthe whole American fabric has been erected."'3 The question arises, therefore,why it should be the provinceand dutyof the federaljudiciary to discernin that"Amer- ican fabric"the "principles"and "opinion" of "the people," when thatjudiciary is not elected by and hence structurallyresponsible to the people. Why shouldn't that task be allocated instead to the democraticallyelected branches of government,which are presumptivelyin closer contactwith the popular mind? This question, which is sometimestermed the "counter-majoritarian"difficulty,'4has proved durable enough to sustain the work of generations of con- stitutionalscholars. The question makes a powerfulpolitical point. Judicial de- terminationsof unconstitutionalitynullify the actions of democraticallyelected branchesof government.Such determinationsare forall practicalpurposes final; often the only formal recourse is the cumbersome and impracticalprocess of constitutionalamendment. "Who are these nine Justices,"one may well have asked the Court in 1857 afterthe Dred Scottdecision,'5 "so definitivelyto instruct the nation about the 'Americanfabric'?"

The United States Supreme Court voted 6 to 3 against Ernest Cham- bers. If one were simplyto view the Constitutionas ordinarylaw, this outcome

Theoriesof Constitutional Interpretation 15 would have been somethingof a surprise.The relevantprecedents of the Court pointed unambiguously to the unconstitutionalityof the practice of legislative prayer.As JusticeWilliam J. Brennan pointed out in his dissent,it is "obvious that,if the Court were tojudge legislativeprayer through the unsentimentaleye of our settleddoctrine, it would have to strikeit down as a clear violationof the EstablishmentClause."''6 In ordinaryadjudication, courts followthe principleof staredecisis, which is to say that theyfollow the doctrinalrules laid down in controllingprecedents.'7 In American law, the principleconstitutes a fundamentalaspect of "the rule of law,"'8 for it requires courtsto decide cases on the basis of public and predictable rules, applied in an even-handed manner,upon which persons can rely in the conduct of theirlives.'9 In constitutionaladjudication, "adherence to precedent can contributeto the importantnotion that the law is impersonal in character, that the Court believes itselfto be followinga 'law whichbinds [it] as well as the litigants.'"20 The principle of staredecisis helps to ensure that our constitutional order retains the kind of stabilityand continuitythat are prerequisitefor insti- tutionallegitimacy. If the Court in Ernest Chambers's case had followed the principle of stare decisis,it would have deemed controlling,as did the Court of Appeals below,2'the three-partdoctrinal test laid down in Lemonv. Kurtzman:22

Everyanalysis in thisarea mustbegin withconsideration of the cumulativecriteria developed bythe Court over manyyears. Three such testsmay be gleaned fromour cases. First, the statutemust have a secular legislativepurpose; second, its principalor primaryeffect mustbe one thatneither advances nor inhibitsreligion; finally, the statutemust not foster an excessivegovernment entanglement with religion."

The primarypurpose of religious prayer cannot reasonably be deemed to be secular; nor can its principal effectbe understood as anythingother than en- hancing religion. As for the potentialfor "excessive governmententanglement withreligion," it is apparent thatofficial sponsorship of prayernecessarily entan- gles the state in decisions about which formsof prayerare appropriate or inap- propriate. The word was passed to Reverend Palmer,for example, thatJewish senators in the Nebraska Legislature were offendedby his many referencesto Christ.23 Eighty years before, when a state senator conveyed a similar message to the legislativechaplain of the State Senate of California,a local clergymanthun- dered thatthe senator's"words were those of an irreverentand godless man" and that his offensewas a "crowninginfamy."24 The point of the "entanglements" prong of the Lemonrule is to ensure that the state not be embroiled in religious quarrels of thiskind. "In sum," as JusticeBrennan remarked,"I have no doubt that,if any group of law studentswere asked to apply the principlesof Lemonto the question of legislativeprayer, they would nearlyunanimously find the practiceto be uncon-

16 REPRESENTATIONS stitutional."25A fascinatingaspect of the Chambersdecision, however,is that the majorityneither disagreed withthis assessment, nor attemptedto alter theLemon doctrine.In factit ignored Lemonaltogether, making no effortwhatever tojustify its decision by referenceto past precedents. Instead the Court, in an opinion writtenby ChiefJusticeWarren Burger and joined by fiveother Justices, focused its analysison the factthat the "opening of sessions of legislative and other deliberative bodies with prayer is deeply embedded in the historyand traditionof this country."The Court noted that most States of the Union have traditionallyopened theirlegislative sessions with prayer,and that Congress has continuouslyemployed chaplains to offerlegisla- tive prayer since the eighteenthcentury. Indeed, on 22 September 1789, three days before Congress approved the language of the FirstAmendment (and the EstablishmentClause) and sent it to the States for ratification,Congress enacted a statuteproviding for the paymentof congressionalchaplains.26 Althoughthe Court conceded that"standing alone, historicalpatterns cannot justifycontemporary violations of constitutionalguarantees," it concluded that the evidence in Chambers's case was different,for it definitelyestablished "not only ... what the draftsmenintended the EstablishmentClause to mean, but also ... how theythought that Clause applied to the practiceauthorized by the First Congress-their actions reveal theirintent." "Clearly," the Court concluded, "the men who wrote the FirstAmendment Religion Clauses did not view paid legislativechaplains and opening prayersas a violationof thatAmendment."27 The premise of the majority'sopinion is thus that the meaning of the Con- stitutionis betterascertained throughstrong evidence of the intentof the Fram- ers than through fidelityto past precedents and doctrine. The reason is apparentlythat the intentof the Framersbest embodies those "principles"which the "people" desired to instantiatein their Constitution.In the eyes of the majority,therefore, it is more importantthat the Constitutionbe interpretedin a manner which accuratelyexpresses these principlesthan thatit be interpreted in a manner which remains faithfulto the principleof staredecisis.28 The principle of staredecisis, moreover, is inconsistentwith a quite different method of constitutionalinterpretation. William Brennan, in a dissentjoined by one otherJustice, also gave only cursoryattention to the rules of Lemon.In fact he appeared to agree withthe majoritythat "the path of formaldoctrine. . . can only imperfectlycapture the nature and importanceof the issues at stake in this case."29But rather than focusingon the intentionsof the Framers of the First Amendment,Brennan offeredinstead an "account" of "the underlyingfunction of the EstablishmentClause" and of the relationshipbetween that functionand the practiceof legislativeprayer. According to Brennan, the EstablishmentClause embodies the twinprinci- ples of "separationbetween church and state"and "neutrality"as betweendiverse religions.These twoprinciples, in turn,serve four purposes. They guarantee "the

Theoriesof ConstitutionalInterpretation 17 individual rightto conscience" by ensuring that persons are not coerced to support (through taxes or otherwise)religious practiceswith which theydisagree; they"keep the statefrom interfering in the essentialautonomy of religiouslife"; "theyprevent the trivializationand degradationof religionby too close an attach- ment to the organs of government";and they"help assure that essentiallyreli- gious issues, preciselybecause of theirimportance and sensitivity,not become the occasion forbattle in the politicalarena."30 Brennan convincinglydemonstrated that Nebraska's authorizationof legislative prayer was inconsistentwith each of these four purposes. Indeed, as Brennan noted, the majoritysaid "almost nothing contraryto" this functional analysis,relying instead almostentirely on evidence of the historicalintent of the Framers.The majorityultimately differed from the dissent, therefore, neither on the application of doctrine nor on the functionof the EstablishmentClause, but rather on the relevance of evidence of original intent for constitutional interpretation. Brennan explicitlyrejected such evidence as definitiveof constitutional meaning, arguing that"the Constitutionis not a staticdocument whose meaning on every detail is fixed for all time by the life experience of the Framers." He contended that the Constitutionmust be understood instead as "a document meant to last forthe ages," the bearer of an "inherentadaptability" that could not be cabined by any "static and lifeless"meaning. His proposed analysis of the EstablishmentClause's "underlyingfunction" was meant to illustratehow courts could discern the contemporarysignificance of "the majesticgeneralities of the Bill of Rights."'3'His dissent pictured the Constitutionas a living,evolving entity, whose full meaning could be ascertained neitherby doctrinalprecedent nor by evidence of original intent.The dissent,therefore, was predicated upon yet a thirdform of constitutionalinterpretation. The outcome of ErnestChambers's lawsuit thus appears as a triangularstruc- ture,in whichthree distincttheories of interpretationcompete forcontrol of the Constitution.In one corner is a formof interpretationthat strives to implement the Constitutionthrough the articulationof explicitdoctrinal rules. In a second corner is a form of interpretationthat attemptsto construe the Constitutionto reflectthe original intentof its Framers.In yeta thirdcorner is a formof interpretationthat reads the Constitutionin a mannerdesigned to express the deepest contemporarypurposes of the people. Each of these three theoriesis immedi- atelyrecognizable and familiarto those who practiceconstitutional adjudication.

III

The purpose of constitutionaladjudication is to assess the constitutional validityof state actions,like the hiringof legislativechaplains. But courts

18 REPRESENTATIONS can achieve thispurpose only to the extentthey have the authorityto evaluate, in the name of the Constitution,the validity of otherwiseperfectly legal stateactions. Every act of constitutionalinterpretation invokes and depends upon this authority,and for this reason "constitutionalinterpretation is essentiallyabout the sources of authorityin American politicallife."32 What in factdistinguishes the three theories of interpretationdisplayed in Chambers-theoriesthat I shall respectivelycall "doctrinal,""historical," and "responsive"interpretation-is that each appeals to a differentconception of constitutionalauthority.

The authorityof law. There is, first,the authorityof the Constitutionas law. The Constitutioncontrols state actions because the Constitutionis the highest law, above all merelyquotidian state activity.The concept of the "constitutionas hard law, law writtenin virtuallycapital letters(LAW), law as meaning reliable law," has been termed "by far the most importantidea of the Constitution."33 Because "courtsare the mere instrumentsof the law,"34they are peculiarlyfitted to interpreta Constitutionwhose authoritylies in its characteras law. It is therefore no accident that in MarburyMarshall appealed preciselyto this image of constitutionalauthority in establishingthe institutionofjudicial review. If the Constitutionpredominates because it is law,its interpretationmust be constrainedby the values of the rule of law, which means that courts must con- strueit througha processof reasoningthat is replicable,that remains fairly stable, and thatis consistentlyapplied.35 In American adjudication the principleof stare decisishas been an essential component of the rule of law.36The principle is of particular importance on those occasions when constitutionaladjudication in- volvesvague textualreferents (like "equal protectionof the laws,"or "due process of law"), withregard to which there is "onlylimited evidence of exactlyhow the Framers intended the [text]to apply."37On these occasions the principleof stare decisisholds courts to a consistentand stable interpretationof Constitution. Withoutsuch consistencyand stability,it would be difficultto understand the Constitutionas having any existence as law. Suppose, for example, that the Supreme Court were to decide one day in decision A thatthe practiceof legislative prayer was constitutional,perhaps because in its view the Framers had so intended. Imagine that a month later the Court were to decide in decision B, without any reference to A, that the practice was unconstitutional,perhaps because the Court's view of the Framers'intent had changed. And assume that one monthlater the Court were to determinein decision C, withoutany reference to A or B, that the practice was partiallyconstitutional, perhaps because its reading of the historicalevidence had once again altered. In such circumstances state legislatorswould simplynot know what to do; theywould have no rule of law by which to decide whetheror not theycould constitutionallyhire legislative chaplains.38

Theoriesof Constitutional Interpretation 19 It is of course implausible to suppose that the Court would so swiftlyand radically change its assessment of the historicalevidence. But the question is whether this implausibilityderives from the unequivocal state of the historical record,or ratherfrom the Court'simplicit obligation to remain faithfulto itsown prior determinations.Since historicalevidence is often equivocal, particularly with respect to mattersof contemporaryconstitutional moment, it is the latter obligation, I would suggest,that plays an importantrole in enabling courts to create stable and predictablerules upon which persons can relyin the arrange- ment of their lives and institutions.39This obligation receives formal acknowl- edgement in the principleof staredecisis. This means that the principle of staredecisis often underlies the capacityof constitutionaladjudication to generate a systemof constitutionallaw. Thus the Chambersdecision creates a rule of constitutionallaw onlybecause of the implicit commitmentof the Court to act in the futurein waysthat are consistentwith the Chambersholding. Put another way, the legal implicationsof Chambersdepend upon the implicitand necessaryexpectation that the Court willin the futuretreat Chambersin a way thatit declined in Chambersto treatLemon.40 Of course the principle of staredecisis is an immenselyflexible instrument, allowing courts to treatprecedents on the one hand as the source of specificand binding formalrules,4' or on the other as an amorphous mass of materialto be rendered consistentthrough the virtueof "integrity."42What everyapplication of the principle requires, however,is thata court focus its analysison the doctrine which has emerged fromrelevant prior cases. The principleof staredecisis therefore creates a chain of cases, in whicheach decision is an interpretationof imme- diatelyprior decisions. Construingthe Constitutionin a manner thatis faithfulto itsauthority as law thus leads to what I shall call "doctrinal"interpretation. The implicationof doctrinalinterpretation is that the actual textof the Constitutionis remittedto one end of a growing line of precedents. Even if the very firstjudicial decision to interpretthe EstablishmentClause had concentratedits attention on the specific words of the Clause or the intentionsof its Framers,the practice of doctrinal interpretationwould require the second decision to focuschiefly on the meaning of the firstdecision, the thirddecision chieflyon the meaning of the second, and so forth.In thisprocess the textof the Constitutionrecedes until,as one promi- nent commentatorhas put it,it comes to seem "ratherlike ... a remote ancestor who came over on the Mayflower."43 The vast majorityof constitutionaldecisions rely primarilyupon doctrinal interpretation.Novices are often quite struck by the relative absence of the Constitutionfrom constitutionalopinions, which seem oriented instead toward specificdoctrinal "tests,"like the Lemontests, derived from priorjudicial decisions. But this should be no surprise if the most powerfuljustification for the Constitution'sauthority is that it is law, and the most defensiblejustification for

20 REPRESENTATIONS judicial review is that it is the peculiar province and duty of the courts to ex- pound the law.

The authorityof consent.If doctrinal interpretationrests on the equation of constitutionalauthority with law, what I shall call "historicalinterpretation" rests instead on the equation of constitutionalauthority with consent. The storyis simple and familiar.The Framersof the Constitutionproposed a compact to limit the power of government;the people signifiedtheir agreement to thatcompact by their ratificationof the Constitution,and that agreement is what gives the Constitutionits authority.The interpretationof the Constitutionshould therefore be designed to give effectto the termsof thatoriginal act of agreement. The storybehind historicalinterpretation has enormous resonance in a liberal societylike our own. It conceives of the Constitutionas binding in the same way that a promise is binding,as a single voluntaryact of willfulself-regulation. In interpretingsuch a Constitutioncourts can portraythemselves as merelythe passive enforcersof the democraticwill that "ordained and established"the Con- stitution.Thus, as formerAttorney General Edwin Meese III could observe, "A Jurisprudenceof Original Intention... reflectsa deeply rooted commitmentto the idea of democracy.The Constitutionrepresents the consentof the governed to the structuresand powers of the government.The Constitutionis the fundamentalwill of the people; thatis whyit is the fundamentallaw."44 Differentvariants of historicalinterpretation emphasize differentforms of evidence as probative of that original exercise of "fundamentalwill." Thus for some commentatorsthe constitutional"text" is a privileged form of evidence, because "the textis the intentionof the authorsor of the framers";45whereas for others the "relevantinquiry must focus on the publicunderstanding of the language when the Constitutionwas developed."46By farthe mostcommon formof historicalinterpretation, and the one used by Chief JusticeBurger in Chambers, regards the intentionsof the Framersas the best evidence of the agreementrep- resented by the Constitution.47 This form of historical interpretationhas become quite controversialin recent years, in part because some members of the resurgent Right have attemptedto use historicalinterpretation as a means of constrictingthe discretion of supposedly liberal judges. The notion is thatjudges will have less room to maneuver if theyare bound to the specificfactual intentions of the Framers.But this notion is a vulgar misinterpretationof the principlesof historicalinterpretation,as is elegantlyillustrated by an example suggestedby Paul Freund. Article I, Section 8, Clause 14 of the Constitutiongives to Congress the power "to make Rules for the Governmentand Regulation of the land and naval forces."It can be said with complete certaintythat no one in the eighteenthcentury had the intentto endow Congress withthe power to make rules for the regulationof an

Theoriesof ConstitutionalInterpretation 21 air force. But no reasonable person would conclude from this undisputed fact that Congress does not now have thispower.48 This is because the intentbehind the Clause would naturallybe understood as givingCongress the power to regulate the "military"or the "armed forces,"or some other such general concept. The point of Freund's example is that the intentof the Framers cannot be understood as the kind of simple historicalfact that resists interpretation. It must instead be conceived as a purpose which can be characterizedin termsthat are more or less general.49Once thismove is taken,however, historical interpretation assumes a flexibilityinimical to the politicalpurposes of the Right. Historicalinterpretation is a ratheruncommon phenomenon in modern constitutionaladjudication. In part this may be due to the logical and evidentiary difficultiesinvolved in the effortto unearth historical intentions. It is hard enough to ascertainthe intentionsof a livingindividual. It is harder stillto determine the intentionof a group of livingindividuals, like a legislatureor a Con- gress. The difficultyis compounded when the group of individuals is two centuriesremote in timeand the evidence of theirthoughts and purposes is scat- tered, fragmentary,ambiguous, and conflicting.And the task is made almost impossible when the relevantintentions pertain to questions which in all proba- bilitynever occurred to thatgroup of individualsand whichare meaningfulonly in lightof circumstancesthat would to thembe inconceivable. It is the rare case indeed that,like Chambers,seems to presentstrong evidence of original intentionon the precise question to be adjudicated. Even in such a case, as Brennan pointsout in his dissent,the logic of democraticconsent requires that the intentionsof those who ratifiedthe Constitutionbe controlling,rather than the intentionsof those who merelyproposed constitutionallanguage for popular adoption.50And, as Brennan cheerfullynotes, "'We know practically nothing about what went on in the state legislatures'during the process of rati- fyingthe Bill of Rights."'5' It is importantto understand,however, that these obstacles to historicalinterpretation,while formidable,are not necessarilyfatal. First, in any given case the available historicalevidence of intentmay be more or less compelling. Second, the nature of the evidence that will count as probative of intent may itselfbe entirelya matterof "generallyaccepted conventions,"52and hence shaped in a manner designed to ease the course of historicalinquiry. For example, historical interpretationnow focuses on the intentof the Constitution'sframers, rather than of its ratifiers,because the formerare by common conventiontaken to be conclusive of the latter.Similarly, The Federalist Papers are by common convention now presumed to constituteauthoritative (and convenient)evidence of the intent of the Framers, although any historiancould easily demonstratethe empirical inadequacy of the presumption.This tension between the kind of evidence of intentnecessary to legitimatepolitical authority and the kind of evidence of intent necessary to persuade professional historicaljudgment illustratesthe truthof

22 REPRESENTATIONS Nietzsche's remark that "history,so far as it serves life, serves an unhistorical power."53Third, historicalinterpretation need not focus on the intentionsof the Framersor Ratifiersat all, but may attemptinstead to ascertainconsent through inquiries aimed at altogetherdifferent kinds of evidence.54 Ultimately,therefore, the infrequencyof historicalinterpretation in contemporary constitutionalinterpretation may stem less from evidentiarydifficulties than fromthe intrinsiclimitations of any theoryof interpretationresting on the authorityof consent. If thatauthority is understood to arise at the momentof the Constitution'sratification, then in fact no living person has "consented" to the FirstAmendment, or indeed to most of the Constitution.Why, it may be asked, should the consentof our predecessorshave authorityover us?55When faced with thisdifficulty, consent theoristsoften resort to notionsof "implied"or "tacit"consent, notions that rapidlydrain the concept of consentof its abilityto legitimate authority.These notions have a stopgap,jerry-built quality that renders them ultimatelyunsatisfactory.56 In fact Hanna Pitkinhas demonstratedthat princi- pled consenttheorists like Locke orJoseph Tussman,when seriouslypressed with the absence of actual consent,transform the issue into a question of hypothetical consent. "True authority"thus "emerges as being one to which [persons] oughtto consent,quite apart fromwhether they have done so."57 A similartransformation is visiblein the arena of constitutionalinterpretation. Thus it is-said that even if the "legitimacy"of the Constitutioncannot rest upon a prior act of consent,it may neverthelessbe founded on the factthat persons now ought to view it as "a good Constitutionand thereforeone worthyof continuing support."58This is essentiallythe form of constitutionalauthority appealed to byJustice Brennan in his dissentin Chambers.Because interpretation founded on thisform of authoritymust ultimatelybe accountable to contempo- raryconcepts of value, I shall call it "responsiveinterpretation."

The authorityof ethos. The classic statementof responsiveinterpretation is by Oliver Wendell Holmes:

When we are dealing withwords that are also a constitutentact, like the Constitutionof the United States,we must realize thatthey have called into life a being the development of which could not have been foreseen completelyby the most giftedof its begetters.It was enough forthem to realize or to hope thatthey had created an organism; it has taken a centuryand has cost theirsuccessors much sweat and blood to prove thatthey created a nation. The case before us must be considered in the lightof our whole experience and not merelyof what was said a hundred yearsago.59

For Holmes the authorityof the Constitutionis not exhausted in a singlecreative act of consent,but continues to inhere in the national "being" thatthe Constitu- tion has "called into life." Hence the nature of that authoritycan be captured neitherby rules laid down injudicial precedents,nor bynotions of originalinten-

Theories of ConstitutionalInterpretation 23 tion. The authoritymust rather be conceived as flowingfrom the "whole experience" of nationhood. That experience legitimatelyclaims our allegiance because we are necessarilyincluded withinit, and hence responsibleboth forwhat it has been and what it mightbecome. What is authoritativeis thus neithermore nor less than our common commitmentto the flourishingof the mutual enterprise of nationhood. The radical and paradoxical implicationof thisperspective is thatthe Consti- tution explicitlyloses its character as a specificdocument or a discrete text. It becomes instead, as Karl Llewellyn bluntly put it, a "going Constitution,"a "workingConstitution" which has a contentthat "is in good part utterlyextra- Documentary,"and which representsthe 'fundamentalframework" of "the gov- ernmentalmachine."60 In thisway the Constitutionis transformedinto what Kant mightcall the "regulative"idea of the enterpriseof constitutionaladjudication, the "imaginaryfocus fromwhich the concepts"of thatenterprise "seem to pro- ceed, even though there is nothingknowable at thatfocus."'6' The Constitutionas a regulativeidea definesthe telosand shape of constitutional interpretation:it demands a continualeffort to articulatethe authorityof our "fundamentalnature as a people" and hence concomitantlyto summon "us to our powers as co-foundersand to our responsibilities,"in the full knowledge that "how we are able to constituteourselves is profoundlytied to how we are already constitutedby our own distinctivehistory."62 In this sense responsive interpretationrequires judges to viewthe Constitutionas a formof whatPhilippe Nonet and Philip Selznick have called "responsivelaw," law that submitsto "the sovereigntyof purpose" byfunctioning "as a facilitatorof response to social needs and aspirations."63 There is a tension,however, between using law to implementa successionof merelypresent purposes, and using law to sustain the "general ends"64constitu- tive of our "fundamentalframework" of governance.The authorityof constitutional law inheres only in the latter,for it alone claims fidelityto the "whole experience" that has comprised "our distinctivehistory." To maintain its legitimacy,therefore, responsive interpretationmust be oriented toward the kind of general ends that have been closely linked over the long run to an historical instantiationof national identity.But such ends can provide the basis for adjudication only if theycan also "be made objectiveenough and authoritativeenough to control adaptive rule making."65In this regard JusticeBrennan's dissent in Chambersis paradigmatic. His effortto inquire into "the underlyingfunction of the EstablishmentClause" is specificenough to engender legal consequences, but general enough to express a deep vision of the secular nature of the American state. Although the theoryof responsiveinterpretation sounds exotic, responsive interpretationis in factrather common injudicial opinions (certainlymuch more so than historicalinterpretation). In the area of the FirstAmendment's guarantee

24 REPRESENTATIONS of freedomof speech, forexample, the outcome of cases depends upon whether judges perceive the purpose of thatfreedom to be thatof assuringan "unfettered interchangeof ideas forthe bringingabout of politicaland social changes desired by the people,"66or instead thatof fostering"individual liberty and dignity."67In the area of the constitutionalright to privacy,the outcome of cases depends upon whetherjudges conceive the purpose of the Due Process Clause to be that of safeguardingthose "libertiesthat are 'deeply rooted in thisNation's historyand tradition,"68 or instead thatof protectingintimate decisions of a kind that"define one's identity."69 Responsive interpretationis in fact a vast umbrella shelteringa myriad of differentapproaches to the Constitution.It need not have the specificallyliberal cast that is visible in Brennan's dissentin Chambers.It can be used by those who stressthe constitutionalpriority of democraticdecision making and hence who emphasize judicial caution and prudence, as well as by those who stressthe con- stitutionalprimacy of individualrights. It has commonlybeen used byjudges and scholars of both the Rightand the Left. Responsive interpretationdoes, however,have an importantvulnerability. It containswithin it no particularlypersuasive response to the counter-majoritarian difficulty.If doctrinalinterpretation portrays courts as merelythe instrumentsof the law, if historicalinterpretation portrays courts as merelythe instrumentsof an original democraticwill, responsive interpretation portrays courts instead as arbitersof the fundamentalcharacter and objectivesof the nation. And why,it maybe asked, should courtsbe entrustedto act in thatcapacity, particularly when in doing so theyset aside alternativevisions of the national characterand objec- tivespropounded by the democraticallyelected branches of government? One possible response to this question, which is increasinglyvisible in the literature,is to stressHans-Georg Gadamer's theorythat all interpretationnec- essarily involves a conversationbetween a reader and a text, and so effectsa mergerbetween a textand a reader's own purposes and perspectives.Even if this theory is accepted, however,it does not repair the vulnerabilityof responsive interpretation.This is because the theory'sthrust is entirelyto describe the con- ditions that make reading possible, and hence it can offerno guidance to the judge who, having determined the original intentof the Framers to the best of his ability(and thereforein a manner necessarilyinfluenced by his own perspective),must decide whetherto be bound by thatdetermination (like ChiefJustice Burger in Chambers),or instead to set it aside in favorof a more self-consciously responsiveapproach (likeJustice Brennan in Chambers).The implicationsof her- meneutic insights for theories of constitutionalinterpretation are thus quite modest,a factthat is recognized by its more sophisticatedproponents. The acknowledgmentof these limitationsis, forexample, the point of David Hoy's distinctionbetween the "application"of a text,which is "a prior cognitive operation where we firstfind the text to be saying somethingto us," and the

Theoriesof ConstitutionalInterpretation 25 "appropriation"of a text,which is "a willful,self-conscious act": "Applicationis not an option and is not subjective.But appropriation(e.g., makingthe textseem more ratherthan less relevant)is an optional strategy,such thatit can be used or avoided."70Responsive interpretationis a matterof appropriation,and as such cannot be defended by the hermeneuticturn.

We are thus in a positionto connecteach of the three theoriesof constitutionalinterpretation displayed in Chambersto a differentconception of constitutionalauthority. Doctrinal interpretation,which follows the principleof stare decisis,invokes the authorityof the Constitutionas law. Historicalinterpretation, whichimplements an originalact of will,is validated by the authorityof the Con- stitutionas consent.Responsive interpretation,which engages in an ongoing process of national self-definition,appeals to the authorityof the Constitutionas, for lack of a betterword, ethos. I will not make the strongclaim thatthese are the only possible conceptions of constitutionalauthority (and hence the only possible theoriesof constitutional interpretation),but I willmake the more modestdescriptive claim thatthese three conceptions dominate the actual practiceof constitutionaladjudication. All the manymethods of constitutionalinterpretation that have proliferatedin the legal literatureof the past decade, rangingfrom those thatstress the values of demo- craticparticipation to those thatstress the values of autonomous individualism,7' ultimatelyrest upon one or another of these three conceptionsof constitutional authority. Each of these formsof authorityis by itselfincomplete and incapable of sus- taining the enterpriseof constitutionaladjudication. The authorityof the Con- stitutionas law, for example, requires the authorityof eitherconsent or ethos in order to initiatea chain of precedents.The authorityof consentand thatof ethos, on the other hand, each require doctrinalelaboration in order to find embodi- mentas law. The authorityof consentanchors constitutionalinterpretation in the democratic principles that are necessary and desirable in a country like the United States, while the authorityof ethos offersan indispensable flexibilityin the interpretationof a document designed to last for the lifetimeof the nation. Yet if these three formsof authorityare on one level systematicallyinterde- pendent, theyare at a differentlevel potentiallydivergent and incompatible.72As the Chambersdecision illustrates,a court in a constitutionalcase may be called upon to decide whichform of authorityshould governits efforts, and itsdecision may determine the outcome of the case. Because this decision is most often understood to depend upon an antecedentcharacterization of the Constitution

26 REPRESENTATIONS (as, e.g., "law,""compact," or "ethos"),arguments about theoriesof interpretation commonlymodulate into argumentsabout the inherent"nature" of the Consti- tution. To the extent that the three theoriesof constitutionalinterpretation are perceived as incompatible,it is due to the factthat they are seen as flowingfrom incompatiblenotions of the Constitutionitself. But thisvision of constitutionalauthority is fundamentallyflawed, for it pos- tulates a form of constitutionalauthority that is external to the processes of its own interpretation.It imagines thatthe nature of the Constitutioncan somehow be determinedin a mannerwhich is independentof the practiceof constitutional interpretation,and thatthe practiceis thereforelogically controlled by thisante- cedent determinationof constitutionalauthority.73 But a betteraccount of the practice of constitutionalinterpretation would situate constitutionalauthority instead in the relationshipobtaining between participantsin thatpractice and the Constitution. Paradoxically, then, constitutionalinterpretation is not merely about the Constitutionbut about the more radical and profound question of how we stand in connectionto the Constitution.

Thenature of the authority of law. If we ask, forexample, whatit means to defer to the authorityof the Constitutionas law, the answer is that this authority embodies the values of stability,predictability, and reliance which are necessary to the legitimacyof any modernlegal system.Not onlyare thesevalues themselves important,but theyare also the means by whichthe law orders behavior so as to achievejustice and other desired objectives.The authorityof the Constitutionas law flowsprecisely from the acknowledgmentof these values. Once thispoint is made clear,however, it is also evidentthat these values, no matterhow important,may or maynot be compellingin particularcircumstances. The values of the rule of law are mostpressing when thereis agreementthat the law is generallyjust and otherwisefulfilling its proper purposes. In such circumstances doctrinal interpretationand the principle of staredecisis hold the law steady on its course. But if there is disagreementabout thejustice of the law, or about its purposes, or about its effectivenessin achieving those purposes, then the balance can begin to tip away fromthe values of stabilityand predictability.74 At a certain point, when dissatisfactionwith the statusquo reaches a sufficient magnitude,we can expect to see the doctrinalchain snapped.75 This means, however,that the authorityof the Constitutionas law does not stand outside the processes of constitutionalinterpretation, like an axiom in a geometricalproof, but is ratherimplicated within that very process. In any spe- cificcase we may question whetherthat authority is compellingenough to mandate a particularresult. Thus it is not the antecedent"nature" of the Constitution thatrequires doctrinalinterpretation, but ratherthe decision to recognizeand be

Theoriesof ConstitutionalInterpretation 27 bound by the values embodied in the authorityof the Constitutionas law. By acknowledgingthese values we create a certainrelationship to the Constitution, one in which the authorityof the rule of law becomes visibleand pressing. In the American legal systemthis authority appears both flexibleand inevi- table. It is not disabled even if in particularcases we deny its mandate and break with the principle of staredecisis. That is because when the chain of doctrine is broken and precedent is eitherexplicitly or effectivelyoverruled, a new decision must be announced, and for that decision itselfto have any effect,it must be craftedin the formof a rule of law thatwill be respected according to the principle of staredecisis. This means thatdoctrinal interpretation is presupposed even in the momentsof its repudiation. Thus although the practiceof constitutional adjudication at times may and sometimesmust depart fromdoctrinal interpretation, it is a form of interpretationto which the practice will also inevitably return.

Thesymmetrical nature of the authority of consent and theauthority of ethos. If doctrinalinterpretation views the Constitutiononly dimlyat one end of a long cor- ridor of precedents, historicaland responsive interpretationeach confrontthe Constitution,so to speak, face to face. The directnessof this inquiryliberates courts fromthe chains of doctrine,and empowersthem to alter and amend precedents. It also empowers them to uncover and articulatesubstantive constitutional values. For historicalinterpretation, this power restson a court'sclaim to speak withthe authorityof an originalact of consent.For responsiveinterpretation,this power restson a court'sclaim to speak withthe authorityof our deepest national identityand commitments.Although these claims appear on theirsur- face to be very different,as differentas Burger's majorityopinion in Chambers from Brennan's dissent, in fact they each share an underlying structural similarity. The authorityof consentrests on the capacityof the individualvoluntarily to assume obligations.Absent special circumstancesto the contrary,a person's con- tractsare viewed as binding and authoritative.This fact has importantconse- quences forconstitutional interpretation. Imagine the dismayyou would feel,for example, if you were to have worked for and achieved the ratificationof a constitutionalamendment, say the Equal RightsAmendment, only to have it interpreted by a court in a manner flatlycontrary to your intentand to the intentof the amendment'ssupporters and ratifiers.In such circumstancesyou would want ajudge to subordinateher personal perspectivesand faithfullyto implementthe act of consentby virtueof which the amendmenthad become authoritative.You would no doubt experience ajudge's departure fromthis duty as a betrayal. The appeal of historicalinterpretation trades on thisexperience of betrayal. It is importantto understand, however,that this experience does not depend

28 REPRESENTATIONS upon anythingso simple as the physicalcasting of a vote. Constitutionalamend- mentsare ratified,not bygeneral elections,but bystate legislatures or special state conventions.Your experience of betrayalwould depend, not upon whetheryou personally were a member of one of these special ratifyingbodies, but rather upon your identificationwith those who had physicallysignified their consent. What would count is your sense that the members of the state legislaturesor conventionswho had actually assented to the Equal RightsAmendment spoke "for"you. This same identificationcan extend in time as well as in space. Thus when confrontedwith constitutional provisions that are a centuryor more old, historical interpretationcan be understood implicitlyto assertan identification,a com- munityof interest,with the framersor ratifiersof those provisions. "Their" consent,so the implicitassertion would go, is "our" consent; theyspoke "for"us. It followsthat the authorityof historicalinterpretation will in significantmeasure depend upon the persuasivenessof thatassertion. That is whyin ChambersChief JusticeBurger offersan extended discussionof "the unambiguous and unbroken historyof more than two hundred years,"which he claims establishes"that the practiceof opening legislativesessions with prayer has become part of the fabric of our society."76The power of Burger's opinion restsin the end upon a claimed continuityof identificationwith those who had proposed and ratifiedthe First Amendment. This claim, however,is neithermore nor less than a characterizationof the national ethos. It is a claim about our national identityand history.Thus while the debate between majorityand dissent in Chamberscan at one level be seen as strugglebetween historicaland responsiveinterpretation, it can at a deeper level be understood as a disagreementabout whetherwe can now identifywith our ancestors,or whetherwe have over the centuriesbecome so differentfrom them, so much more secular or diverse,that we have lost any persuasive identification withthe consent of those who ratifiedthe FirstAmendment.77 This deep symmetrybetween historicaland responsiveinterpretation stems fromthe factthat both ultimatelyflow from the authorityof a willthat affirms its own identity.78Responsive interpretationmakes thisauthority explicit, because it openly affirmsresponsibility for the natureof our nationalethos. While historical interpretationseemingly presents itself as a self-denyingsubmission to the identityof past ratifiers,closer analysisreveals thatthat identity is authoritativeonly insofar as we can be persuaded to adopt it as our own.79In either case, the authorityof the Constitutionceases to stand apart fromthe processes of itsinter- pretation.That authoritydoes not flowfrom the antecedentnature of the Con- stitution,but rather from the particular relationshipwe have forged with the Constitution. In this regard, however,responsive interpretationis unique, for it alone explicitlythematizes this relational nature of constitutionalauthority. Both his-

Theoriesof ConstitutionalInterpretation 29 torical and doctrinal interpretationpurport to submit to a Constitutionwhose authorityis independent and fixed,either in the preexistingconsent of the ratifiers or in the preexistingrules of controllingprecedents. Although this sub- mission is illusory,it is an illusion capable of disarmingdissent. Responsive interpretation,however, disavows this illusion, and franklylocates constitutional authorityin the relationshipbetween the Constitutionand its interpreters.As a consequence responsiveinterpretation generates an intenseand singularkind of politicaldynamics. A good example is Brown v. Board ofEducation.80 The decision did not turnon what the ratifiersof the FourteenthAmendment thought,8'nor on what the Court had previouslyheld in Plessyv. Ferguson.82 Instead the ideal of racialequality had become so pressingto the Court thatthere was no alternativebut to interpret the Equal ProtectionClause in lightof its imperatives.But preciselybecause this interpretationrested upon an open avowal of a nationalideal, Brownrepresented a courageous gamble. The Court's embrace of the value of racial equalitycould have been a misreading of the national ethos; indeed the Court's gamble was intenselycontroversial and came close to failingprecisely because thatethos was in factso divided.83 By refusingto interpretthe Constitutionas if it were a source of external compulsion,either of past precedentor of past consent,responsive interpretation always places a court in such an exposed position,purporting to speak for the fundamentalethos of the contemporarycommunity, but justified in the end only by the wisdom of itsown insight.Under conditionsof culturaldivision, that position can be the platformfor a special formof leadership (as in Brown),or it can be the cause of the mostunhappy formof vulnerability(as in Roe v. Wade). Roe, which at the time of its decision stood withoutsignificant historical or precedentialsupport,84 illustrates the structuralvulnerability of responsiveinter- pretationto the charge thatit articulates values thatare merelylocal and partisan, ratherthan general and trulyconstitutive of the nation.The charge is unlikelyto surfacewhen thereis culturalconsensus, because the invocationof contemporary values will under such circumstancesbe unobtrusiveand perhaps even unno- ticed. But in the absence of consensus the frankambition of responsiveinterpretation to "speak for" the characterof the nation,while expressiveof the outlook of some, will necessarilyconstitute a hegemonic impositionupon others.85Thus the enterprise of responsive interpretationcan become the locus of an overt strugglefor the definitionof national identity.In the legal academy responsive interpretationhas been profoundlycontroversial because of the unease gener- ated by perceivedjudicial participationin such a struggle. Paradoxically,however, the root cause of this unease is preciselyresponsive interpretation'sexplicit thematizationof the relational nature of constitutional authority,a formof authoritythat it in factshares withboth historicaland doctrinal interpretation.

30 REPRESENTATIONS The inevitabilityof responsive interpretation. Responsive interpretation is in some respectssimilar to what in the contemporarylegal literatureis called "noninterpretivism,"86which can roughlybe defined as that formof constitutionalinterpretation which seeks "the principal stuffof constitutionaljudgment in one's renditionof society'sfundamental values ratherthan in the document'sbroader themes."87Noninterpretivism, and by extensionresponsive interpretation, is fre- quentlyattacked as breakingfaith with a judge's obligationto interpretthe Con- stitutionrather than to enact her own desires. Understood in a psychologicalsense, the attackis clearlyjustified. If a judge believes thatthe Constitutionmeans X, but thejudge decides Y because she pre- fersY, thejudge's decision is presumptivelyillegitimate. But thisframing of the issue is ultimatelytrivial, for it proceeds on an assumption of bad faith,and it prejudges the criticalquestion, whichis the nature of thatConstitution to which the judge should maintainfidelity. If noninterpretivismis defined as rendering judgment upon the basis of extraconstitutionalfactors, then it will of course be vulnerable, but only in an uninterestingand merelystipulative sense. Properly understood, however, responsive interpretationavoids this vulnerabilityby including the additional claim thatour "fundamentalnature as a people" is part of the legitimateauthority of the Constitution. One objection to responsiveinterpretation, therefore, is thatit mistakesthe "root premise"of American constitutionalism,which is "thatthe Supreme Court, like the other branches of government,is constrained by the writtenconstitution."88The point is thatresponsive interpretation, which explicitly dissolves the Constitutionas a specificwritten text, rests on an unacceptable notionof the Con- stitution.The forceof thisobjection, which is considerable,derives fromthe cir- cumstance in which the words of the Constitutionappear to speak plainlyto us. Recall the case of the thirdCalifornia senator, which a court could settlemerely by reading the textof the document. In such a case it seems as if the document itselfwere authoritative,as if meaning flowednaturally from that handwritten, hand-signed parchment kept under glass in the National Archives.89It would appear to followthat any theoryof interpretationwhich abandons thatdocument is illegitimate. This reasoning, however,proves far too much. It is true thatwhen the document's meaning is unproblematicwe feel constrainedto regard its language as authoritativewithout further inquiry. But when for whateverreason the document'smeaning does seem problematic,we are necessarilyforced outside the text in search of some authorityto guide our interpretationof the text.Thus every theoryof constitutionalinterpretation is at some level inconsistentwith the notion of a narrowfidelity to a writtendocument. Doctrinalinterpretation, for example, which is the sinequa non of constitutionaladjudication, applies not the words of the document, but legal rules thatjudges have subsequentlycreated. Most con- stitutionalcases are decided on the basis of doctrinal"tests" that have verylittle

Theories of ConstitutionalInterpretation 31 to do withthe textof the parchmentwhich resides in the National Archives.Even historicalinterpretation looks for authoritynot to the textof the writtendocument,but ratherto the consentof thosewho agreed to it.The charge thatresponsive interpretationabandons the writtendocument, therefore,is an accusation thatwould disqualifyvirtually all formsof constitutionalinterpretation. A second objection to responsiveinterpretation, however, is thatit abandons the document in a particularlyunacceptable way. Historical interpretation focuses on an original act of consent because that consent "points toward" the document and illuminatesits specificmeaning. Doctrinalinterpretation, it might be said, focuses on rules of precedentbecause such rules also "point toward"the document and are attemptsto elucidate its meaning. Responsive interpretation, on the other hand, turns away from the document altogetherin an effortto uncover presentvalues. This objectioncaptures what I take to be a major animus of the contemporary debate, and for thatreason it needs to be carefullyparsed. It is true thatbecause historicalinterpretation looks to the consentof the ratifiers,the historicaldocu- ment actually ratifiedis central to the interpretativeenterprise. But doctrinal interpretationcan be said to "pointtoward" that document only in the mostatten- uated metaphoricalsense, a sense in whichit is equally true to say thatresponsive interpretation"points toward"the document. Responsive interpretationrests on theclaim thatthe Constitutionis not "static and lifeless,"to use Brennan's words in Chambers.Instead, as Holmes put it, the Constitutionis understood as having "called into life a being" that, like any "organism,"must grow and develop on the basis of its "experience."90Thus the ambitionand challenge of responsiveinterpretation is to determinewhich aspects of our contemporaryethos maybe regarded as legitimate"growth from the seeds which the fathersplanted," and hence as bearing "the essentialcontent and the spiritof the Constitution."9'Only these aspects of the national ethos are geneti- callyrelated to the document and thusmay properly form the basis forresponsive interpretation.In thissense responsiveinterpretation does indeed "point (back- ward) toward" the document, in at least as strong a metaphoric sense as does doctrinalinterpretation. Admittedlythe organic metaphor that underlies this account of responsive interpretationis highlyproblematic. It is importantto understand,however, that responsive interpretationcould equally well rest upon other and perhaps more convincing metaphors. It could invoke, for example, the image of an evolving "tradition"that is constitutiveof culturalmeaning.92 Or it could adopt the socio- logical language of communitarianism,as in this passage from Philip Selznick: A socialcontract is a constitutivecontract. Its functionis to createa politicalcommunity by foundingthe legitimacy of governmenton theconsent of thegoverned. Once thecom- munityis formedit has a logicand a dynamicof its own. Even the fundamental obligations of governmentand citizenry-obligationsof loyalty,self-restraint, and care-flow from

32 REPRESENTATIONS the nature of the communityand of its historicalpremises, not from the terms of an agreement.93

Each of these metaphors can be used to describe a national ethos that both changes over timeand yetalso manages to retaina distinctiveidentity. Each por- traysa national ethos in whichwe are implicated,and to whichwe are therefore responsible.Each is thereforecapable of sustainingthe enterpriseof responsive interpretation. In these heady days of postmodernism,of course, it is easy enough to deny the truthof all these metaphors,and to repudiate the veryexistence of any over- arching national ethos. The politicalconsequences of such a denial, however,are grim. They were in factfirst systematically articulated by Thomas Hobbes, and today the premisesof his work remain visiblein the writingsof those influenced byeconomics and public choice theory.A clear example can be found in the views of a constitutionalscholar like RobertBork, who argues thatthere is no such thing as a distinctivenational ethos, but only a vast collection of individual preferences.94It followsfrom this perspective that any attemptto interpretthe Consti- tutionon the basis of the authorityof a nationalethos willnecessarily degenerate into an unwarrantedimposition of privatejudicial preferences.95 Two preliminarypoints should be made about this perspective. First,it is inconsistentwith historical interpretation, with which it is sometimesassociated. Historical interpretationrests on the implicitassertion that the national ethos supports an identificationwith the ratifiersof the Constitution.But if there are only discreteindividual preferences, and if the nation does not have any national ethos, there is no reason whateverwhy the consent of those long dead should hold any particularauthority for the presentgeneration. Second, as the example of Hobbes illustrates,this perspectivehas difficultyoffering a plausible account of political authorityas anythingother than a collectiveneed for forcefuland clear rules of conduct to save individuals fromthe destructiveconsequences of their own egoism. But this form of authority,stressing as it does the values of continuityand predictability,is compatibleonly withthe authorityof the Consti- tutionas law,which is to say withdoctrinal interpretation. The actual implication of thisperspective, therefore, is thatthe principleof staredecisis should hold until interruptedby contemporaneous processes of constitutionalamendment. The consequences of denyingthe existenceof a national ethos are thus dra- matic,far-reaching, and singularlyunattractive. It transformsthe overriding con- cern of constitutionaladjudication into the maintenanceof rules (any rules), for only such rules stand between us and a chaos of individual desires. Because the primaryobjective of these rules willbe the preservationof order,those subject to constitutionalrules will necessarilybe reduced "to mere objects of the adminis- tered life."96The Constitutionis thusultimately converted into a formof "repres- sive law" that"gives shortshrift to the interestsof the governed."97

Theoriesof ConstitutionalInterpretation 33 This transformationis relevantto an assessmentof the position of scholars like Bork. Although the existenceor absence of a national ethos appears at first blush to be an empiricalquestion thatis independentof the perspectiveof a court, in fact mattersare not so simple. As the example of Brownv. Board ofEducation illustrates,a courtcan, throughthe eloquent articulationof public ideals, actually help to solidifya national ethos. The nationalethos to whichresponsive interpretation appeals, in other words, may in significantways be affectedby the very practice of responsive interpretation.The question facinga court, therefore,is whetherit should interpretthe Constitutionin waysthat may express or establish a national ethos,or whetherit should do so in waysthat may confirm its absence. I thinkthis question answersitself, which is whyconstitutional interpretation has never at any time proceeded on Hobbesian premises. There is, however,yet a fourthobjection to responsive interpretation,one whichexerts considerably more influencethan the Hobbesian perspective.It does not deny that the nation has an ethos which formsan importantcomponent of its public life,but it contends thatit is inappropriatefor judges to appeal to that ethos as a formof constitutionalauthority, because the conservationand articu- lation of that ethos should be placed in the hands of democraticallyelected offi- cials rather thanjudges. The objection,in other words, restson an institutional analysis of how courts ought to functionin a democracy.It is of course on pre- ciselysuch institutionalconsiderations that the counter-majoritariandifficulty is ultimatelyfounded. The stubbornpersistence of the difficultysuggests the presence of powerfultruths that cannot be brushed aside. They are, however,only partial truths.If the Constitutionis not to degenerate into merelyrepressive law, authoritative only because of the need for clear and predictable rules, courts interpretingthe Constitutionmust be allowed to speak from the authorityof a national ethos, in the formof either historicalor responsiveinterpretation. Taken to itslogical conclusion,therefore, the counter- majoritariandifficulty leads to exactlythe same unacceptable vision of constitutional law as that which flowsfrom overtly Hobbesian premises.98But this consequence is unacceptable to proponentsof thecounter-majoritarian difficulty, for the institutionalconsiderations by which they seek to circumscribejudicial power are themselvesbased on a particularaccount of the nationalethos, one thatchar- acteristicallystresses the importanceof majoritywill in the formof government created by the Constitution.99Proponents of the counter-majoritariandifficulty are thus torn between their account of appropriate institutionalprinciples and the factthat these principles,if fullyimplemented, would preclude judges from appealing to the verynational ethos fromwhich the principlesflow. Institutionalobjections to responsive interpretationare consequentlyriven by internaltensions. For this veryreason, however,institutional objections have rarelyif ever implied a simple repudiationof responsiveinterpretation. Instead theyhave characteristicallygenerated counsels of caution, urgent recommenda-

34 REPRESENTATIONS tionsthat responsive interpretation be used onlysparingly and in waysconsonant withthe underlyingconception of the nationalethos upon whichthe institutional objections are themselvesbased. They have led, in other words, to forms of responsiveinterpretation based upon a particularunderstanding of the national ethos as founded upon majoritarianprinciples.'00

The fact that identicaljudges use differenttheories of constitutional interpretationin differentcases is often used as evidence of the unprincipled nature of constitutionallaw. And, indeed, ifthe choice of an interpretativetheory depended on the nature of the Constitution,and ifthat nature were antecedently and externallygiven, it would be difficultto condone the ways in whichjudges actuallyuse interpretativetheories. But if,as I have argued, constitutionalinter- pretationdepends instead upon a relationalconcept of constitutionalauthority, judges can legitimatelyselect a specificinterpretative theory in lightof the cir- cumstancesof a particularcase. Thus a court can justifiablyuse historicalinterpretation with respect to an issue in a case if it believes thatthe national ethos supportsan identificationwith a past act of consent relevantto that issue. But it can justifiablyuse responsive interpretationif it can discernwith respect to thatissue the presence of a national ethos thatin a pertinentway historically embodies the essentialcontent and spirit of the Constitution,and thatprecludes identificationwith any past act of consent. Hence the choice between historicaland responsive interpretationcan turn on an appraisal of the national ethos. The selectionof doctrinalinterpretation entails a differentkind of appraisal, one thatrequires a court to determinewhether the values of the rule of law out- weigh the inadequacy of controllingprecedents. An importantreason why precedents maybe inadequate is thatthey are inconsistentwith the interpretationof the Constitutionrequired by the national ethos, either in the formof historical or responsiveinterpretation. The strikingof thisbalance betweenthe rule of law and the national ethos is both necessaryand legitimate. Thus the selectionof a specifictheory of constitutionalinterpretation for a particular case can be justified in the same way that any legal decision can be justified.Justification flows not fromlogical compulsionbut ratherfrom the prin- cipled application of pertinentconsiderations. Constitutional adjudication, like all law, is in thisway revealed as balanced on the human facultyof judgment. As in all human endeavor, pertinentconsiderations may be more or less compelling, and consequentlythe abilityto exercisejudgment more or less sustained. Nevertheless,the patternofjudgment in constitutionallaw can reveal a good deal about the nature of fundamentalauthority in our democraticstate. It sug-

Theoriesof ConstitutionalInterpretation 35 gests, for example, that visions of the national ethos, and hence of a "humanly meaningfulauthority,'' are at the core of our practiceof constitutionaladjudication. This is encouraging news to set against the viewof those who, likeJurgen Habermas and others,perceive the tidalcurrent of thiscentury as flowingtoward "undeviating organization,"'102 with its concomitantconditions of bureaucracy, alienation,deracination, and instrumentalrationality. But it is also cause forcon- cern if,as appears increasinglylikely to be the case for many of us, the vision of national ethos authoritativelyenacted by the Supreme Court is contraryto our own. Our consolation in such circumstancesis the strengththat Claude Lefort identifieswith modern democracy: the ever-presentpossibility that our protests willcreate a reconstitutedpolitical perspective that will in turnalter the character of futurejudicial appointments. But thatpossibility, of course, simplypulls ErnestChambers round fullcircle, back to his original effortsto convince his fellowlegislators of the deep imperti- nence of legislativeprayer.

Notes

1. Claude Lefort,Democracy and PoliticalTheory, trans. David Macey (Minneapolis, 1988), 39. 2. Testimony of Ernest Chambers, Marsh v. Chambers, 463 U.S. 783 (1983), joint appendix at 20, 23-24, 27. 3. Testimonyof Robert E. Palmer,ibid. at 40-41, 45, 51, 83, 89; exhibit1, 1975 Prayer Book, 4 April 1975, ibid. at 96; exhibit2, 1977-78 PrayerBook, 7 February 1977, ibid. at 98. 4. Although the clause speaks only of Congress, it has been held to be binding on the statesby virtue of the FourteenthAmendment. 5. 504 F. Supp. 585 (D. Neb. 1980). 6. 675 F. 2nd 228 (8th Cir. 1982). 7. I stressthe phenomenological characterof thispoint. It is of course quite plausible to contend that all reading is necessarilyactive, and hence "interpretative."But not all reading requires a reader self-consciouslyto inquire into the meaning of a text. From a phenomenological point of view,therefore, some reading does not require thatthe process of interpretinga textbe thematized. 8. United States v. Butler, 297 U.S. 1, 62 (1936). 9. It is necessaryat this point to distinguishbetween textualismas a putative"theory" of interpretation,designed to reveal the meaning of an uncertain text, and textualism as a rule of evidence or priority,which is designed either to exclude from considerationdata frombeyond the four corners of the document or else to assign to the language of the textpriority over such data. Textualismas a rule of evidence or prioritywould followfrom, and presumablybe justifiedby, an anteriortheory of interpretation. 10. On the relationship between interpretationand situations where "meaning is

36 REPRESENTATIONS doubtful," see Marcelo Dascal and Jerzy Wroblewski,"Transparency and Doubt: Understanding and Interpretationin Pragmaticsand in Law," Law and Philosophy7 (1988): 203-24. It is clear, as Dascal and Wroblewskipoint out, that the distinction between meaning that is plain, that "fitsthe case under considerationdirectly and unproblematically,as a glove to a hand," and meaning thatis questionable is not one thatturns on the "inherentquality of a legal text"but is rather"pragmatic" in nature, turningon all the factorsinvolved "in a given communicativesituation" (215, 221). 11. Marburyv. Madison,5 U.S. (1 Cranch) 137, 176 (1803). 12. Ibid. at 163. The phrase was made famous in America by John Adams, who had appointed Marshall to the bench; in MarburyMarshall wickedly used itto pinionJohn Adams's archenemy,Thomas Jefferson.For the derivationof the phrase, see Frank Michelman, "Foreword: Traces of Self-Government,"Harvard Law Review 100 (1986): 4, n. 2; 40-41. For a discussionof other strangecircumstances surrounding Marbury,see John A. Garraty,"The Case of the Missing Commissions,"in Garraty, ed., QuarrelsThat Have Shapedthe Constitution (New York, 1964). 13. Marburyv. Madison,5 U.S. at 163, 175. 14. Alexander Bickel, TheLeast Dangerous Branch (Indianapolis, 1962), 16-17. 15. Dred Scottv. Sandford,60 U.S. (19 How.) 393 (1857). 16. Marshv. Chambers,463 U.S. at 796 (Brennan,J.,dissenting). 17. See Richard A. Wasserstrom,TheJudicial Decision: Toward a Theoryof LegalJustification (Stanford,Calif., 1961), 39-83. 18. For a discussion of the nature of the rule of law, see Joseph Raz, "The Rule of Law and Its Virtue,"in TheAuthority of Law (Oxford, 1979), 210-19. 19. For furtherdiscussion, see Melvin Aron Eisenberg, The Natureof theCommon Law (Cambridge, Mass., 1988), 47-49. 20. Henry Paul Monaghan, "Stare Decisis and ConstitutionalAdjudication," Columbia Law Review88 (1988): 752 (quoting Archibald Cox, TheRole ofthe Supreme Court in AmericanGovernment [New York, 1976], 50). See Vasquezv. Hillery,474 U.S. 254, 265- 66 (1986); Roscoe Pound, "What of Stare Decisis?" FordhamLaw Review10 (1941): 2. 21. 675 F. 2nd at 233. 22. Lemonv. Kurtzman,403 U.S. 602, 612-13 (1971). See Comm.for Public Education and ReligiousLiberty v. Nyquist,413 U.S. 756, 773 (1973). 23. Marshv. Chambers,joint appendix at 49. 24. CaliforniaSenateJournal, 37th sess. (1907), 171-73, 307-8, 805-6, 808, 818-2 1. 25. Marshv. Chambers,63 U.S. at 801. 26. Ibid. at 786-88. 27. Ibid. at 788, 790. 28. This was essentiallythe positionadvocated bythe solicitorgeneral in his brieffor the United States as amicuscuriae. The solicitorgeneral argued thatin Chambers"analysis of the legislativechaplaincy practiceunder the Lemontest seems pointless"because "historicalanalysis . . . should alone sufficeto demonstratethat the Nebraska chap- laincy" was consistentwith "the intended meaning and scope of the Establishment Clause"; ibid., Brief for the United States,at 21-22. 29. Ibid. at 801. 30. Ibid. at 802-5. 31. Ibid at 816-17. As Brennan has subsequentlyexplained: "I franklyconcede that I approach my responsibilityas a justice, as a 20th centuryAmerican not confinedto [the] framers'vision in 1787. The ultimatequestion must be, I think,what do the words of the Constitutionand Bill of Rightsmean to us in our time"; address by William Brennan at Hyde Park, New York,The Recorder, 8 November 1989, 8.

Theories of ConstitutionalInterpretation 37 32. Paul W. Kahn, "Reason and Will in the Origins of American Constitutionalism," Yale Law Journal 98 (1989): 504. 33. William W. Van Alstyne, "The Idea of the Constitution as Hard Law,"Journal ofLegal Education 37 (1987): 179. For a useful symposium on the subject, see Constitutional Commentary6 (1989): 19-113. 34. Osborne v. Bank of the United States, 22 U.S. (9 Wheat.) 326, 381 (1824). 35. Eisenberg, Nature of CommonLaw, 158-59. 36. See J. M. Balkin, "Constitutional Interpretation and the Problem of History," New YorkUniversity Law Review 63 (1988): 928. 37. Minneapolis Star and Tribune Co. v. Minnesota Commissionerof Revenue, 460 U.S. 575, 583, n. 6 (1983). 38. Lest this analysis seem too hypothetical, it should be noted that from 1967 until 1973 the Supreme Court decided thirty-one obscenity cases without opinion because it was unable to agree on a rule of law to distinguish obscene from nonobscene speech. See Frederick F. Schauer, The Law of Obscenity(Washington, D.C., 1976), 44. 39. For a similar argument in the context of statutory interpretation, see Edward H. Levi, An Introductionto Legal Reasoning (Chicago, 1949), 30-33. 40. In speaking of "legal implications," of course, I am excluding the immediate impact of the decision on the parties to the case. The effect of the Chambersdecision on the Nebraska state legislature is, at least for purposes of Chambers's specific lawsuit, independent of the principle of staredecisis. That principle only determines the effect of the decision on other, similarly situated legislatures. 41. Frederick F. Schauer, "Formalism," Yale LawJournal 97 (1988): 509-48. 42. See Ronald Dworkin, Law's Empire (Cambridge, Mass., 1986). 43. Paul Brest, "The Misconceived Quest for the Original Understanding," Boston Uni- versityLaw Review 60 (1980): 234. 44. Speech of Attorney General Edwin Meese III before the American Bar Association, 9 July 1985, Washington, D.C., in The Great Debate: InterpretingOur WrittenConstitution (Washington, D.C., 1986), 9. 45. Charles Fried, "Sonnett LXV and the 'Black Ink' of the Framers' Intention," Harvard Law Review 100 (1987): 759. See H. Jefferson Powell, "The Original Understanding of Original Intent," Harvard Law Review 98 (1985): 895-98. This version of historical interpretation might, for example, justify textualism as a rule of evidentiary exclu- sion. See note 9 above. 46. Monaghan, "Stare Decisis," 725. 47. See Raoul Berger, Federalism: The Founders' Design (Norman, Okla., 1987), 13-20. 48. The undeniable force of this conclusion also illustrates the ease with which constitutional interpretation escapes from the specific and plain words of the constitutional text. 49. For an elaboration of this argument, see Ronald Dworkin, A Matterof Principle (Cam- bridge, Mass., 1985), 33-57. 50. This was also James Madison's position; see The WritingsofJames Madison, ed. Gaillard Hunt, vol. 6 (New York, 1900), 272; Powell, "Original Understanding," 937-38. 51. Marsh v. Chambers,463 U.S. at 815, n. 32; quoting Bernard Schwartz, The Bill offRights: A DocumentaryHistory, vol. 2 (New York, 1971), 1171. 52. Gerald C. MacCallum, Jr., "Legislative Intent," Yale Law Journal 75 (1966): 766-69. 53. Friedrich Nietzsche, The Use and Abuse ofHistory, trans. Adrian Collins (Indianapolis, 1957), 11. Hence the notorious "illicit love affair" between "Clio and the Court";

38 REPRESENTATIONS Alfred H. Kelly,"Clio and the Court: An IllicitLove Affair,"Supreme Court Review (1965): 119-58. 54. See p. 21 above. 55. For a discussion,see Brest,"Misconceived Quest," 225-26. 56. For the definitiveanalysis of thispoint, see David Hume, A Treatiseof Human Nature, 2nd ed., ed. L.A. Selby-Bigge(Oxford, 1978), 534-53. 57. Hanna Pitkin, "Obligation and Consent," in Peter Laslett, W. G. Runciman, and Quentin Skinner, eds., Philosophy,Politics, and Society,4th ser. (Oxford, 1972), 62. 58. Daniel A. Farber,"The OriginalismDebate: A Guide for the Perplexed," Ohio State Law Journal49 (1989): 1099-1 100. 59. Missouri v. Holland, 252 U.S. 416,433 (1920). 60. Karl Llewellyn,"The Constitutionas an Institution,"Columbia Law Review34 (1934): 14-15, 26. 61. J. N. Findlay, Kant and the TranscendentalObject: A HermeneuticStudy (Oxford, 1981), 241. 62. Hanna Pitkin, "The Idea of a Constitution,"Journal ofLegal Education 37 (1987): 167, 169. 63. Philippe Nonet and Philip Selznick, Law and Societyin Transition: Toward Responsive Law (New York, 1978), 14-15, 78. 64. Ibid., 79. 65. Ibid., 77. 66. Dun and Bradstreet,Inc. v. GreenmossBuilders, Inc., 472 U.S. 749, 759 (1985) (opinion of Powell,J.). 67. Ibid. at 787 (Brennan,J., dissenting). 68. Bowersv. Hardwick,106 S. Ct. 2841, 2844 (1986). 69. Ibid. at 2851 (Blackmun,J., dissenting). 70. David Couzens Hoy, "A HermeneuticalCritique of the Originalism/Nonoriginalism Distinction," NorthernKentucky Law Review 15 (1988): 493, 495. 71. For a good survey,see WalterF. Murphy,James E. Fleming,and WilliamF. Harris, Jr., American ConstitutionalInterpretation (New York, 1986). 72. Of course theyneed not be incompatible.Each of the threeconceptions of authority can be understood in ways that render it functionallyindistinguishable from the others. Thus an original act of consent can be construed as mandating on the one hand the rule of law, or on the other a continual,open sensitivityto the national ethos. The national ethos can be interpretedto require fidelityto precedent or sub- missionto the founders'consent; the principleof staredecisis can be implementedin such a way as to express either the national ethos or the imperativesof an original act of consent. The point, however,is thatthese potentialconvergences are merelycontingent, and hence not trulydispositive of the distinctionsthat divide the three conceptions of constitutionalauthority. For example, a judge who argues that constitutional authorityresides in an originalact of consentthat also happens to mandate sensitivity to an evolvingnational ethos is committedto the positionthat such sensitivitywould be improper if the contentof thatconsent were different.Thus forsuch ajudge the discernmentof consentwould retaina privilegedposition. 73. For a path-breakingcritique of thisapproach, see Philip Bobbitt,Constitutional Fate: Theoryof the Constitution(New York, 1982). 74. As I writethis, for example, the survivalof a woman's constitutionalright to termi- nate a pregnancywithin the firsttwo trimestersdepends to no small extentupon the

Theories of ConstitutionalInterpretation 39 value assigned by the Supreme Court to the principle of staredecisis; see Websterv. ReproductiveHealth Services, 109 S. Ct. 3040, 3056-57 (1989) (opinion of Rehnquist, C.J.); ibid. at 3078 (Blackmun,J., dissenting);Akron v. AkronCenter for Reproductive Health,462 U.S. 416, 419 (1983). 75. For examples, see UnitedStates v. Scott,437 U.S. 83, 86-87 (1978); Garciav. San Antonio MetropolitanTransit Authority, 469 U.S. 528 (1985). It is particularlyimportant that past precedent not be entirelydecisive "in cases involvingthe Federal Constitution, where correction through legislative action is practicallyimpossible," Burnet v. CoronadoOil and Gas Co., 285 U.S. 393, 405-8 (1932) (Brandeis,J., dissenting),and hence where, since the practiceof constitutionalamendment is so cumbersomeand impractical,correction can in many circumstancesonly come as a practical matter when the Court itselfturns away fromstare decisis. For thisreason the Supreme Court has a "considered practice not to apply staredecisis as rigidlyin constitutionalas in nonconstitutionalcases"; GliddenCo. v. Zdanok,370 U.S. 530, 543 (1962) (opinion of Harlan, J.). See Pattersonv. McLean CreditUnion, 109 S. Ct. 2363, 2370-71 (1989). 76. Marshv. Chambers,463 U.S. at 792. 77. This suggeststhat we should expect to see historicalinterpretation predominate (at least in cases of firstimpression) in the years immediatelyfollowing the ratification of a constitutionalprovision. During that time there will be an obvious and percep- tible identificationwith the process of consent. But as the years pass, and as the connections to that process fade, the assumption of identificationmay become increasinglyless plausible or persuasive. Changed circumstancesor altered cultural conditionsmay make the consent of the ratifiersseem foreignor alien, quite unlike our own consent. It is at such momentsthat one would anticipatea transitionfrom historicalto responsive interpretation.Llewellyn offers a marvelous descriptionof thisprocess in "Constitutionas Institution,"12-15. 78. In the words of Don Herzog, "The consentof the governedis a special case. It hangs not on the choices made by individualsbut on the responsivenessof the stateto the people, taken as a collectivebody"; HappySlaves: A Critiqueof Consent Theory (Chicago, 1989), 215. 79. It is of course possible to argue thatwe should be bound by the ratifiers'will even if it does not reflectour own. But then it must be explained why thisis the case, and thatexplanation cannot invoke the authorityof consent.One possible explanation is that the governmentcouldn't functionif decisions made according to appropriate democratic procedures were to lose their authoritysimply because the passage of timehad altered the relevantdemocratic constituency. But thisexplanation, stressing as it does the necessityfor the Constitutionto remain in effectas law in order to sustain the values of continuity,reliance, and predictability,would logicallylead to a formof doctrinal,rather than historical,interpretation. 80. Brownv. Board ofEducation, 346 U.S. 483, 489-95 (1954). 81. For a discussionof the incompatibilityof Brownwith any formof historicalinterpretation,see Monaghan, "Stare Decisis," 728. 82. Plessyv. Ferguson,163 U.S. 537 (1896). 83. See, e.g., Cooperv. Aaron,358 U.S. 1 (1958). 84. John Hart Ely,Democracy and Distrust(Cambridge, Mass., 1980), 2-3. In recentyears, withthe advantage of hindsight,more convincingarguments have been made that Roe could seriouslybe justifiedas a formof doctrinalinterpretation. 85. For a discussion of the distinctionbetween expressive and hegemonic functionsof law,see RobertC. Post,"Cultural Heterogeneityand Law: Pornography,Blasphemy, and the FirstAmendment," California Law Review76 (1988): 299-300.

40 REPRESENTATIONS 86. See Thomas C. Grey,"Do We Have an UnwrittenConstitution?" Stanford Law Review 27 (1975): 703-18; David Lyons,"A Prefaceto ConstitutionalTheory," Northern Ken- tuckyLawReview 15 (1988): 459-98. 87. Ely, Democracyand Distrust,88, note. 88. Henry Paul Monaghan, "Our PerfectConstitution," New YorkUniversity Law Review 56 (1981): 375-76 (emphasis added). 89. For the fascinatingsuggestion that we may have actuallyenshrined the wrong document, see Akhil Reed Amar, "Our ForgottenConstitution: A Bicentennial Com- ment," Yale Law Journal 97 (1987): 281-98. 90. For a briefdiscussion of the historyof "organic"metaphors of the Constitution,see Michael Kammen, A Machine That Would Go ofItself: The Constitutionin American Culture (New York, 1986), 19-20. 91. The words are those of ChiefJustice Charles Evans Hughes, in HomeBuilding and Loan Assoc. v. Blaisdell, 290 U.S. 398, 443-44 (1934). 92. See, e.g., Hans-Georg Gadamer, Truthand Method(London, 1975); Alasdair Mac- Intyre,After Virtue (Notre Dame, Ind., 1981). 93. Philip Selznick, "The Idea of a CommunitarianMorality," California Law Review75 (1987): 451. 94. On the distinctionbetween preferencesand values, see Mark Sagoff,"Values and Preferences,"Ethics 96 (1986): 301-14. 95. "Everyclash between a minorityclaiming freedom and a majorityclaiming power to regulate involves a choice between the gratificationsof the two groups. When the Constitutionhas not spoken, the Court will be able to find no scale, other than its own value preferences,upon which to weigh the respectiveclaims to pleasure"; Robert H. Bork, "Neutral Principlesand Some FirstAmendment Problems," Indiana Law Journal 47 (1971): 9. 96. Theodor W. Adorno and Max Horkheimer,Dialectic of Enlightenment,trans. John Cumming (New York, 1972), 38. As Adorno and Horkheimerobserve, "so long as the identityof the user of reason is disregarded,"reason acquires an "affinity"with "force"(87). 97. Nonet and Selznick,Law and Society,29. 98. One alternativeconclusion, of course, is thatthere be no constitutionallaw at all, but only simple majorityrule. The point in text assumes that those propounding the counter-majoritariandifficulty are attemptingto offer a characterizationof an appropriate, ratherthan nonexistent,form of constitutionallaw. 99. For a clear example of this formof argumentation,see Ely,Democracy and Distrust; fora general discussion,see Farber,"Originalism Debate," 1097-1100. 100. See, e.g., Richard H. Fallon, Jr.,"A ConstructivistCoherence Theory of Constitu- tional Interpretation," Harvard Law Review 100 (1987): 1217-23. 101. The phrase is fromJohn Schaar,Legitimacy in theModern State (New Brunswick,N.J., 1981), 38. 102. Adorno and Horkheimer, Dialectic ofEnlightenment, 87.

Theories of ConstitutionalInterpretation 41