Conservatives, liberals, romantics: The persistent Quest for certainty in constitutional interpretation
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Despite their considerable ideological differences, "conservative originalists" such as Robert Bork and "progressive originalists" such as Michael Perry both divide the process of understanding into cognitive (or "objective") and normative (or "subjective") aspects. The determination of the original meaning of the Constitution is methodologically separated from the question how this predetermined meaning should be applied in a particular case. This places both conservative and progressive originalists squarely in the tradition of Romantic hermeneutics, which sought to overcome the uncertainty and imprecision of textual interpretation by developing a "science of interpretation" which purported to be as epistemologically reliable as the methods of the natural sciences.In Truth and Method, Hans-Georg Gadamer argued that the presuppositions of the Romantic quest for epistemological certainty in interpretation are inconsistent with how human beings understand texts. Gadmer's thesis suggests that neither conservative nor progressive originalism is a useful way to investigate questions about the meaning of the Constitution.This essay begins with Gadamer's point that separation of the cognitive or "objective" meaning of a text from its normative or "subjective" application is not consistent with the process of textual understanding. Conservative and progressive originalism each illustrate Gadamer's central point: that the epistemological certainty in interpretation sought by separation of the cognitive from the normative cannot be achieved. That theorists on both the right and the left persist in attempts to guarantee interpretive meaning through "objective" methodologies like originalism is evidence of the extent to which constitutional theory remains confined by the questionable assumptions of the Romantic tradition. One may question the usefulness of an interpretive methodology like originalism that has not come to terms with the argument that it is inconsistent with how human beings actually understand texts.
|Keywords||No keywords specified (fix it)|
No categories specified
(categorize this paper)
|Through your library||Only published papers are available at libraries|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Grant Huscroft & Bradley W. Miller (eds.) (2011). The Challenge of Originalism: Theories of Constitutional Interpretation. Cambridge University Press.
G. P., 'All This and so Much More': Understanding Interpretation Between Originalism and Antagonism.
John M. Collins (2011). Why the Debate Between Originalists and Evolutionists Rests on a Semantic Mistake. Law and Philosophy 30 (6):645-684.
Bradley W. Miller, Beguiled by Metaphors: The 'Living Tree' and Originalist Constitutional Interpretation in Canada.
Jeffrey Goldsworthy (2009). Constitutional Interpretation: Originalism. Philosophy Compass 4 (4):682-702.
Dieter Freundlieb (1991). Epistemological Realism and the Indeterminacy of Meaning. Is Systematic Interpretation Possible? Journal for General Philosophy of Science 22 (2):245-261.
Added to index2009-01-28
Total downloads10 ( #120,443 of 1,089,053 )
Recent downloads (6 months)1 ( #69,801 of 1,089,053 )
How can I increase my downloads?