CONSTITUTIONAL INTERPRETATION

"Constitutional interpretation" comprehends the methods or strategies available to people attempting to resolve disputes about the meaning or application of the Constitution. The possible sources for interpretation include the text of the Constitution, its "original history," including the general social and political context in which it was adopted as well as the events immediately surrounding its adoption, the governmental structures created and recognized by the Constitution, the "ongoing history" of interpretations of the Constitution, and the social, political, and moral values of the interpreter's society or some subgroup of the society. The term "originalist" refers to interpretation concerned with the first three of these sources.

The extraordinary current interest in constitutional interpretation is partly the result of controversy over the supreme court's expansive readings of the fourteenth amendment; it also parallels developments in literary theory and more generally the humanities. Received notions about the intrinsic meaning of words or texts, access to an author's intentions, and the very notion of "validity" in interpretation have been forcefully attacked and vehemently defended by philosophers, literary theorists, social scientists, and historians of knowledge. Legal writers have imported scholarship from these disciplines into their own, and some humanists have become interested in legal interpretation.

Issues of interpretive methodology have always been politically charged—certainly so in constitutional law. john marshall's foundational decisions asserting the power of the central government were met by claims that he had willfully misconstrued the document. In our own time, modernist interpretive theories tend to be invoked by proponents of judicial activism, and more conventional views by its opponents. The controversy within the humanities and the social sciences is itself deeply political, for the modernist assertion that truth or validity is socially constructed and hence contingent is often perceived as destabilizing or delegitimating.

The Constitution is a political document; it serves political ends; its interpretations are political acts. Any theory of constitutional interpretation therefore presupposes a normative theory of the Constitution itself—a theory, for example, about the constraints that the words and intentions of the adopters should impose on those who apply or interpret the Constitution. As Ronald Dworkin observed, "Some parts of any constitutional theory must be independent of the intentions or beliefs or indeed the acts of the people the theory designates as Framers. Some part must stand on its own political or moral theory; otherwise the theory would be wholly circular."

The eclectic practices of interpreters and the continuing debate over the appropriate methods or strategies of constitutional interpretation suggest that we have no unitary, received theory of the Constitution. The American tradition of constitutional interpretation accords considerable authority to the language of the Constitution, its adopters' purposes, and the implications of the structures created and recognized by the Constitution. But our tradition also accords authority to precedents and the judicial exegesis of social values and practices, even when these diverge from plausible readings of the text and original understandings.

Any theory of constitutional interpretation must start from the fact that we have a written Constitution. Why is the written Constitution treated as binding? Because, as Chief Justice Marshall asserted in marbury v. madison (1803), it is law—the supreme law of the land—and because since 1789 public institutions and the citizenry have treated it as an authoritative legal document. It is no exaggeration to say that the written Constitution lies at the core of the American "civil religion."

Doubtless, the most frequently invoked canon of textual interpretation is the "plain meaning rule." Marshall wrote in sturges v. crowninshield (1819):

[A]lthough the spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words.… [I]f, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous that all mankind would, without hesitation, unite in rejecting the application.

Marshall did not equate "plain" meaning with "literal" meaning, but rather (as Justice oliver wendell holmes later put it) the meaning that it would have for "a normal speaker of English" under the circumstances in which it was used. The distinction is nicely illustrated by Chief Justice Marshall's opinion in mcculloch v. maryland (1819), decided the same year as Sturges. Maryland had argued that the necessary and proper clause of Article I authorized Congress only to enact legislation "indispensable" to executing the enumerated powers. Marshall responded with the observation that the word "necessary," as used "in the common affairs of the world, or in approved authors, … frequently imports no more than that one thing is convenient, or useful, or essential to another." He continued:

Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense. Almost all compositions contain words, which, taken in their rigorous sense, would convey a meaning different from that which is obviously intended. It is essential to just construction that many words which import something excessive, should be understood in a more mitigated sense—in that sense which common usage justifies.… This word, then, like others, is used in various senses; and in its construction, the subject, the context, the intention of the person using them, are all to be taken into view.

To read a provision without regard to its context and likely purposes will yield either unresolvable indeterminacies or plain nonsense. An interpreter could not, for example, decide whether the first amendment's " freedom of speech " encompassed singing, flag-waving, and criminal solicitation; or whether the "writings" protected by the copyright clause included photographs, sculptures, performances, television broadcasts, and computer programs. She would not know whether the provision in Article II that "No person except a natural born Citizen … shall be eligible to the Office of President" disqualified persons born abroad or those born by Caesarian section. We can identify interpretations as compelling, plausible, or beyond the pale only because we think we understand the concerns that underlie the provisions.

One's understanding of a provision, including the concerns that underlie it, depends partly on the ideological or political presuppositions one brings to the interpretive enterprise. Marshall could so readily label Maryland's construction of the word "necessary" as excessive because of his antecedent conception of a "constitution" as essentially different from a legal code—as a document "intended to endure for ages to come"—and because of his beliefs about the structure of federalism implicit in the United States Constitution. A judge starting from different premises might have found Maryland's construction more plausible.

A meaning thus is "plain" when it follows from the interpreter's presuppositions and when these presuppositions are shared within the society or at least within the relevant "community of interpretation"—for example, the legal profession. Kenneth Abraham has remarked, "The plain is plain because it is constantly recurring in similar contexts and there is general agreement about the meaning of language that may be applied to it. In short, meaning is a function of agreement.…"

When a provision is interpreted roughly contemporaneously with its adoption, an interpreter unconsciously places it in the social and linguistic context of her society. Over the course of several centuries, however, even a relatively stable nation will undergo changes—in social and economic relations, in technology, and ultimately in values—to an extent that a later interpreter cannot readily assume that she has direct access to the contexts in which a constitutional provision was adopted. This poses both a normative and a methodological question for the modern interpreter: should she attempt to read provisions in their original social and linguistic contexts, or in a modern context, or in some way that mediates between the two? And, to the extent that the original contexts are relevant, how can she ascertain them?

Original history includes "legislative history"—the debates and proceedings in the conventions and legislatures that proposed and adopted constitutional provisions—and the broader social, economic, and political contexts surrounding their adoption. Although it is widely acknowledged that original history should play a role in constitutional interpretation, there is little agreement over the aims and methods of historical inquiry. The controversy centers on the level of generality on which an interpreter should try to apprehend the adopters' intentions. On the highest or broadest level, an interpreter poses the questions: "What was the general problem to which this provision was responsive and how did the provision respond to it?" On the most specific level, she inquires: "How would the adopters have resolved the particular issue that we are now considering?"

The first or "general" question elicits answers such as: "The purpose of the commerce clause was to permit Congress to regulate commerce that affects more than one state, or to regulate where the states are separately incompetent to regulate." Or: "The purpose of the equal protection clause was to prohibit invidious discrimination." These characterizations do not purport to describe the scope of a provision precisely. On the contrary, they are avowedly vague or open-ended: the claim is not that the equal protection clause forbids every conceivable invidious discrimination (it may or may not) but that it is generally concerned with preventing invidious discriminations.

The general question is an indispensable component of any textual interpretation. The interpreter seeks a "purpose" that she can plausibly attribute to everyone who voted for the provision, and which, indeed, must have been understood as their purpose even by those who opposed its adoption. The question is often couched in objective-sounding terms: it seeks the "purpose of the provision" rather than the "intent of the framers." And its answer is typically sought in the text read in the social and linguistic context in which it was adopted. As Marshall wrote in McCulloch, "the spirit of an instrument … is to be collected chiefly from its words." If the status of the written Constitution as "law" demands textual interpretation, it also entails this general inquiry, without which textual interpretation cannot proceed.

The second inquiry, which can be called "intentionalist," seeks very specific answers, such as: "Did the adopters of the Fourteenth Amendment intend to prohibit school segregation ?" or "Did they intend to prohibit "reverse' discrimination?" One rationale for this focus was asserted by Justice george h. sutherland, dissenting in home building & loan association v. blaisdell (1934): "[T]he whole aim of construction, as applied to a provision of the Constitution, is … to ascertain and give effect to the intent of its framers and the people who adopted it." Another rationale is that recourse to the adopters' intentions constrains the interpreter's discretion and hence the imposition of her own values. Some methodological problems are presented by any interpretive strategy that seeks to specify the adopters' intentions.

The procedures by which the text of a proposed constitutional provision is adopted are usually straightforward and clear: a text becomes a law if it is adopted by the constitutionally prescribed procedures and receives the requisite number of votes. For example, an amendment proposed in Congress becomes a part of the Constitution when it is approved by two-thirds of the members of each House and ratified by the legislatures in three-fourths of the states, or by conventions in three-fourths of the states, as Congress may prescribe.

How does an intention acquire the status of law? Some interpreters assume, without discussion, that by ratifying the framers' language, the thousands of people whose votes are necessary to adopt a constitutional provision either manifest their intent to adopt, or are somehow bound by, the intentions of certain of the drafters or framers—even if those intentions are not evident from the text itself. This view is not supported by anything in the Constitution, however, or by eighteenth-or nineteenth-century legal theory or practice.

If one analogizes the adoption of "an intention" concerning the text of the Constitution to the adoption of a text, an intention would become binding only when it was held by the number and combination of adopters prescribed by Article V. This poses no particular difficulty for an interpreter who wishes to understand the general aims or purposes of a provision. Statements by framers, proponents, and opponents, together with the social and political background against which the provision was adopted, often indicate a shared understanding. But these sources cannot usually answer specific questions about the adopters' intentions. The intentionalist interpreter thus often engages in a degree of speculation that undermines the very rationale for the enterprise.

The adopters of a provision may intend that it prohibit or permit some activity, or that it not prohibit or permit the activity; or they may have no intentions at all regarding the matter. An intentionalist interpreter must often infer the adopters' intentions from opaque sources, and must try to describe their intentions with respect to situations that they probably never thought about.

The effort to determine the adopters' intentions is further complicated by the problem of identifying the intended specificity of a provision. This problem is nicely illustrated by an example of Ronald Dworkin's. Consider the possible intentions of those who adopted the cruel and unusual punishment clause of the Eighth Amendment. They might have intended the language to serve only as a shorthand for the Stuart tortures which were their exemplary applications of the clause. Somewhat more broadly, they might have intended the clause to be understood to incorporate the principle of ejusdem generis—to include their exemplary applications and other punishments that they found, or would have found, equally repugnant.

More broadly yet, they might have intended to delegate to future decision makers the authority to apply the clause in light of the general principles underlying it. To use Dworkin's terms, they might have intended future interpreters to develop their own "conceptions" of cruel and unusual punishment within the framework of the adopters' general "concept" of the clause. If so, then the fact that they viewed a certain punishment as tolerable does not imply that they intended the clause "not to prohibit" such punishments. Like parents who instill values in their children both by articulating and applying a moral principle, the adopters may have accepted the eventuality that the principle would be applied in ways that diverged from their own particular views.

Whether or not such a motivation seems likely with respect to applications of the clause in the adopters' contemporary society, it may be more plausible with respect to applications by future interpreters, whose understandings of the clause would be affected by changing knowledge, values, and forms of society. On the other hand, the adopters may have thought of themselves as more virtuous or less corruptible than unknown future generations, and for that reason may have intended this and other clauses to be construed narrowly.

How can an interpreter determine the breadth of construction intended by the adopters of any particular provision? Primarily, if not exclusively, from the language of the provision itself. Justice felix frankfurter wrote in National Mutual Insurance Company v. Tidewater Transfer Company (1949):

The precision which characterizes [the jurisdictional provisions] … of Article III is in striking contrast to the imprecision of so many other provisions of the Constitution dealing with other very vital aspects of government. This was not due to chance or ineptitude on the part of the Framers. The differences in subject-matter account for the drastic difference in treatment. Great concepts like "Commerce among the several states," "due process of law," "liberty," "property," were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this nation knew too well that only a stagnant society remains unchanged. But when the Constitution in turn gives strict definition of power or specific limitations upon it we cannot extend the definition or remove the translation. Precisely because "it is a constitution we are expounding," M'Culloch v. Maryland, we ought not to take liberties with it.

Charles Curtis put the point more generally: "Words in legal documents are simply delegations to others of authority to give them meaning by applying them to particular things or occasions.… And the more imprecise the words are, the greater is the delegation, simply because then they can be applied or not to more particulars. This is the only important feature of words in legal draftsmanship or interpretation."

This observation seems correct. Yet it is worth noting that the relative precision of a word or clause itself depends both on context and on interpretive conventions, and is often uncertain and contestable. For example, in united states v. lovett (1946) Justice Frankfurter characterized the bill of attainder clause as among the Constitution's very "specific provisions." Yet he construed that clause to apply to punishments besides death, ignoring the technical eighteenth-century distinction between a bill of attainder, which imposed the death penalty, and a bill of "pains and penalties," which imposed lesser penalties.

The effort to characterize clauses as relatively open or closed confronts a different sort of historical problem as well. The history of interpretation of written constitutions was not extensive in 1787. Marshall's assertion that it is the nature of a constitution "that only its great outlines should be marked" (McCulloch) drew more on theory than on practice. But Marshall and his successors practiced this theory. Whatever assumptions the adopters of the original Constitution might have made about the scope of their delegations of authority, the reconstruction amendments were adopted in the context of decades of "latitudinarian" constitutional interpretation. What bearing should this context have on the interpretation of provisions adopted since the original Constitution?

The intentionalist interpreter's initial task is to situate the provision and documents bearing on it in their original linguistic and social contexts. She can draw on the accumulated knowledge of American social, political, and intellectual history. Ultimately, however, constitutional interpretation is subject to the same limitations that attend all historical inquiry. Quentin Skinner has described the most pervasive of these:

[I]t will never in fact be possible simply to study what any given classic writer has sai.… without bringing to bear some of one's own expectations about what he must have been saying.… [T]hese models and preconceptions in terms of which we unavoidably organize and adjust our perceptions and thoughts will themselves tend to act as determinants of what we think or perceive. We must classify in order to understand, and we can only classify the unfamiliar in terms of the familiar. The perpetual danger, in our attempts to enlarge our historical understanding, is thus that our expectations about what someone must be saying or doing will themselves determine that we understand the agent to be doing something which he would not—or even could not—himself have accepted as an account of what he was doing.

Trying to understand how the adopters intended a provision to apply in their own time and place is, in essence, doing history. But the intentionalist interpreter must take the further step of translating the adopters' intentions into the present. She must decide how the commerce power applies to modes of transportation, communication, and economic relations not imagined—perhaps not imaginable—by the adopters; how the cruel and unusual punishment clause applies to the death penalty in a society that likely apprehends death differently from a society in which death was both more commonplace and more firmly integrated into a religious cosmology. The Court invoked difficulties of this sort when it concluded that the history surrounding the adoption of the Fourteenth Amendment was "inconclusive" with respect to the constitutionality of school desegregation almost a century later. Noting the vastly different roles of public education in the mid-nineteenth and mid-twentieth centuries, Chief Justice earl warren wrote in brown v. board of education (1954): "[W]e cannot turn back the clock to 1868 when the Amendment was adopted.… We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws." In sum, even the historian who attempts to meet and understand the adopters on their own ground is engaging in a creative enterprise. To project the adopters into a world they could not have envisioned borders on fantasy.

In an important lecture given in 1968, entitled "Structure and Relationship in Constitutional Law," Professor Charles L. Black, Jr., described a mode of constitutional interpretation based on "inference from the structure and relationships created by the constitution in all its parts or in some principal part." Professor Black observed that in McCulloch v. Maryland, "Marshall does not place principal reliance on the [necessary and proper] clause as a ground of decision.… [Before] he reaches it he has already decided, on the basis of far more general implications, that Congress possesses the power, not expressly named, of establishing a bank and chartering corporations: … [h]e addresses himself to the necessary and proper clause only in response to counsel's arguing its restrictive force." Indeed, the second part of McCulloch, which held that the Constitution prohibited Maryland from levying a tax on the national bank, rested exclusively on inferences from the structure of the federal system and not at all on the text of the Constitution. Similarly, Crandall v. Nevada (1868) was not premised on the privileges and immunities clause of either Article IV or the Fourteenth Amendment. Rather, the Court inferred a right of personal mobility among the states from the structure of the federal system: "[The citizen] has the right to come to the seat of government to assert any claim he may have upon that government, or to transact any business he may have with it…and this right is in its nature independent of the will of any State over whose soil he must pass to exercise it."

Citing examples like these, Professor Black argued that interpreters too often have engaged in "Humpty-Dumpty textual manipulation" rather than relying "on the sort of political inference which not only underlies the textual manipulation but is, in a well constructed opinion, usually invoked to support the interpretation of the cryptic text."

Institutional relationships are abstractions from the text and the purposes of provisions—themselves read on a high level of abstraction. The implications of the structures of government are usually vague, often even ambiguous. Thus, while structural inference is an important method of interpretation, it shares the limitations intrinsic to other interpretive strategies. It seldom yields unequivocal answers to the specific questions that arise in the course of constitutional debates.

For the most part, the Supreme Court—the institution that most systematically and authoritatively interprets and articulates the meaning of the Constitution—has construed the language, original history, and structure of the Constitution on a high level of abstraction. It has treated most provisions in the spirit suggested by Chief Justice Marshall in McCulloch v. Maryland. This view of the Constitution is partly a political choice, based on the desire to accommodate a venerated and difficult-to-amend historical monument with changing circumstances, attitudes, and needs. But it is no less a consequence of the nature of language and history, which necessarily leave much of the meaning of the Constitution to be determined by its subsequent applications.

Constitutional disputes typically arise against the background of earlier decisions on similar subjects. A complete theory of constitutional interpretation therefore must deal with the role of precedent. Interpreting a judicial precedent is different from interpreting the constitutional provision itself. A precedent consists of a judgment based on a particular set of facts together with the court's various explanations for the judgment. The precedent must be read, not only in terms of its own social context, but against the background of the precedents it invokes or ignores. Lon Fuller wrote:

In the common law it is not too much to say that the judges are always ready to look behind the words of a precedent to what the previous court was trying to say, or to what it would have said if it could have foreseen the nature of the cases that were later to arise, or if its perception of the relevant factors in the case before it had been more acute. There is, then, a real sense in which the written words of the reported decisions are merely the gateway to something lying behind them that may be called, without any excess of poetic license, "unwritten law."

The American doctrine of stare decisis accords presumptive but not indefeasible authority to precedent. Courts sometimes have overruled earlier decisions to return to what is said to be the original understanding of a provision. They have also overruled precedents that seem inconsistent with contemporary norms. For example, in harper v. virginia state board of elections (1966), the Supreme Court overruled a twenty-year-old precedent to invalidate, under the equal protection clause, a state law conditioning the right to vote in state election on payment of an annual poll tax of $1.50. After surveying intervening decisions protecting political participation and other interests, Justice william o. douglas concluded: "In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights.… Notions of what constitutes equal treatment for purposes of the Equal Protection clause do change."

The process of constitutional adjudication thus has a dynamic of its own. It creates an independent force which, as a doctrine evolves, may compete with the text and original history as well as with older precedents. Whether or not, as Justice john marshall harlan argued in dissent, Harper was inconsistent with the original understanding of the Fourteenth Amendment, the decision would have been inconceivable without the intervening expansion of doctrine beyond applications contemplated by the adopters of the Fourteenth Amendment.

Disagreements about the propriety of this evolutionary process are rooted in differing theories of constitutional law. To a strict intentionalist like Raoul Berger, the process appears to be simply the accretion of errors, which should be corrected to the extent possible. Others hold that the process properly accommodates the Constitution to changing needs and values. As Justice Holmes wrote in missouri v. holland (1920):

[W]hen we are dealing with words that are also a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our entire experience and not merely in that of what was said a hundred years ago.… We must consider what this country has become in deciding what the Amendment has reserved.

Chief Justice charles evans hughes's opinion in Home Building & Loan stands as the Court's most explicit assertion of the independent force of precedents and of the changing values they reflect. The Court upheld a law, enacted during the Depression, which postponed a mortgagor's right to foreclose against a defaulting mortgagee. In dissent, Justice Sutherland argued that the contract clause, which had been adopted in response to state debtor-relief legislation enacted during the depression following the Revolutionary War, was intended to prohibit precisely this sort of law. Given his intentionalist premise this disposed of the case. Hughes did not dispute Sutherland's account of the original history. Rather, he reviewed the precedents interpreting the contract clause to conclude:

It is manifest … that there has been a growing appreciation of public needs and of the necessity of finding ground for a rational compromise between individual rights and public welfare. The settlement and consequent contraction of the public domain, the pressure of a constantly increasing density of population, the interrelation of the activities of our people, and the complexity of our economic interests, have inevitably led to an increased use of the organization of society in order to protect the very bases of individual opportunity.… [T]he question is no longer merely that of one party to a contract as against another, but of the use of reasonable means to safeguard the economic structure upon which the good of all depends.

The views articulated by Holmes, Hughes, and Douglas reflect the Court's actual practice in adjudication under the bill of rights, the Fourteenth Amendment, and other provisions deemed relatively open-textured. The process bears more resemblance to common law adjudication than to textual exegesis.

In an influential essay, Thomas Grey observed that the American constitutional tradition included practices of nonoriginalist adjudication purportedly based on principles of natural rights or fundamental law, or on widely shared and deeply held values not readily inferred from the text of the written Constitution. Several of the Supreme Court's contemporary decisions involving procreation and the family have invoked this tradition, and have given rise to a heated controversy over the legitimacy of adjudication based on "fundamental values."

Originalist and nonoriginalist adjudication are not nearly so distinct as many of the disputants assume. Constitutional provisions differ enormously in their closed-or open-texturedness. Indeed, a provision's texture is not merely a feature of its language or its original history, but of the particular situation in which it is applied. One's approach to a text is determined by tradition and by social outlooks that can change over time. Depending on one's political philosophy, one may bemoan this inevitability, or embrace it. For better or for worse, however, Terrance Sandalow described an important feature of our constitutional tradition when he remarked that "[t]he Constitution has…not only been read in light of contemporary circumstances and values; it has been read so that the circumstances and values of the present generation might be given expression in constitutional law."

Most disputes about constitutional interpretation and fundamental values concern interpretation in particular institutional contexts. Today's disputes center on the judicial power to review and strike down the acts of legislatures and agencies and are motivated by what alexander m. bickel dubbed the "counter-majoritarian difficulty" of judicial review. Urgings of "judicial restraint" or of a more expansive approach to constitutional adjudication tend to reflect differing opinions of the role of the judiciary in a democratic polity and, more crudely, differing views about the substantive outcomes that these strategies yield. The question, say, whether Congress, the Supreme Court, or the states themselves should take primary responsibility for elaborating the equal protection clause is essentially political and cannot be resolved by abstract principles of interpretation. But this observation also cautions against taking interpretive positions based on particular institutional concerns and generalizing them beyond the situations that motivated them.

Constitutional interpretation is as much a process of creation as one of discovery. If this view is commonplace among postrealist academics, it is not often articulated by judges and it probably conflicts with the view of many citizens that constitutional interpretation should reflect the will of the adopters of the Constitution rather than its interpreters.

So-called strict construction is an unsatisfactory response to these concerns. First, the most frequently litigated provisions do not lend themselves to "strict" or unambiguous or literal interpretation. (What are the strict meanings of the privileges or immunities, due process, and equal protection clauses?) Second, attempts to confine provisions to their very narrowest meanings typically produce results so ludicrous that even self-styled strict constructionists unconsciously abandon them in favor of less literal readings of texts and broader conceptualizations of the adopters' intentions. (No interpreter would hold that the First Amendment does not protect posters or songs because they are not "speech," or that the commerce clause does not apply to telecommunications because the adopters could not have foreseen this mode of commerce.) An interpreter must inevitably choose among different levels of abstraction in reading a provision—a choice that cannot itself be guided by any rules. Third, the two modes of strict interpretation—literalism and strict intentionalism—far from being synergistic strategies of interpretation, are often antagonistic. (Although the adopters of the First Amendment surely did not intend to protect obscene speech, the language they adopted does not exclude it.) A strict originalist theory of interpretation must opt either for literalism or for intentionalism, or must have some extraconstitutional principle for mediating between the two.

To reject these strategies is not to shed constraints. The text and history surrounding the adoption of a provision originate a line of doctrine, set its course, and continue to impose limitations. Some interpretations are more plausible than others; some are beyond the pale. And the criteria of plausibility are not merely subjective. Rather, they are intersubjective, constituted by others who are engaged in the same enterprise. Beyond the problem of subjectivity, however, the demographic characteristics of the legal interpretive community gives rise to an equally serious concern: the judiciary and the bar more generally have tended to be white, male, Anglo-Saxon, and well-to-do, and one might well wonder whether their interpretations do not embody parochial views or class interests. The concerns cannot be met by the choice of interpretive strategies, however, but only by addressing the composition and structure of the institutions whose interpretations have the force of law.

Paul Brest
(1986)

(see also: Interpretivism; Noninterpretivism.)

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