Postmodernism and Constitutional Interpretation

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POSTMODERNISM AND CONSTITUTIONAL INTERPRETATION

It has been said that postmodernism is a victim of its own diagnosis. Postmodern thought defies systematic accounts in part because it announces an intellectual and cultural condition in which such systematic accounts have become unbelievable. Postmodern thought announces the dissolution of the grand metanarratives of the Enlightenment. It presents a view of language and thought as incapable of stabilizing meaning. It holds the possibility of establishing first premises, origins, and foundations to be a kind of illusion. It reacquaints linear thought, conceptual hierarchies, and rationalism with their status as narratives. In such cultural and intellectual circumstances, the very identity of postmodernism becomes itself mysterious, mutable, and contestable. Anyone seeking to conceptualize postmodernism must thus confront the possibility that postmodernism itself announces the impossibility of such conceptualization. One practical effect is that the meaning of postmodernism is very much in the eye of the beholder.

The possible relations of postmodernism to constitutional interpretation are themselves multiple and contestable. From the perspective of the American constitutional tradition, however, it is possible to distinguish two very different kinds of postmodernism with very different implications.

Consider that the American constitutional tradition boasts a generous variety of interpretive techniques and approaches. Jurists, academics, politicians, and citizens have offered and invoked a multitude of interpretive techniques. Some believe that constitutional interpretation must focus exclusively or primarily on the words of the text. Others argue that the original intent of the Framers must be consulted. Still others believe that what matters is the linguistic usage at the time the Constitution or its amendments were adopted. Some have argued that the problem of constitutional interpretation must be understood in light of the conundrums of judicial review. More modestly, others have viewed the problem of interpretation in terms of the authority and competencies of the various constitutional actors—the various federal branches, the states, groups, and individuals. Then too, there are those who hold that constitutional interpretation must follow popular consensus. Another view holds that the Constitution must be interpreted in light of fundamental political values such as justice or equality. Yet another approach lies in recognizing that all or some of these approaches are appropriate.

For most of the second half of the twentieth century, this eclectic mix of interpretive approaches has been viewed in terms of a characteristically modernist anxiety: The primary question for jurists, academics, politicians, and citizens alike has been which is the correct mode of interpretation? This question has featured prominently in the courts, in scholarship, in judicial confirmation hearings before the U.S. senate, and in the editorial pages.

One postmodern perspective—call this "weak post-modernism"—displaces this question to affirm that constitutional interpretation encompasses all of these modes. On this view, to do constitutional interpretation is nothing more than to engage in one or more of these modes of interpretation. The question, "which is the right mode of interpretation?" becomes itself another interpretive approach—no more privileged, no less legitimate than the others. It becomes one more "move" among others.

This weak postmodernism would view the eclectic mix of interpretive approaches as a function of different perspectives. The different approaches differ because the Constitution is seen in terms of different interests, concerns, hopes, and fears. This kind of postmodern thought is congenial to the practice of constitutional interpretation. It does not threaten the authority of the Constitution nor the possibility of arriving at coherent and shared meanings. To the contrary, the American tradition of constitutional interpretation is arguably already postmodern and has been so for a long time—long before "postmodernism" became a fashionable term.

There is, however, a "strong postmodernism" much more disturbing to the enterprise of constitutional interpretation and constitutional law. This strong postmodernism puts in question the identity of what it is that is being interpreted. Just about any jurist, academic, politician, or citizen would answer that it is "the Constitution" that is being interpreted. But a strong postmodernism would ask, What is the identity of this "Constitution"? Is it a text, a political instrument, an institutional organization, a site of political contestation, an expression of cultural mythology—all or some of these things and perhaps many more?

This strong postmodernism effectively transposes the entire question of how to interpret (a question of methodology) into a question about what is being interpreted (a question of identity). This strong postmodernism leads to the view that the Constitution is not a thing that is there independently of or prior to the action of interpretation. Rather, this strong postmodernism reveals "the Constitution" as a kind of cultural–intellectual artifact that is itself a construct, a creation, of the various interpretive approaches. On this view, the Constitution is not so much interpreted, as it is continuously created and re-created by those who claim to be interpreting it.

This kind of postmodernism is much more difficult, perhaps even impossible, to reconcile with American notions of constitutionalism and the rule of law. This strong postmodernism denies that the Constitution is a source of authority and meaning that exists independently of present acts of interpretation. Instead, this strong postmodernism affirms that present acts of interpretation are effectively a kind of cultural and intellectual authorship.

In terms of this strong postmodernism, the very idea of a postmodern constitutional interpretation is an oxymoron—akin to an atheistic religion. To the extent that this is right, the attempt to integrate postmodernism and constitutional interpretations would lead to a serious deformation of one or the other, and perhaps both.

Pierre Schlag
(2000)