The Interpretable Constitution.

• Author: Brown, Rebecca L.

By William F. Harris 11.1 Baltimore: Johns Hopkins University Press. 1993. Pp. xv, 208. Cloth, $38.50.

Rebecca L. Brown(2)

What exactly is the Constitution? William Harris tantalizes with a promise to take up that question that has long daunted constitutional theorists. He rightly suggests that the question logically precedes any theory about how interpreters should read the document. A sense of excitement accompanies Harris' claim to have identified the nature of the Constitution in such a way as to provide a philosophical framework for objectively evaluating various approaches to constitutional interpretation. Some interpretative theories will be shown to be right, some wrong. At last, it appears, someone has set out to resolve H.L.A. Hart's important conundrum that there is "no rule providing criteria for the assessment of its own legal validity,"(3) which has had such poignant application to the field of constitutional interpretation. But the results are disheartening.

Harris starts from the position that the constitutional debate over the last several decades has been misguided and lacking in moorings. The resulting discourse has thus become perversely rigid and riddled with unexamined assumptions, consequences that Harris--a political science scholar--attributes across the board to the study of law in general. Those who study and apply the law have done it wrong. Apparently legal academics, judges, and lawyers (and perhaps even Senators) all fall into the category of misdemeanants whom Harris, with palpable bitterness, collectively brands "professionalized law." The book has a real sense of "us" "them" hostility, peppered with territorial war metaphors to suggest that constitutional theory has unjustifiably been annexed as a domain of the law. This usurpation has led to "the capture of the field by professionalized law," relegating the reading of the Constitution to "parsing techniques legal professionals use to open black-letter snippets to their advantage." Thus, Harris believes, "[t]he first step toward a paradigm may be to break the tandem between, or ... to disrupt the nesting of, constitutional theory and legal science."

In support of his assertion that constitutional theorists lack a guiding paradigm, Harris quotes a critique written by Sanford Levinson. And in the development of his own such paradigm, he borrows expressly from the "conceptual qualities" propounded by H.L.A. Hart, Ronald Dworkin and John Hart Ely. It strikes me as odd that he does not acknowledge that these thinkers are themselves denizens of the universe that he condemns in toto. The reliance on Levinson's critique is especially ironic in its testament to the heterogeneity of this world of "professionalized law," which certainly boasts thoughtful members who eschew the rigid at least as ardently as Harris himself does. Others who might be mentioned are not. As for Harris, his contempt for the perverse rigidities" that mark the study of constitutional law has led him to construct a two-axis model for the resolution of interpretative problems! And that model is called The Interpretable Constitution.

My criticism of this work follows two paths. First, I will provide a short and accessible version of what I understand the theory to be and explain why I do not think the case has been made for its validity. But my more important objection to this book lies in the very concerns that apparently led Harris to write it: even if internally sound, the theory amounts to but one more illusory means for judges to avoid judging, to provide the facade of objectivity to the project of reading the Constitution--or, in this case, to the project of testing the legitimacy of ways of reading the Constitution.(4) This particular variation happens to offer a bit more leeway to the interpreter than does strict formalism, textualism, or intentionalism, but Harris' enterprise is by its very nature not different in kind. He wishes to seek out "right" ways to answer constitutional questions, ways that do not change according to who the interpreter is, ways that, by claim to "legitimacy," can rightfully displace "illegitimate" ones. It is this effort that I believe is misguided.

I

The book endeavors to define what the Constitution is by resort to an elaborate metaphor between language and politics. This intriguing correspondence enjoys a long history stemming to classic liberal political theory and with roots more ancient. Better yet, it rings true. Intuitively we accept the notion that speech, either as historical or cultural narrative or as command, provides a foundation for the identity of a people, just as the social contract provides a foundation for its security and perpetuation. Harris reminds us that God created, with names, the separations that gave life to the universe and thus established political authority. He suggests that "communication (storytelling) is conducive to community (political life)." He quotes John Locke's observation that language "was to be the great instrument and common tie of society." And he resorts to the familiar platonic image of patterning the "polis" after the "logos" to establish the "primal interpenetration" of language and politics. The parallels between language and politics are striking and largely unexceptionable.

But for Harris this intuitive notion of parallels is only the beginning. He wishes to use the metaphor as a cornerstone for the project of identifying the true nature of the Constitution. In pursuit of that objective, Harris focuses on the work of Thomas Hobbes, from whom he derives the principle that words can be understood to bind action through the concept of a social contract. If one designates the social contract (a creature of language) as a source of political authority, one thus establishes a political order that can be grasped, through language, with the intellect. Civil power, then, is derived from the model of language, projected onto the political realm.

The real question is whether this still quite simple foundation can support the monumental edifice that Harris seeks to erect upon it. Expressly abstracting well beyond the work of Hobbes, Harris draws what he terms a "homology" (indicating a greater degree of identity than a mere analogy) between language and politics. He claims that "reasoning and governing are parallel first and second orders of the same calculus." This gives rise to a syllogism of sorts, in which the "natural person" or citizen is said to bear the same relationship to reason and language that the "artificial person" or polity bears to government and social covenants, respectively. That is, the mode of thinking and communicating for an individual is seen as the model for a polity's actions of regulating, and those who act for the polity represent those who reason as individuals. The act of empowering the polity constitutes authority, or, literally, authorship of the speech of the artificial person by the natural person. With a chart, Harris illustrates the parallels between the "first order," citizen...