Reading the Constitution as spoken.

• Author: Rubenfeld, Jed

1. INTRODUCTION

   Constitutional law, which speaks today to almost everything, has nothing to say on one subject. It has no account of its own interpretive method.

   The truth is that most of us don't know if the Supreme Court is "interpreting" the Constitution at all anymore. Or whether it ever did. Or what exactly it would mean for the Court to do so. We have in this country a very successful practice of constitutional interpretation coupled with a thoroughgoing cynicism about its coherence and legitimacy.

   Perhaps this cynicism exists because what passes for constitutional interpretation really is "unprincipled" and "illegitimate."(1) But perhaps there are deeper problems in the way we think about constitutional law today than in the way we practice it. Could it be that what passes for constitutional theory is somehow unable to comprehend constitutional law?

   This possibility raises two fundamental questions.

   First, is there an interpretive account of actual constitutional practice that would make sense of it--that would capture in general fashion what our courts are doing and have done with the Constitution? To ask for an interpretive account is to ask whether, despite the obvious introduction of normative judgments into the law, and despite all the departures from original intent, the courts' doings can yet be understood as interpretation--as the elaboration of an interpretive method, rather than as a hodgepodge of policy decisions or as a re-writing of the text.

   Second, if so, is that interpretive method legitimate? This is to ask whether there is an account of the proper judicial role in a democracy from which the method plausibly follows. If there is such an account, we need to explain why it eludes contemporary constitutional thought.

   There is an interpretive method underwriting constitutional practice, and it is consistent with the proper judicial role in a democratic polity. It has eluded our grasp because the prevailing schools of constitutional interpretation, various as they are, are linked by a common understanding of democracy--an understanding that in fact misunderstands what the judiciary is and ought to be doing when it interprets the Constitution. Or so at least I shall argue.

   In what follows, I distinguish a very familiar understanding of democracy, which I will call speech-modeled, from a less familiar one, which I associate with written constitutionalism. The speech-modeled conception imagines democracy in terms of a conformity between governance and the democratically authoritative will of some particular time. Ideally, democratic legitimacy would be attained on this view if the voice of state authority were none other than the voice of the people itself.

   Within this conception, there are three basic ways to understand constitutional law, if such law is not to appear fundamentally illegitimate. First, constitutional law might be thought obliged to adhere to what the Framers or ratifiers meant to say or would have said on any given question, because this was the understanding democratically ratified. Second, the function of constitutional law might be understood solely or primarily as a matter of safeguarding the process that allows today's voters to make their voices heard. Third, judges might be thought obliged to speak for the people's evolving constitutional ideals. These speech modeled positions are staples of contemporary constitutional commentary. They stake out, respectively, the basic claims made by originalists,(2) process-based theorists,(3) and those who advocate fundamental-values approaches to constitutional law.(4)

   Each of these three positions is logically available within the model of speech, but each is also subject to fatal counterthrusts from the others. Originalism cannot explain the supremacy of the democratic voice of the past over that of the present; processualism cannot explain the manifestly substantive commitments embodied in numerous constitutional provisions; and fundamentalism (for lack of a better word) cannot explain the judiciary's competence to speak for the people. But these thrusts and parries are the best the model of speech can do. Its only alternative--and it is always a live alternative--is to regard constitutionalism as radically antidemocratic.(5)

   The model of speech cannot do justice to constitutional self-government. Written constitutionalism demands its own conception of self-government--self-government on the model of writing.

   Self-government on the model of writing understands itself as a generation-spanning endeavor. It rejects the idea that constitutional constraints are at best democratic efforts by a majority at one moment to impose antidemocratic limitations on majorities tomorrow, or at best procedural efforts to create democratic institutions, or devices through which judges are positioned to speak for a contemporary consensus. It begins instead with the premise that living up to enduring, substantive constitutional commitments is integral to self-government itself.

   True self-government would not be achieved in a glorious moment at which law was made by a univocal, deliberate declaration of the voice of the people. To conceive of self-government on the model of writing is to think through the possibility that self-government is attainable not at any one time, but only over time.

   What does this imply for constitutional interpretation? Reading the Constitution as written opens up the possibility of an interpretive method neither originalist, literalist, processualist, nor fundamentalist. I call it commitmentarian.

   In interpreting a textually specified right, suppose that what those who fought for this right fought most centrally to prohibit received paramount deference, while what they understood their prohibition to permit received little or none at all. From the paradigm cases of what the right was enacted to abolish, courts would formulate rules or principles of application mediating between the general language of the text and particular fact patterns; these rules or principles and their requirements would emerge through case-by-case elaboration; and in applying them, courts could with full authority strike down laws that the Framers (however that term is defined) never intended to be covered. A parallel methodology would apply to the grants of power, only reversed: Here, what was centrally meant to be permitted would form the paradigm cases of applicability, whereas what was understood to be out of reach of the grant of power would receive little or no deference at all.

   Put aside for the moment the obvious questions--how are paradigm cases to be identified? how can intent-to-prohibit and intent-to-permit be distinguished? what could justify privileging one over the other?--and suppose that this methodology underwrote our interpretive regime. We could then expect constitutional law to bear the following attributes. It would be neither originalist nor deferential to current majority will; there would be a strong pressure within the interpretive process to expand both constitutional rights and powers; adjudication would proceed in common-law-like fashion; finally, the normative component of this practice would render constitutional law radically open to different ideological orientations, yet its practitioners would nonetheless feel its methodological restraints. Obviously, I mean this list to strike readers as familiar.

   Part II of this Article describes the model of speech, traces its operation in various accounts of constitutional interpretation, and argues its inability to do justice to constitutional law. Part III elaborates the alternative model of writing. Part IV discusses the implications of the model of writing for constitutional law: its theory of judicial review, its position on "unwritten" rights, and its method for reading the constitutional text.

   2. THE MODEL OF SPEECH: CONVERSATION AND ITS DISCONTENTS

   To avoid confusion: I am not going to argue that the Constitution demands a form of interpretation peculiar to the written word, as if there were one hermeneutic applicable to all written records and another to all oral utterances. No categorical distinction between writing and speech exists for interpretive purposes. Plato's dialogues would not demand one interpretation when read, but another when spoken, if it were even possible to distinguish sharply writing from speech in such a text.(6)

   But if writtenness and spokenness as such do not demand different forms of interpretation, what can it mean to speak of "speech-modeled" interpretation at all?

   Interpretation is speech-modeled if it seeks to resolve textual ambiguities by reference to, or to replace a text altogether with, acts of speech or voice. For example, when in ordinary conversation I ask you to clarify something you have said, I am engaging in the simplest form of speech-modeled interpretation. I am trying to resolve an ambiguity in your previous statement by soliciting further acts of speech. But speech-modeled interpretation does not require that these further speech acts be found in actual spoken utterances; they may also be found in hypothetical utterances or even in a written record.

   How can a 200-year-old text like the Constitution be interpreted on the model of speech? In a variety of ways, as we shall see shortly. But first let's explore the premises that underlie every speech-modeled approach to constitutional law. These premises do not sound in a general theory of language or meaning. Speech-modeled constitutional interpretation rests not on linguistic theory, but on political theory. Not every advocate of speech-modeled constitutional interpretation is a political theorist, but every version of speech-modeled constitutional interpretation emerges from a certain conception of democratic self-government, in which speech plays a definitive role.

   Let's begin by identifying this speech-modeled conception of self-government.

   1. The Freedom of...