Constitution as Literature
CONSTITUTION AS LITERATURE
Although presumably no one would say that the Constitution offers its readers an experience that cannot be distinguished from reading a poem or a novel, there is nonetheless a sense in which it is a kind of highly imaginative literature in its own right (indeed its nature as law requires that this be so), the reading of which may be informed by our experience of other literary forms. But to say this may be controversial, and the first step toward understanding how such a claim can be made may be to ask what it is we think characterizes imaginative literature in the first place.
It is common in our culture to marginalize "high literature," even while admiring it, and this mainly by thinking of it as offering nothing more than a refined pleasure, merely aesthetic in kind, and by assuming that it can therefore have nothing to do with practical affairs, with money or power. Those who think of themselves as literary people sometimes reciprocate with a marginalization of their own, speaking as if the merely practical offered nothing of interest to one who is devoted to what Wallace Stevens once called "the finer things of life." But this mutual marginalization impoverishes both sides, and the rest of us too, for it rests on a false dichotomy, between the aesthetic and the practical, which is like—and related to—those between fact and fiction, form and content, science and art.
For there is an important sense in which all literature is constitutive, great literature greatly so, of the resources of culture, which are simultaneously employed and re-made in the creation of the text, and of what might be called the textual community as well. (By this I mean the relations that each text establishes between its author and its reader, and between those two and the others that it talks about.)
Beginning with the second point, we can say that every text, whether self-consciously literary or not, establishes what Aristotle called an ethos (or character) for its speaker and its reader and for those it speaks about as well; in addition, it establishes, or tries to establish, a relation among these various actors. In this sense every text is socially and ethically constitutive, a species of ethical and political action, and can be understood and judged as such. In fact, we make judgments of this sort all the time—although perhaps crudely so—for example whenever we find a politician's speech patronizing or a commercial advertisement manipulative or when we welcome frank correction at the hand of a friend.
The first point, that the text reconstitutes its culture, is perhaps more familiar, for we have long seen works of art as remaking the culture out of which they are made. This observation establishes a significant connection between the Constitution (and other legal texts) on the one hand and literary texts on the other; for in both, the material of the past is reworked in the present, and part of the art of each of these kinds of literature is the transformation, or reconstitution, of its resources.
To say this is to leave open, of course, the question how, and by what standards, such judgments of art and ethics are to be made. To pursue this question would be the work of a volume at least; let it suffice here to say these are judgments that expression of all sorts permits and that expression of a self-conscious kind—in the law and in fiction, as well as poetry and history—invites. Perhaps we can say in addition that through the reading of texts that address this question in interesting and important ways we may hope to develop our own capacities of analysis and judgment. For present purposes, the point is simply to suggest that once literature is seen as socially and culturally constitutive, the connection with the Constitution, and with the judicial literature elaborating it, may seem less strange than it otherwise might.
This line of thought began by rethinking what we mean by literature. We might wish to start from the other side, by thinking again about our ways of imagining law. In our culture the law is all too often seen simply as a set of rules or directives issuing from a sovereign to be obeyed or disobeyed by those subject to it. This is the understanding—crudely positivistic—that for many years dominated much of our theoretical thinking and much of our teaching as well; it still holds sway deeper in our minds than we may like to admit. In fact, as the history of the Constitution itself demonstrates with exemplary clarity, the meaning of legal directives is not self-evident or self-established, but requires the participation of readers who offer a variety of interpretations, often in competition with each other. In this sense the readers, as well as the writers, of our central legal texts are makers of the law, and any view of the law and the Constitution should reflect this fact.
Law is perhaps best thought of, then, not as a structure of rules, but as a set of activities and practices through which people engage both with their language (and with the rest of their cultural inheritance) and with each other. One of its aims, deeply literary in character, is to give meaning to experience in language; this is the backward-looking role of law. When it looks forward, as it does above all in the Constitution (but also in contracts, statutes, loan agreements, and trust indentures), it seeks to establish through language a set of relations among various actors, each of whom is given by the legal text certain tasks, obligations, or opportunities that otherwise would not exist, but none of which can be perfectly defined in language. By its nature, then, the legal text gives rise to a set of rhetorical and literary activities through which alone it can work.
The point of such a line of thought is not to assert there is no difference between a judicial opinion, or a constitutional amendment, and a lyric poem—that would be silly—but that, by looking to the deeper structures of the activities in which we engage, we may see them as sharing certain concerns and do this in ways that improve our capacity to understand, to judge, and to perform them. We may perhaps free literature from the veil drawn over it by the claim that it is merely aesthetic and, at the same time, free law from its veil, made of the claims that it is purely practical, only about power, or simply a branch of one of the policy sciences.
The Constitution is constitutive in the two ways in which every text is: it recasts the material of its tradition into new forms, for good or ill; and it establishes a set of relations among the actors it addresses and defines. The first point is historical and quite familiar and usually takes the form of observing that the U.S. Constitution is not a wholly radical innovation, but built upon certain models—British and colonial—out of which it grew. To this fact indeed it owes much of its durability and, perhaps as well, much of its capacity to make what really was new (that is, dual sovereignty) both intelligible and real. The second point is really a suggested way of reading the Constitution: not as a document allocating something called "power" but as a rhetorical creation defining new places and occasions for talk, creating new speakers, and establishing conditions of guidance and restraint. All of these activities are imperfectly determinate and therefore call for the literary and rhetorical practices of reading and writing, intepretation and argument, that lie at the center of the law. Before the Constitution was adopted, none of its official actors existed; there was no President, no Senate, no Supreme Court. One of the effects of the text, as ratified, was to bring these actors into existence. But that is not the end of it; every act of these new actors depends for its validity upon a claim, implied or expressed, about the meaning of the Constitution itself, and every such claim is in principle open to argument. This is not to say that the Constitution is incoherent, but that as a work of language it has much uncertainty built into it. In fact, it has the only kind of coherence that is open for human institutions to have.
This brings us to the most obvious, and best rehearsed, connection between literature and the law, especially constitutional law, namely, both of these fields work by the reading of texts, or by what it is now the fashion to call "interpretation." That word, however, is not without its dangers, for it may be taken to imply that an interpreter of a text reproduces in her own prose, in her "interpretation," a statement of what the original text means that is in some sense complete and exhaustive, which can indeed serve as an adequate substitute for it. But in neither literature nor the law can this be done; any "interpretation" is of necessity partial, in the sense that it is both incomplete and motivated by a set of understandings and desires that belong to the present reader (formed though these are in part from the materials of the past). The "interpretation" of an earlier text does not so much restate its meaning as elaborate possibilities of meaning that it has left open; the new text is the product of a new time, as well as the old.
Not solely the product of the present and of its partialities, both law and literature are grounded on the premise that the past speaks to us in texts that illumine and constrain though always incompletely so. Accordingly, there are similar interpretive vices in both fields; for example, the attempt to collapse the text, with all its difficulties and uncertainties, into some simplified statement of its "plain meaning," all too often in denial of the uncertainties that both kinds of texts necessarily have and with them the responsibilities for judgment that they generate. Or we may seek simplicity in another direction, defining the meaning of the text by reference to something outside it (for example, the biography of the writer or the "original intention" of the framer or legislator), usually without recognizing that what we think of ourselves as simply referring to is also, in part at least, our own creation—a text which itself requires interpretation. The result of both of these methods is the hidden arrogation of power to the so-called interpreters, who pretend to yield to an external authority, but actually exercise the power in question themselves. Or the vice may be of an opposite kind: to see so much complexity and indeterminacy in a text as to make its responsible reading hopeless and to say, therefore, that nothing can be clear but our own desires (if those) and that no respect needs to be paid (because none can) to the putatively authoritative texts of others. At its extreme, the tendency of this method is to destroy both law and culture.
In both kinds of work the process of reading requires a toleration of ambiguity and uncertainty: a recognition of complexity, an acknowledgment that our own habits of mind condition both what we see in a text and what we feel about it, and a relinquishment of the hope of universal and absolute clarity. Yet it requires a recognition as well that the past can speak to the present, that culture can be transmitted and transformed, that it is possible, and worth doing, to look beyond ourselves to that which we have inherited from others. Here, in this uncertain struggle to discover and state meaning, to establish a connection with the texts of another, is the life of law and literature alike.
One feature of legal interpretation that is distinctive, or distinctively clear, and of special relevance to the Constitution is its idealizing character. The reading of legal texts inherently involves us in the expression of our ideals, and this in two ways. First, whenever we interpret the Constitution, or any other legal text, we necessarily imagine for it an author, with a certain imagined character and set of values, situated in a certain set of circumstances, and actuated by a certain set of motives or aims. For whatever our theory may pretend, the text cannot be read simply as an abstract order or as the decontextualized statement of an idea; it must be read as the work of a mind speaking to minds. Thus, in our every act of interpretation we define—indeed, we create—a mind behind the text. This is necessarily the expression of an ideal; although, of course, our sense of the past helps to shape it, and to call it an ideal is not to say that it is one that all people share. But we idealize the speakers of the law, or it is not law.
Second, the literature of the law is inherently idealizing in the way in which lawyers idealize their official audiences. We speak to a judge not as to the small-minded angry person we actually think him to be, but as his own version of the wisest and best judge in the world, as we imagine it. And the judge too speaks not to a world of greedy, selfish, and lazy people, as he may see us, but to an ideal audience, the best version of the public he can imagine. In both cases our acts of imagining are acts of idealization for which we are responsible; it is in this way the nature of law to make the ideal real.
James Boyd White
(see also: Constitutional Interpretation)
Leubsdorf, John 1987 Deconstructing the Constitution. Stanford Law Review 40:181–201.
Vining, Joseph 1986 The Authoritative and The Authoritarian. Chicago: University of Chicago Press.
White, James Boyd 1984 When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character, and Community. Chapter 9. Chicago: University of Chicago Press.