Ruth Ginsberg and Antonin Scalia gave life to the Supreme Court of the United States precisely because they did not agree with each other on so many issues “of transcendental importance.” Even so, that did not prevent Madame Justice Ginsberg from being effusive in her praise of the intellectual integrity of her departed colleague, Mr. Justice Scalia. “The Constitution is a legal document, and it says what it says, as it does not say what it does not say.” That is a dictum attributed to the late Justice Scalia, hated and derided by many because he had very strongly held convictions. This is a sad world, indeed.
Obviously, the “originalism” of Mr. Scalia was the polar opposite of the “living document” theory: the view that the Constitution has to be a document for our time, and therefore more responsive to present-day realities than faithful to the intent of its authors. Both are theories of hermeneutics, not only legal hermeneutics, but the whole gamut of interpretation. It is an enterprise that goes back, at least in significant form, to Aristotle’s Peri Hermeneias, the Stagirite’s treatise on hermeneutics. Hans Georg Gadamer and Paul Ricoeur are theorists of hermeneutics by whose precepts much of interpretation goes today.
One of these is the important thesis that to understand a text, one does not have to be engaged in “mental archaeology,” the often futile—and really useless— attempt at divining what author was thinking when he wrote what he wrote. The text, Ricoeur maintains, has a life of its own, independent of the author, the moment it is written. Interpretation then does not consist in getting into the mind of the author to be able to understand the document.
But before “living document” theorists prematurely invoke the philosophic authority of Gadamer and Ricoeur, it will be well to remember that for both, there can be no arbitrariness in respect to the text. The latter is an objective fact against which all arbitrary interpretation runs, and Gadamer usefully points out that no matter what we project to be the meaning of the text, not every projection will succeed because some of it will run against the text itself. Interpretation is interpretation of a text, not free from the text. Equally instructive is Gadamer’s explanation of what happens when we read and interpret a document like the Scriptures or the Constitution: the horizon of the text and the horizon of the reader fuse, and only when there is a fusion of horizons can interpretation be truly the “reading” and not the “writing” of a text.
I do not read Antonin Scalia as an advocate of that kind of “mental archaeology” that Ricoeur deems pointless. He was rather the sagely voice against exuberance and arbitrariness in respect to the interpretation of the Constitution. He was the sage who was not going to betray the horizon of the framers of the Constitution, and everything that the document stood—and stands—for.
But why was the opposition between Scalia and Ginsberg respectable? It is as respectable as every confrontation between philosophies is respectable. That is what makes all the difference. When one’s reading of the Constitution arises from a consistent political philosophy, or juridical theory, or hermeneutic theory, one is offering a principled interpretation, no matter that it may not be popular. It is completely different when there is no discernible philosophy that supports a proffered reading of the Constitution, but an unadulterated and barely concealed concession to partisanship and patronage.
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