The Constitution as Ritual

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15 Responses

  1. Bruce,

    Fantastic post, but I have a question about this paragraph:

    If Fish were correct–that the only possible interpretation of a sentence is the one intended by the speaker–then once one receives definitive proof of what was intended, that should end all arguments as to what the sentence meant. But of course that’s ridiculous. People have long, drawn-out, and perfectly reasonable arguments all the time of the form: “That may have been what you intended, but that’s not what you said!” In other words, the sentence you spoke has a meaning other than what you intended, and I’m justified in interpreting it that way regardless of what you may have meant. This debate is over whether speaker’s meaning coincides with sentence meaning–the meaning a reasonable contemporary listener would place on it–and if not, which takes precedence. As near as I can tell from his article, Fish’s argument would make all such disputes meaningless babble. That’s a problem for Fish.

    I don’t see why this is a problem for Fish at all, regardless of whether we are talking about a conversation or a treasure map or a constitution. Under what conditions is it interpretively legitimate to substitute sentence meaning for speaker meaning when speaker meaning is clear — and different? Consider your example, where you respond to my ex post intention by insisting “That may have been what you intended, but that’s not what you said!” Fair enough — but if I now apologize for being unclear and inform you in no uncertain terms that I did not mean what you thought I meant, how could you justifiably respond “sorry, I’m going to go with my original interpretation”? How can you claim to be “interpreting” my statement in that situation, given that you are intentionally giving meaning to my words that you (now) know I did not intend?

    Fish was my mentor when I was a literature grad student, so forgive me if I’m missing something obvious. Your thoughts would be most appreciated.

  2. Patent Litigators Are Asses says:

    In other words, the sentence you spoke has a meaning other than what you intended, and I’m justified in interpreting it that way regardless of what you may have meant. This debate is over whether speaker’s meaning coincides with sentence meaning–the meaning a reasonable contemporary listener would place on it–and if not, which takes precedence. As near as I can tell from his article, Fish’s argument would make all such disputes meaningless babble. That’s a problem for Fish.

    I agree with Kevin Jon Heller, and I will call it the “Ass Rule,” because some people insist on being asses. Some people, mainly college students, will insist on being asses, and deliberately misintepret your statements to make you look like an ass. If you are a sailor who says, “I like bouys,” you can bet that a rumor will start that you are a pederast. This is not legitimate interpretation; it is assinine. We should call it what it is and avoid teaching students to think this way. Especially because litigators, especially patent litigators, use this to destroy our economy, and it is part of the reason we are currently in a recession.

  3. Lori Ringhand says:

    Mitchell Berman’s article, Originalism is Bunk, develops this argument. One of Berman’s goals is to highlight the importance of the move from “originalism is the only way to determine meaning” to “originalism is the best way to determine meaning”. The later position, by acknowledging that other ways of determining meaning are logically possible even if not desirable, moves the argument for originalism from a premise of logical necessity to a pragmatic debate over which of the possible ways of determining meaning is best. As such, it must compete for its position an interpretive hierarchy, not assume it.

  4. Chris says:

    I think that the Constitution actually does get its authority today from explicit consent–the consent of office-holders who take the Article VI oath. However, as a result, the Constitution really only legitimately binds those who take the oath, not the population in general.

    I think that the Constitution’s indexical language–forms of “this Constitution,” “we,” “here,” and “now,” most prominently the “this Constitution” oath requirement of Artcle VI–implicitly define “the Constitution” as a historically-situated text. Accordingly, the historic textually-expressed sense (but not the originally-intended or originally-understood reference!) should be interpretively supreme. This is a different argument from either the “originalism is true by definition” or “originalism would produce the best results” arguments that Berman considers. I’m still working on that paper, though.

  5. Patrick S. O'Donnell says:


    Your example serves to answer your question, as the Constitution cannot be interpreted in *that* sort of conversational or dialogic manner, for there are no longer the original interlocutors available for interrogation or clarification of meaning in just *that* sort of way. We lack the ability to clarify intentions in just the way you cite given the nature of the Constitution as a text, hence the dynamic not static character of foundational rules and principles, and hence the continual revision and adaptation of the law, a process that serves to reinforce or renew the legitimacy of a Constitution ultimately grounded in “popular sovereignty.” In other words, it does make a world of difference whether or not we’re referring to an ongoing conversation among interlocutors or the interpretation of a text. Indeed, this is why, with Philip Bobbitt, we can tentatively identify at least five kinds of constitutional *argument* (historical, textual, doctrinal, prudential and ethical [I would prefer the latter be christened ‘moral’ arguments) qua *argument.* Whatever the meaning of justice enshrined in the Constitution we have, importantly, been historically free to deepen and widen its meaning over time, given our freedom, as judges or as citizens, to reflect on moral principles (cf. here Dworkin’s conception of civil disobedience). And this provides one indirect reason to account for the fact that although laws may be repealed or overturned on the basis of fresh (changing or contemporary) Constitutional interpretation, we do not speak of those earlier laws as losing their status *as* laws.

  6. Tim says:

    This post also points up the consequences of searching for resolutions to constitutional problems merely in the meanings of written texts. The example of social norms (the single-file line instead of the semi-circular scrum) is instructive, but we also have to remember that in every case, what is at issue is not merely whether one is bound by the text (or the judicial act of interpreting that text) but the paradoxical appeal to change the shared understanding of the text as it also relies on the force/legitimacy of the institution to guarantee that new understanding.

    The interesting thing about the American case is that it has been able to do this so successfully for so long: the rights of the Constitution are seared into our collective political imagination even as disputes about their application continue time and again.

    The strength of Fish’s argument doesn’t seem to be his decision to describe the Constitution as a treasure map instead of a Catholic Confirmation ritual (the entire structure of that argument/criticism replicates the “definitional argument” fallacy that Bruce wishes to avoid– “The Constitution is X, not Y, and so therefore what follows from describing it as Y must be incorrect”), but in its identification of the Constitution as the provider of heuristic devices for negotiating contemporary political problems. This model of “heuristic devices” contrasts with a strict “social contract” model, the weaknesses of which Kevin and others have noted (I say X but intended X2; you hold me to X because I said it, and ask the state to enforce it in the face of any and all other interests).

    And the point here is not that the Constitution is a set of heuristic devices instead of a contract, but that it is both. Any legal dispute relies on this hybrid status when it asks the judiciary to bring the force of the state to bear to resolve the problem, because every case arrives with contingent facts. One example of this would be the 1983 cases that allow for liability when private actors conspire with state actors to deprive citizens of rights, even though the State Action doctrine arguably prohibits that result. The answer to this controversy is not found merely in the text of the Constitution, nor in the notes and papers interpreting the words or the authors’ meaning, but also in the facts of the case itself.

    Contrary to some of its critics (and possibly Fish or those inspired by him), this position does not necessarily require that we abandon intention or meaning-seeking as a source of dispute resolution– there are times where the words or agreements are what they are, and alternate interpretations are either highly unlikely, unwise social policy, or both. But it points to the need for judges, lawyers, and students of the law to remember that the contexts matter, and any interpretive shortcuts that admit no flexibility to deal with future contingent conflicts of core Constitutional values (apologies for the excessive alliteration) are unwise.

  7. Patrick S. O'Donnell says:


    If perhaps you’ve not familiar with it and may be interested, there’s a nice argument against the idea of the Constitution as a “contract” in Russell Hardin’s Liberalism, Constitutionalism, and Democracy (1999), especially pp. 82-140.

  8. Patrick S. O'Donnell says:

    erratum: “you’re”

  9. Bruce Boyden says:

    Wow, great comments. I’ll just respond to a couple of points:

    Kevin, perhaps intuitions vary on this more than I thought. But I believe there is a widely engaged-in debate in which Person 1 says something, Person 2 objects, Person 1 claims that he or she intended a different meaning, and Person 2 claims that the sentence spoken has a different meaning than the one intended by the speaker. This is the point of the oft-quoted joke in Alice in Wonderland:

    …”There’s glory for you!”

    “I don’t know what you mean by ‘glory’,” Alice said.

    Humpty Dumpty smiled contemptuously. “Of course you don’t — till I tell you. I meant ‘there’s a nice knock-down argument for you!'”

    “But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.

    “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”

    “The question is,” said Alice, “whether you can make words mean so many different things.”

    “The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

    If I understand Fish correctly, this isn’t a joke; Humpty Dumpty is entirely correct. He can make “glory” mean whatever he wants. But I think most people would say that Alice has a reasonable objection that “glory” simply doesn’t mean “a nice knock-down argument,” despite clear knowledge that’s what Humpty intends by it. The fact that a sentence must have an intentional speaker to mean anything does not mean that the sole source of that meaning is the speaker’s intent.

    Lori, I agree Berman’s article is excellent on the intentionalist argument. In particular, he takes what I call the intentionalist “defintional” argument and breaks it down into premises, which he then attacks. I don’t think Berman’s attack works as well against “definitional” original public meaning originalism, though. What is needed there is an alternative to all original meanings, which a garden-variety counterexample just doesn’t have, because most everyday sentences have short shelf lives.

    Chris, we’re in agreement on oath-takers, but I would extend the relevant boundary beyond those who formally swear to uphold the Constitution, to all those who are governed by it, and thus members of the community established by it. “We the People” is broader than just “We the Oath-Takers.”

    Tim, in response to your point that my argument “replicates [Fish’s] ‘definitional argument’ fallacy”: I didn’t intend to claim that arguing from a definition is fallacious. If everyone agrees on the definition, it’s perfectly fine to argue from it. All arguments have a foundation somewhere, and a definition can be as good a foundation as anything else. The problem for definitional arguments comes when the proposed definition is either contested or fails to completely occupy the relevant field. The latter is my point both against Fish and against New Originalists: I just don’t think that Constitutional sentences are relevantly similar to the type of sentences they have in mind when they define interpretation.

  10. Chris says:

    “[W]e’re in agreement on oath-takers, but I would extend the relevant boundary beyond those who formally swear to uphold the Constitution, to all those who are governed by it, and thus members of the community established by it.”

    I don’t think we can be in agreement regarding oath-takers, since I think that oath-takers are bound to take the Constitution on its own terms, and that once we unpack the constitutional indexicals, we see that the Constitution defines itself as a historically-situated text. That would mean that oath-takers should be textualist semi-originalists. But it wouldn’t make sense for the broader community to be bound by a different Constitution than the one that sets the rules for the government.

    I’m not opposed to the idea that the Constitution has some sort of proper authority over those who don’t swear to support it, but I think the central case of its legitimate authority is the person who does consent explicitly. We should define the nature of the Constitution by looking first at the clear cases of its binding authority, not the more doubtful case of the general citizenry.

    “‘We the People’ is broader than just ‘We the Oath-Takers.'”

    Actually, I don’t think that today’s oath-takers are part of “We the People” at all. One of the things I’ll argue in my indexicals paper is that the Preambulatory We isn’t intergenerational–it refers to the enactors of the Constitution, not the people today. Why? For one thing, the Preamble refers to “our posterity,” which would not make sense if the Preambulatory We is already intergenerational. Second, the Preambulatory We ordain and establish the Constitution. But article VII says that the ratifications of the state conventions are sufficient for the establishment of the Constitution. Because the Preambulatory We the People are the Article VII ratifiers, they are confined to the founding.

  11. Bruce Boyden says:

    Chris, I’m looking forward to reading your papers on this, which sound fascinating. But in the meantime, on the “We the People” language, I’ll just raise a couple of concerns: To the extent we’re arguing about what the original meaning of the preamble is, I think we’re back at square one. That is, I think the argument that the preamble captures something significant about how the Constitution is to be read must depend on a prior argument about how the preamble is to be read. I misread you above to be claiming that something significant happens for interpretation during oath-taking, which might provide that prior step, but now I see you’re claiming that something significant happens for legitimacy, not interpretation.

    Second, I’m not sure the preamble gets you where you want to go. If every generation reaffirms the Constitution, then each succeeding generation is “We the People,” concerned about its posterity. I don’t see how this creates any problems for making sense of the preamble.

  12. Chris says:

    That’s right, I’m assuming that we can tell what the Preamble (and other words like “now” and “here” and especially “this Constitution”) mean without adopting a particular theory of meaning. But I think the combination of “our posterity” and the Article VII rule on “establishment” are enough, on any theory of meaning, to suggest that the Preambulatory We is historically-confined. (Other indexicals, like the use of “now” in a way that obviously refers to the time of the founding, confirm this reading.)

    Now, I don’t think the historically-confined Preambulatory We means that people today, or the sum of all the generations of Americans together, don’t form an important political community. So the group of people who agree with the Constitution today might justifiably be called “the People.” It’s OK to use that term that way. I’m just saying that, in the Preamble, the constitutional author is historically confined. That’s important only because of the relationship between the Preamble and “this Constitution” which the Preamblulatory We ordain and establish; a historically-confined Preambulatory We fits with a historically-confined “this Constitution,” while an intergenerational We the People fits with a Rubenfeldian or Straussian Constitution-as-collection-of-common-law-concepts constitutional ontology.

    It would help to distinguish three views on what “We the People” in the preamble means. My view is that it is We the Ratifying People at the time of the Founding. Rubenfeld’s view is that it is an intergenerational entity, including both the founding generation, who supply paradigm cases, and later generations who supply covering principles and other unforeseen additional cases. A third view, which Bruce sketched above, is that “We the People” includes all the people living under the Constitution at any particular time. So at the Founding it included certain people, in 1868 it included certain others–but not the Founders–and today it includes an entirely different set of people still.

    Now, I agree with Bruce that the the each-generation-is-We-the-People theory might make sense of “our posterity.” But it doesn’t make sense of Article VII, because the people today don’t establish the Constitution in state-by-state ratifying conventions. The bit about posterity is mainly useful in rebutting Rubenfeld’s intergenerational-We-the-people theory. Again, the “posterity” point isn’t the only thing I’m relying on; the other indexicals can help confirm the same conclusion.

  13. Bruce Boyden says:

    I’m still not sure I see a problem. Article VII talks about sufficient conditions for the effectiveness of the Constitution. Those conditions were met in when it was ratified the ninth state. And that Constitution is still in effect today, as affirmed by “We the (current) People”.

    I think we may be talking about a variety of the Theseus’s ship problem here. My intuition is, it still makes sense to refer to the ship as “Theseus’s ship” even after all of the individual planks have been replaced.

  14. Chris says:

    Hmm. I’ll think about it. I was mainly thinking about Rubenfeld’s views. Maybe I’ll have to rely more on a consideration of first-person language in other constitutions & that sort of thing. Here’s one thought. If “We the People” isn’t a new entity with each generation, then it again seems strange to distinguish between “We the People” and “our posterity,” just like it would be strange to distinguish between, say, the structural intgrity of the ship of Theseus and the structural integrity of the thing that exists after all the planks are replaced. If the ship of Theseus just is the thing that exists after all the planks are replaced, then it would only make sense to speak of the structural integreity of the ship of Theseus, simpliciter. Likewise, if the founding-era, Article-VII-ratifying We the People is the same entity as today’s living-under-the-Constitution-in-2008 We the People, then the Preamble should just say “secure the blessings of Liberty to ourselves,” simpliciter, not “secure the blessings of Liberty to ourselves and our posterity.” It would be weird to talk about doing something for “myself and my future self,” unless I were suggesting some sort of Parfitian distinction between the two. But as I say, I’ve got to think about this some more. Could be making too much of this. “Now” is the one that I think is the killer.

    I’m certainly happy to have an excuse to talk about the ship of Theseus. The earlier, longer version of this compared the structure of the ship of Theseus with corporate culture that can survive the replacement of all of the particular corporate employees who work at a particular time. I took it out in part on the advice of a certain future resident of Milwaukee (though it’ll show up in the sequel). Maybe if he writes some hot new narrative-style paper about law school faculty cultures, he’ll use the analogy himself.

  15. Chris says:

    FWIW, I’ve put my “this Constitution” article on SSRN: