By William F. Harris II Baltimore: Johns Hopkins University Press. 1993. Pp. xv, 225. $38.50.
"[W]e must never forget, that it is a constitution we are expounding."(1)
Professor William F. Harris II(2) attempts to give meaning to John Marshall's well-known phrase in his recent book, The Interpretable Constitution. Harris ambitiously attempts to derive a theory of constitutional interpretation from first principles by identifying what is unique about the genre of a constitution in general and about the American Constitution in particular.
The Interpretable Constitution is not a list of "wrong" Supreme Court decisions; nor is it merely a recipe for interpreting the Constitution. In Harris's own words, "the purpose of the Interpretable Constitution is not to produce categorically correct answers but to substantiate ways of interpreting that do not undermine the nature of the enterprise and whose conscientious use will illuminate the character of its political project" (p. 162 n.28). To that end, Harris develops a complex, multilayered, and language-based view of the constitutional project. In describing that project, Harris claims that
[i]n this crucially self-referential enterprise, a purposefully composed
text creates its own normative author. It constructs the popular sovereign
it needs to be authoritative, and it nurtures the political life of a
People whose citizenship provides it with the only reality it can have or
need.... This People and these Citizens are not merely the analytical
necessities for explaining the validity of the Constitution. Their persistent
commitments and practices give the project its three-dimensionality
as a meaningful world.(3) Harris's basic premise is that constitutional interpretation must focus on the bond between language and politics that we usually take for granted (p. 84), and, accordingly, his theory is deeply intertwined with language.
Harris posits two distant but parallel political orders. The first is the level of the individual and the Constitution-as-a-document. On this level, an individual, or "natural" person, considers the truth and falsity of propositions by reasoning and communicates those judgments through language. The analogous second order is the realm of the political collectivity and the constitution-as-a-polity -- the instantiation of the first order document in the political sphere. Here, the artificial person, akin to Hobbes's Leviathan, ponders justice by a process of collective rationality that takes the form of civil law. To explain the relationship between the two levels, Harris constructs a political metaphor of writing, reading, explaining, and revising the Constitution and the constitution -- the first- and second-order political "texts."(4) Each component of the metaphor comprises a separate chapter.
In Chapter One, "Writing the Constitutional Polity," Harris begins with the observation that politics and language are deeply connected, both descriptively and normatively (p. 46). Politics is, and should be, carried out through language. Although that statement may be true of most, if not all, political systems,(5) word and polity are even more profoundly bound in the specifically American political arrangement, in which a written document serves as the very foundation of the American polity. "To write a Constitution -- that is, to write down the political form -- is ... to trade on and ... to systematize the preexisting concordance of language and politics. This chapter explores Constitution-writing under such a conceptualization" (p. 47; emphasis omitted).
Authoring a Constitution parallels the authoring of other genres. Harris
speaks of literary narrative as marking off a "clean, well-lighted place" -- to use Ernest Hemingway's metaphor -- from the surrounding darkness and chaos,(6) Much as a political narrative establishes an organized sphere from some sort of Hobbesian state of nature. In Genesis, God speaks, and order emerges from the chaos as light separates from darkness.(7) A group of people write a Constitution, which in turn grants them an identity and defines them as a Constitutional People, a People of the text. The American Constitution becomes a metaphor for the American constitution; the written document stands as a symbol of the reality of the polity.
Harris argues that the "writtenness" of the Constitution is fundamental to the document's interpretability (p. 83). Basing the political order on a written document presupposes a set of constitutional readers who not only form a political whole but also act individually. "To erect a constitutional order with public writing is to ground it not only in political collectivity but also in individual intelligence" (p. 85).
In Chapter Two, "Reading the Constitutional Polity," Harris explains the importance of being able to "read" the second-order political "text" (p. 102). He expands on his claim that the first-order written document serves as a metaphor for the second-order constitution of the polity. Furthermore, he argues that establishing connections between a "first order of the individual as a natural, aggregatable being and a second order of the public as artificial orderliness and wholeness" (p. 95) is crucial to the ongoing vitality of the enterprise. The two constitutional attributes of Authority and Legibility serve as...