Deconstruction

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DECONSTRUCTION

The topic of deconstruction and the Constitution arises chiefly because of work done since 1978 by the left-oriented scholars of the Conference on critical legal studies, who have applied modern continental critical theory, including literary theory, to Anglo-American law. The issues involved also descend from the rise of pragmatism in American philosophy in the late nineteenth century and its influence on American jurisprudence via the skepticism of oliver wendell holmes, jr. , and the later adherents of legal realism. This dual ancestry is not coincidental. Deconstruction was popularized by the French critical philosopher Jacques Derrida, especially in his 1974 book Of Grammatology. Though most influenced by Friedrich Nietzsche, Derrida also drew on a forebear of American pragmatism, Charles Peirce.

Like many pragmatists, deconstructionists take a radical stance toward the epistemological doubts that have occupied modern philosophy since Descartes. In their view, although the various ways in which human minds represent their experiences to themselves (from organic sensations to oral languages, to conventional writing) may bear some complex relationship to an external physical reality, they never provide a direct, unmediated grasp of it. The visual sensation of seeing the color "red," the sounds of the English adjective "red," and the written word "red" may somehow signify to us something that is really out there, but we cannot claim that our physical sensation or our oral or written terms are full or necessary representations of it. The something might cause different physical sensations in different individuals or sensory apparatuses, and certainly it can be signified by different sounds or written marks. All this is uncontroversial in most modern epistemologies.

What deconstructionists distinctively stress is that our sense of the meaning of our particular representations, our regard of those representations as signs for external somethings, is heavily dependent on the relationship of the representations or signs to some existing system of representations or signs. Obviously, the meaning readers of written English assign to the written marks "red" requires familiarity with the system of signs that is written English. The meaning speakers of English assign to the spoken sounds of "red" requires knowledge of English as a system of sound signs. Even the visual sensation we call "red" has its meaning for us only by reference to other sensations and to a system of terms that classifies and labels those sensations for us, a system that partly constitutes our knowledge of colors. The sensation, too, is for us a sign that gains much of its sense from a system of signs.

Deconstructionists therefore see all human experience as heavily defined and constructed by vast webs of signs that get their meaning more clearly from their relationship to other signs than from reality. We still presume that some such reality exists, that human minds have formed systems of signs to give reality a measure of order and meaning, and that reality can somehow prompt sensations in us that may persuade us to revise the signs we use to depict it. But deconstructionists stress that our choice of particular signs to represent reality is always in some measure arbitrary, influenced more by the preexisting set of signs available to us than any self-evident demands of external reality. Hence, we cannot have much confidence that any set of signs is an accurate representation of reality. All such systems are but partial interpretations, discernibly built out of other partial interpretations that at best show aspects of the world, and those through a glass darkly.

Yet we persist in taking our interpretations, our systems of signs, to be something more. We present them to ourselves (or they present themselves to us) as reliable windows or maps revealing an external reality of matter andor reason that can be rendered present to our minds and senses. Like Nietzsche and the pragmatists, deconstructionists urge us to abandon this old dualistic "metaphysics of presence," in which we try to pierce through our mental limitations to grasp fully an external truth beyond. Instead, we should admit that our world of experience is always composed largely of questionable interpretations, partial perspectives, and contingent systems of signs. We should therefore turn inquiry away from the "reality" for which signs allegedly stand, toward a greater understanding of the components, possibilities, and limitations of systems of signs. The world will then be seen as sets of signs or texts, melding philosophy and other modes of inquiry into literary theory.

Deconstruction is one means toward a better understanding of these texts. One deconstructs something—a novel, a treatise, a law, a political institution—by viewing it as a system of signs and unraveling it to reveal its reliance on preexisting systems of signs to make it meaningful; its consequent vulnerability to multiple meanings, depending on which of the systems of signs it incorporates, is stressed, along with its embodiment of those systems' biases and of the contradictions within them and among them, and thus its inevitable incompleteness and incoherencies. To be sure, one may also find insights that seem worth preserving. But ultimately one can always show any text to be another partial, ambiguous system of signs constructed out of other such systems.

Unlike the early scientific resolutive-compositive method of inquiry, moreover, the point of deconstruction is not to give us a fuller understanding of how the object of analysis functions while otherwise leaving it intact after we mentally reconstruct it. Deconstruction always invalidates much of what a text initially appeared to do or say, altering our sense of it. We may then strive to construct new accounts of the text's themes that are more comprehensive because they encompass what we have learned; but those accounts will ultimately remain partial interpretations.

The appeal of all this for critical scholars in Anglo-American law should be clear. National legal systems can plausibly be viewed as systems of signs for which people make strong claims. They are said to have considerable internal coherence and to be largely accurate representations of external social and political worlds and of appropriate moral principles. Those claims seem integral to a legal system's very legitimacy. But, via deconstruction, one can often show that many legal terms derive from preexisting discourses identified with particular ruling groups and that they express those groups' interests more clearly than they express any objective moral principles. Legal language can also be shown to be subject to multiple inconsistent interpretations, depending on which elements are stressed. Thus, the law may seem indeterminate or incoherent, gaining definition only from those who wield enough power to make their interpretations stick.

Critical legal scholars have deconstructed the doctrines of judicial and administrative law in numerous areas of American law, such as contracts, property, and criminal law, in just these ways. At times, however, they have moved too quickly to two types of conclusions that represent shallow readings of the implications of deconstruction. Some align deconstruction with Marxism, attempting to show that legal doctrines at bottom express capitalist class interests rooted in material relations of production. Such readings have some force, but in deconstructionist terms they do not go far enough unless they concede that the various Marxisms are but further systems of signs and that Marxist claims to have grasped the truth of external material reality are highly vulnerable to deconstructionist debunking. Other critical legal scholars write as if the American legal system is peculiarly guilty of insuperable internal contradictions and ambiguities, implying that a system ordered on different principles would overcome these problems. But again deconstruction suggests that although there are more or less encompassing interpretations, all systems of signs will always be vulnerable to demonstrations of their inadequacy.

These points can be exemplified by showing how we might begin deconstructing the Constitution. Its preamble says that "We the People of the United States" are ordaining and establishing the document. Those words seem to assume a traditional understanding of flesh-and-blood persons consciously using words as authoritative signs, accurately representing themselves and their thoughts and giving new order to their lives.

But deconstructing interpreters can challenge that picture in all the ways just suggested. "We the People" is, after all, plainly a kind of metaphor: no reader really thinks all the people of the United States directly established the Constitution. Interpreters can easily show, moreover, that the text's terms, derived largely from the discourse of American elites, treat many as virtually invisible nonpeople (e.g., indentured servants, women, African Americans, Native Americans, all of whom the document relegates to lesser categories, explicitly or implicitly). Thus, deconstruction might first suggest that the Constitution is a misleading, biased creation of elites alone, as leftist critics assert.

Next, one can deconstruct the Constitution to display internal dissonances. For instance, in contrast to the Preamble, the last article of the original Constitution (Article VII) indicates that the Constitution must be ratified by nine state conventions. Here the Constitution seems established more by a supermajority of the states, or of these state conventions, than by "We the People." Wrestling with whether the text finally describes itself as a product of the national populace or the states has long led analysts to conclude that it is opaque or inconsistent, incapable of constituting a government without added meaning supplied by its interpreters. If so, it is less a constitution than it purports to be.

Deconstruction of "We the People" can be taken still deeper yet. We might question how much of its meaning derives from reference to any flesh-and-blood inhabitants of the United States, then or now, be they a national populace, ruling elites, or state citizens. For some readers, the opening words actually summon up thoughts of Founding Fathers who are plainly not all "the People," but a few, and whose identities are provided much more by enduring national myths than any perceptions of the Founders' physical reality. Insofar as readers do think of "the People," moreover, they are likely to imagine the type of entity portrayed in certain traditions of political writing and novels—a heroic demos of anti-aristocratic republicans, unified by a general will and acting as a collective moral agent capable of political transformations. That may be a stirring image, but it is one expressing knowledge of certain systems of signs, not of the particular persons living in the United States in 1787–1789.

The power of those political traditions in shaping our reading of the Constitution suggests in turn that these systems of signs are actually providing much of the Constitution's meaning that the text purports to derive from "the People." If so, the most fundamental political claim of the Constitution, the claim that it is the creation of responsible human agents who are guiding their own collective destiny, may appear to be a myth. The Constitution now seems much more a set of signs drawn from other systems of signs that constituted the consciousness of "We the People" than a law created by "We the People." In short, deconstruction of "We the People" can lead us to think of political agency in a different way, a subjectless way that is sharply opposed to what the text initially seemed to suggest.

There is something to be learned from each of these three deconstructionist readings of the Constitution, culminating in this challenge to meaningful human agency itself. Yet we should also recall that the partiality of every existing interpretation does not by itself show that they are all simply false. The existence of contradictions in a text or a body of laws does not alone prove that its essential themes are indefensible. And the dependence of our minds on the many systems of signs that order our worlds of experience does not prove that we cannot play a significant role in coming to understand those worlds somewhat better and in reordering them beneficially.

Like the "cynical acid" concerning the determinacy of legal rules and factual judgments that the legal realists earlier provided, deconstruction simply renders certain particular claims of these sorts less credible. It does not prevent us, after encompassing the insights it provides us, from going on to construct systems of ideas and institutions that seem more satisfactory than their predecessors, albeit still imperfect. Nor does it tell us much about how such constructive efforts should proceed. Thus, deconstruction itself represents but a partial contribution to understanding the Constitution and judging what it can and should mean, how and whether it can and should work, today and in the future.

Rogers M. Smith
(1992)