Constructing the constitutional canon: the metonymic evolution of Federalist 10.

• Author: Bartrum, Ian

What is the connection between what I have called languages, functions from strings of sounds or marks to sets of possible worlds, semantic systems discussed in complete abstraction from human affairs, and what I have called language, a form of rational, convention-governed human social activity?

David Lewis (1)

David Lewis's question about the connection between "semantics" and "language-as-practiced" is, I think, analogous to the question at the center of this discussion, which is: how are we to understand the connection between constitutional text and constitutional meaning? (2) Recent and important work by Keith Whittington and Lawrence Solum approached this question by positing a fundamental distinction between the processes of "interpretation" and "construction" in our legal practices. (3) Put in these terms, the question resounds with echoes of a much older structural debate about the role of the judiciary in constitutional government, and seems to hint that such a distinction, if real, might help us identify the boundaries of legitimate judging. As a dedicated puzzle-solver within Philip Bobbitt's modal paradigm of constitutional theory and discourse, (4) however, I cannot take the hint as offered because I do not believe that the legitimacy of a constitutional practice rests upon externally imposed foundational or normative theories--theories that seem to suggest that there could be one correct kind of connection between Lewis's categories of "languages" and "language." Instead, I believe that legitimacy in constitutional practice arises when we follow certain organic, internally generated argumentative rules closely enough that other practitioners can recognize and comprehend--if not always endorse--our assertions of constitutional meaning. This is not to say that I am insensitive to the attractions--the allure of objectivity and constraint--that normative theories present. Nor do I doubt that the interpretation-construction distinction can be an important part of a precise species of historical arguments about constitutional meaning in a limited class of cases. The point, rather, is that I do not believe that, in general, these kinds of objectivity and precision are definitive or limiting features of our argumentative practices--those social processes by which we currently decide upon constitutional meanings. But, I hasten to add, I do not accept that this final assertion relegates me to the margins of contemporary theory, where I might commiserate with the legal realists about the vagaries of an unconstrained judiciary. To explain why, I must begin by briefly outlining the Wittgensteinian underpinnings of Bobbitt's modal theory.

One of Ludwig Wittgenstein's fundamental purposes in the Philosophical Investigations was to reject the search for a unified account of language's internal logic, which had occupied the bulk of his only published work: the Tractatus Logico-Philosophicus. (5) Rather, the later Wittgenstein suggested that language is not one activity, but a variety of different kinds of activities, each with different rules and purposes. (6) Across the spectrum of these myriad "language-games," the same word often serves a variety of different--though related--functions, each specific to the particular "game" within which it is employed. From this it follows that a word's meaning often does not derive from some foundational referent in the world, but, rather, is determined by the use to which it is properly put within a particular language-game. (8) The properly part is critical, for it precludes the impossible suggestion that a word can mean whatever we want to use it to mean, and, instead, grounds the generalized claim that "the meaning of a word is its use" in a more specific account of what it is to understand and follow the rules of a language-game. (9) Without getting too deeply into Wittgenstein's complex and controverted theory of how we identify, understand, and follow these rules, it is essential to remember that obeying a rule is also a social practice and "[h]ence it is not possible to obey a rule privately." (10) We can only know that we have successfully followed a rule--that we know how to use a word and thus what it means--when our usage is understood, or "ratified," by another participant in the particular language-game. (11) But, as elements of a practice, the rules themselves will evolve as contexts and purposes change, and as individual participants leave their impact on the game. It is in something like this way that meanings change over time. (12)

Bobbitt's modal theory thoughtfully applies some of these insights about the nature of language to the contextualized social practice that concerns us here: constitutional law. He has suggested that we should understand the Constitution itself as analogous to a Wittgensteinian language-game--complete with its own internal rules or grammar--and thus the legitimacy of a constitutional assertion depends upon its grounding in the proper forms of argument and usage. (13) For Bobbitt, six such argumentative forms or modalities--textual, historical, structural, doctrinal, prudential, and ethical--make up the constitutional grammar. (14) To be clear, an assertion of constitutional meaning rooted in one or more of these modalities is legitimate, but not necessarily dispositive. It is up to the courts, the decision-makers in our practice, to choose among competing assertions at any given moment in time. And even a judicial decision may be only an impermanent resolution of constitutional meaning. After all, an ill-fitting decision--like an inapt word or metaphor in any language-game--may protrude, exposed, into the unforgiving flow of practice, and, if not formally revisited, simply wear away over time." On the contrary, other assertions of meaning--some judicially recognized, and some not--may settle so comfortably into our practice that they become seemingly imperturbable bulwarks of the growing constitutional edifice. And so, in this way, I suggest that we are all, as participants in the constitutional conversation, constantly constructing constitutional meaning--even when we are simply "interpreting" the text. But our construction is not unconstrained in a coarse realist sense. Instead, we are guided ex ante by the rules of constitutional grammar, and we are answerable ex post to a faceless and proletarian norm-giver: the practice. (16)

From this perspective, I think we must reorient the discussion of interpretation and construction so that we no longer view the distinction linearly, as if it separated an initial analytic or foundational kind of inquiry (interpretation) from a subsequent synthetic or derivational kind of activity (construction). Instead, we should treat both activities--if we assume that they are, in fact, distinct in some interesting way--as interrelated and interdependent aspects of an ongoing effort to overcome the fundamental and inherently problematic relationship between linguistic vagueness and the law. (17) More importantly, I do not believe either activity can actually reveal something a priori or foundational. Professor Solum's sophisticated argument notwithstanding, in most cases I do not think that an assertion's "semantic content" can be understood in terms of "linguistic facts"; (18) rather, meaning arises when both a speaker and a hearer identify and follow the applicable language conventions--which are, in turn, constructed through conversation over time. And so, in constitutional discourse, I think it is more accurate to say that today's "constructions" (and their assimilation over time) will necessarily reshape and reconstitute the conventions--the Wittgensteinian rules--that govern tomorrow's "interpretation." (19) This means that the words alone are often not resource enough to ground a definitive act of interpretation; we must also know a great deal about the constructed conventional context in which they were written if we hope to give an authentic account of speaker's intent. (20) And, once we are beyond the words themselves, it seems to me that we are taking the first few steps across the border between interpretation and construction. (21) In this sense, then, a meaningful act of interpretation is, itself, constructive in ways that tend to undermine the distinction's utility as a constraint on judges (although, again, the distinction may highlight other interesting features of adjudication).

I suppose that interpretation-construction proponents might argue that we do not need a fully determinative theory of original textual meaning to make the distinction a useful part of an originalist theory of constitutional meaning--and they could be right. In other words, as long as we can roughly agree on what competent speakers understood constitutional language to mean at the time it was ratified, then we have something relatively foundational on which to construct the legal rules applicable to modern controversies. (In Bobbitt's terms, we might use historical argument to ground our doctrinalism). The larger point, however, is that our constitutional practices are analogous enough to our language practices that the same contextual variables which complicate theories of textual "interpretation" also complicate (perhaps to an even greater extent) the argumentative practices through which we "construct" legal rules. To be competent, or at least understood, within the practice, we must embed our assertions of constitutional meaning within the argumentative context that we inherit and inhabit--and original intentions are only one part of that larger context. And so, unfortunately, I think something is lost from the project the interpretation-distinction was supposed to help make possible: it can only rarely help define the connection between constitutional text and constitutional meaning; for the most part, it just gives us more precise means of deriving a possible connection. Ultimately...