Hermeneutics engages priests and jurists with the same intensity. After all, the most important texts that humankind has ever had to interpret were Sacred Scripture and codes of law.
Even before going to the text of the Constitution, I venture an application of Prof. Hart’s celebrated distinction between “primary rules” and “secondary rules.” Law is often taken to be a collection of rules about what to do and what not to do. But Hart, in A Concept of Law, argues that this will not do and will never, of itself make a legal system come about. How, for one, does one recognize which are rules and which are not? Why does one treat the penal provision of adultery differently from the Catholic precept of abstinence on Fridays of Lent? The clear answer is because we recognize the first as a legal norm, the second as a religious teaching. So, Hart argues, one needs another layer of norms that will include norms for recognizing primary norms, as well as norms governing the change and the application of primary norms. When the Constitution then requires that any search be authorized by court-issued warrant (a guarantee that our draft in the Consultative Committee has both expanded and strengthened), that is a primary rule. When it vests legislative power in Congress of the Philippines and provides for the passage of law, such provisions constitute rules of recognition and are, in Hart’s terms, secondary rules. The Constitution then, is a combination of primary and secondary rules. While I absolutely have no reservations about arguments in favor of textualism, I must point out that underlying the written text of the Constitution is an underlying unwritten “social contract” —the basic norm of recognition: the social covenant to recognize the Constitution as fundamental law! That, I repeat, is not a point against textualism. It does however underscore the role of the unwritten, the importance of the tacit. There would be neither motive nor reason to write the text of the constitution if there were no antecedent social covenant to accept the Constitution as fundamental law and to abide by it.
What does a Constitutional provision mean? In fact, the very question is difficult. Philosophy has taught us sufficiently not to identify textual meaning with “authorial intent”. And so while we find the Supreme Court often mining the records and the journals of the Constitutional Commission for clues to the construal of a particularly nettlesome provision, it is as fundamental a precept of constitutional construction that what the constitution means must principally be sought from the text of the charter itself! In fact, where there is a conflict between what the authors of the 1987 Constitution claim that they meant, and what the text communicates, it is the latter that prevails. Constitutional interpretation should never be a matter of “mental archaeology.” But the temptation persists—to vainly look for the meaning of the Constitution in what its authors were thinking when they wrote the text. Aside from having been shown to be both impossible and idle, it also ignores the fundamental hermeneutic principle known as “the autonomy of the text.” When the text has been written (or spoken), the text enjoys an autonomy that severs it from whatever mental processes accompanied its production on the part of its authors.
There will then be both continuity and distance between the thought of the authors of the constitutional text and the thought of those who must either interpret, apply or invoke the text: continuity because the text of the Constitution stands as the ultimate limit of interpretation, and distance because of the distinct horizons of writers and readers. So it can very well be the case that a judge, or a law professor, or a law-enforcer take a constitutional provision to mean something that the authors may not have exactly meant (or intended) because ultimately it is not the authors’ intent that is pivotal, but the text.
In this respect, I shall advert to the role of the Supreme Court. In Habermas’ ponderous volume, Between Facts and Norms: Contributions to A Discourse Theory of Law and Democracy, he thinks of a constitutional court as the apex of a legal system’s self-reflection, and the guardian of the consistency of the legal system. Obviously, then, in its task of interpreting the Constitution, the Supreme Court will not only endeavor to be faithful to the text of the constitution but will construe its provisions in such wise as to achieve a consistent whole!
Aside from being a logical ideal, consistency is necessary to enable law to fulfill its functions of stabilizing behavioral expectations and enablintg society to cohere.
And this is where I rejoin those who correctly hold that we need not make a choice between a textual approach and a structural interpretation of the Constitution. This to me is exactly what the text-context dynamic is all about. And so while we have always taught our law students that the only constitutional court is the Supreme Court and that all other courts may be abolished by statute (except perhaps for the Sandiganbayan that the 1987 Constitution expressly ordains should continue in its operation), the fact is that, structurally, the Constitution does require the existence of lower courts. When it vests the Supreme Court with appellate jurisdiction, the necessary structural requirement is that there are lower courts, otherwise the grant of appellate power is vacuous.
But this brings me to the last point I to which I respectfully invite attention: It has always been the persuasion of what has been known as “radical hermeneutics” that because texts are always interpreted in contexts, and contexts are open-ended (as all life is!), then there can be no determinate meanings, if by determinate one means “fixed” and “unchanging.” That is not to say that there are no fixed reference points. In the area of human rights, for one, there is agreement that reason makes demands—such as the protection of human life and the guarantee of fundamental liberties. Whether one refers to these as demands of natural law or as the precepts derived from practical reasonability, the point is that the textual guarantees and liberties enshrined in the constitution demand some clear, determinate juridical consequences.
Our commitment to the text of the Constitution should allow it to be what every constitution ought to be—the ultimate socially structuring document of the body-politic. And if that should be so, then rather than feeling threatened about expanded or even evolving meanings of constitutional provisions, we should be excited in the same measure that we should be critical!