Vol. 3 No. 12 (December, 1993) pp. 136-140

THE INTERPRETABLE CONSTITUTION by William F. Harris II. Baltimore: The Johns Hopkins University Press, 1993. 225 pp. Text ed. $38.

Reviewed by Rogers M. Smith, Department of Political Science, Yale University.

Let's knock off one thorny preliminary right away. Will Harris's long awaited book, THE INTERPRETABLE CONSTITUTION, IS hard to read and therefore hard to interpret. He knows this. He defends his "abstract and metaphorical style of writing" on several grounds. They include his subversive desire to problematize existing terminology; his mildly Puritanical belief in the benefits of having readers work through problems themselves; and especially his conviction, _pace_ prevailing forms of intellectual Reaganism, that complex subjects do not have simple answers that can adequately be captured in simple terms (pp. 36-37). There's something to all these points, particularly the last. I'm nonetheless going to try to reformulate his arguments as plainly as I can, just because that's what I had to do to follow them. Readers rightly suspecting that there is more to THE INTERPRETABLE CONSTITUTION than this review conveys are urged to repair to the original.

Harris's book is motivated by a keen awareness of what he correctly terms the "preposterous" character of the enterprise of constitutionalism, especially in its extreme form, the effort to construct and guide a real live political community via a hard-to-change written constitution (pp. 1, 14). Unless we really believe its framers were gods, how can it possibly make sense to try to resolve the problems of a postindustrial superpower with a diverse population of over 255 million through constant reference to a brief sketch of government laid out over 200 years ago by men from 13 thinly populated, largely agrarian, loosely affiliated newborn states?

Harris is not trying to argue here that, all things considered, it does make sense. He is not even asserting that, empirically, Americans actually do govern themselves through reference to the Constitution in any profound way. His concern is, as he stresses repeatedly, a theoretical one. The primary question he asks is, "What would have to be true in order for the enterprise of constitutionalism, conducted via a written Constitution, to make sense for a society like ours?" If we can give no plausible answer to this question even in theory, constitutionalism is in trouble (pp. xi-xii, 15, 206). Harris reassures us that, on its own terms, constitutionalism is theoretically plausible; and though his case is not conclusive, it is powerful and merits deep consideration.

The payoffs from pursuing this theoretical question include some illuminating (if lengthy) reflections on the deeply constitutive interrelationships of language and politics, in the book's opening parts, as well as insights into the amending processes that are appropriate if the enterprise of a written constitution makes sense, in its closing chapter. But the main fruit for practical consumption is an account of the modes of interpretation we might legitimately employ, and those we should not, if, again, our premise is that the project of having "this Constitution" is a good one. I will focus here on Harris's arguments about proper and improper forms of interpretation, because they are crucial to his case for the theoretical coherence of constitutionalism.

As Harris maintains, if we are to claim that constitutionalism can provide any real constraints on or guidance for political life, at least two things must be true (p. 10). First, the constitution must be genuinely authoritative in people's lives, something that shapes their thought and actions in basic ways. Second, constitutional interpretations must be meaningfully bounded. We must be able to categorize some political arguments as NOT proper constitutional arguments and so as less authoritative. A framework of permissible interpretative forms must therefore indicate what's in and what's out. Harris gives a theoretically persuasive, though practically unlikely, explanation of how the first criterion can be met. He is less successful even theoretically in meeting the second criterion; but his effort is stimulating.

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In a republican government, that is to say, a government that claims ultimate authority from its people, the answer to how a written constitution can claim to be authoritative must involve an appeal to those people. And, Harris argues, a constitution must be embraced by the people on an ongoing basis. Efforts to ground constitutional authority in terms of the will of the original framers or ratifiers will not suffice, for they do not explain how a constitution can remain binding on those born long after those initial endorsements. The only persuasive answer, Harris forcefully contends, is if people continuously "ratify" and "authorize" their written Constitution (pp. 32, 118-119). If citizens choose to be the sorts of citizens its text projects, if they are people who regularly think and argue in terms of constitutional categories, limits, and aspirations, then it does make sense to say that the constitution is authoritative due to their conferral of that status upon it. It also becomes reasonable to say that it genuinely plays a fundamental role in constituting who they are and how they live politically. This neat reversal of the true "authorizers" of the Constitution, from the "original" sovereign people to the ongoing, living sovereign people, is a persuasive solution to the problem of a constitution's authoritativeness as far as it goes. It does show only that our Constitution is authoritative if we treat it as authoritative, and that's a pretty big "if." In the U.S. it is certainly arguable that most people who know something about our Constitution merely give it lip service at best, while most people don't know anything much about it at all. Perhaps if Americans nonetheless do think and argue chiefly in terms the Constitution propagated, that's proof enough of its authority, however cynically or unknowingly they do so (pp. 118, 207). But that claim is normatively debatable, and its empirical premise must be supported.

Harris responds to the second demand of constitutionalism, that legitimate interpretations be sufficiently bounded so that we can tell when people are following a constitution and when they are not, via another partial reversal. If a constitution is really understood to originate and guide a political community as an ongoing collective enterprise, Harris maintains, it is not enough for citizens to analyze the current conditions, norms, and operational logic of their society in light of the provisions of the original written text. They must also analyze the provisions of the original written text in light of the current patterns of their society. Why? Because, as Marshall and Story argued, the original text must be understood to project a political community that can survive and thrive along the lines originally laid out. To decide how it can be made to survive and thrive, its members must understand well the conditions and problems they are actually experiencing as their society evolves. Then they must read the original text with a view to seeing how it can be interpreted so that the basic enterprise it projects can be sustained under current circumstances. This necessity means, Harris argues, that the principles and logic of current practices serve in effect as a second constitutional "text" (p. 103). These patterns must be interpreted along with the original written text if citizens many years after the founding are to figure out how to carry on the constitutional project in their own time. Modes of constitutional interpretation therefore necessarily involve efforts to interpret both the original written text and the ongoing "polity text" of the constitutional enterprise.

This argument for interpretation as a "two-text project" has the enormous advantage of linking constitutional analysis to current realities, as well as words "two centuries old" (pp. 3, 107). But despite Harris's protests, it will be perceived with suspicion by some as an appeal for a "living" Constitution that really says the Constitution can mean whatever we want it to mean at the moment. That criticism has force. Yet at a minimum, Harris is correct to contend that it doesn't make sense, in terms of the project of constitutionalism, to reject out of hand interpretation guided in part by a reading of the realities of the current society. If we did not attend to the obstacles and opportunities posed to constitutionalist efforts by existing arrangements, if we did not read the second constitutional "text," then we would show ourselves not to be truly serious about carrying the constitutional enterprise forward.

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Having a written constitution claiming popular authorization might make sense, then, if citizens continuously analyzed current political patterns and precepts through reference to the original written text, and analyzed the written text through reference to current patterns. What appropriate forms can these cross-referencing interpretations take? A good social scientist, Harris responds with a (complex) 2X2 table. It is arrayed on one axis along the dimensions of whether one focuses more on particular phrases and clauses, "positivism," or on broader structures and patterns visible in constitutional texts, "structuralism." The other axis runs from approaches focused more on the original written text ("immanence"), to ones centered more on the "polity text," the actual existing arrangements that are understood as evolving efforts to realize constitutional principles. Since it goes beyond the original text, Harris terms this dimension "transcendence" (p. 146).

The four polar types of interpretation that result are first, "immanent positivism," arguments that focus on particular words and phrases of the original text viewed primarily in light of that text as a whole, with less emphasis on whether existing circumstances make conforming to the textual imperatives sensible or even possible. Hugo Black's literalism is a leading example of this interpretive bent. Second is "immanent structuralism," which still focuses on the document, but uses the whole to help make sense of not clauses so much as the basic structure and objects that the text conveys. Joseph Story and Charles Black are examples here. Third is "transcendent positivism," which returns the focus to particular phrases or clauses, but interprets them with an eye to what other values and interests have to be inferred both to give these clauses thematic coherence, and to read them in ways responsive to what's necessary to realize those themes. Thurgood Marshall's argument in SAN ANTONIO SCHOOL DISTRICT V. RODRIGUEZ, that we are entitled to infer nonexplicit constitutional interests from the conditions that are logically and practically necessary to make explicitly guaranteed rights available in today's society, is a clear example here. Finally, there is "transcendent structuralism," in which interpreters focus on the broader structures and objects of the original document, expounded chiefly by attending to the broader political order and its logical and practical requirements. Exemplary here is Ronald Dworkin's Judge Hercules, who interprets the Constitution's structures and objects in light of his own constructive theory of how they might make compelling sense, given contemporary realities and the best philosophical expositions of values now available.

Harris argues that all these modes of interpretation are legitimate. He suggests it is in fact worthwhile to analyze constitutional issues in terms of all of them, gaining assurance if several converge (p. 162). But here he reaches a critical juncture: he also wants to say that there are some apparent constitutional arguments that clearly fall outside this range of legitimate modes, despite their manifold possible combinations. Harris aims to combat interpretive excesses right and left. He argues that however much we may esteem the framers, their intentions have no place in constitutional interpretations unless they have been "embodied in the words or the structure of the text" (p. 160). And he also contends that whatever their ultimate truth, doctrines of moral reality or natural law also do not belong in interpretations unless they are "subsumed by the logic of the political form" a constitution creates or expressed in its "words and textual structure" (p. 159). Unless these textual connections can be made (via the original document or the "polity text,"), interpretations cannot be built on passages from Madison's letters, or from teachings about natural right or rights found in Aristotle or Locke, or from our own philosophical discoveries of moral truth.

Harris is right to anticipate that some historically and philosophically minded scholars who engage in constitutional arguments will chafe at these constraints. But on their face they don't actually rule out a great deal. They still permit a lot of talk about the intentions of the framers and the natural law principles reflected in our forms of

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government, and also the implications of the sorts of empirical circumstances that the legal realists urged us to examine. And Harris's exposition makes it doubtful that they rule out as much as he thinks they do. To make them seem constraining, Harris has to read quite narrowly the interpretive approaches of some of the constitutional analysts he invokes, especially in regard to natural law. That by itself might not matter. Maybe they didn't describe what they were doing accurately, or maybe they were doing something they shouldn't. I think, in fact, that what they were doing was both consistent with what Harris prescribes and corrosive of the boundaries around permissible interpretation he wishes to build.

Two examples must suffice. Harris interprets Justice Samuel Chase's famous appeal to natural law in CALDER V. BULL as an appeal to the nature of "the polity that the people have constituted" and the principles of "reason and justice" it involves (and only those principles). Harris recognizes that for Chase, the people's choice of a form of government was guided by broader principles of natural justice that made their choice a reasonable one. But Harris thinks Chase believes such principles leave room for discretion, so that the constitution makers "could have designated another form of polity" (p. 138). Hence Chase would agree that constitutional interpreters can only give force to the principles of natural justice our forms of government embody.

I think Chase would dissent on this last point. He does believe that principles of natural justice permit some discretion in designing political systems, but he also thinks they rule certain things out. He thus focuses closely on the chosen form of government ONLY WHEN HE IS DEALING WITH ISSUES NATURAL JUSTICE LEAVES AS DISCRETIONARY. On matters where natural justice speaks unequivocally, Chase looks directly to it, assuming the Constitution's makers have authorized nothing contrary to it. In CALDER V. BULL, for example, Chase contends that statutes impairing lawful private contracts or arbitrarily redistributing property from A to B violate both the nature of American governments and "general principles of law and reason." He makes no effort, however, to show that free republican governments imply such doctrines of property rights as a matter of their own inherent political logic. I think he is better understood as claiming that infringements of such property rights are forbidden by natural justice and so were never within the realm of legitimate discretion of those who chose to create free republican governments. Hence impairments of those rights violate, as Chase says, not only the spirit of those governments but, especially, reason and justice more generally.

I also think there's nothing illogical about Chase's position. For him, it keeps constitutional interpretation bounded, because he believes that natural justice has an identifiable content that is constitutive for American political arrangements. If I'm right, then telling Chase to keep his interpretations confined to the principles implied by established forms of government, not natural law per se, would not make sense to Chase. He thinks valid constitutional texts presuppose all of natural law and only specify what it leaves unsettled. Whether or not my reading of Chase's position is correct, Harris must show that the view I describe is an impermissible one on his terms. Otherwise, his effort to fence out general appeals to natural law fails.

Harris might respond that the ongoing authorizers of the Constitution, the interpreting citizenry, authorize only the principles of justice it implies, not the broader backdrop of natural law. But in fact claims that the written text must be understood in light of what the interpreter takes to be inherently just are so ubiquitous that this response seems unpersuasive. (It works better as an answer to the parallel claim that interpreters effectively authorize the extra-textual intentions of the framers. Comparatively few draw on Madison's correspondence).

Similarly, Harris's invocation of Dworkin as a preeminent exemplar of "transcendent structuralism" does not make his claim of

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boundedness more forceful. Harris rightly argues that Dworkin believes his Judge Hercules should focus on the "three-dimensional" moral and institutional "contours of the polity" today in order to construct a theory of it that can resolve hard cases (pp. 157-158). But when we recall, first, that for Dworkin this means a judge should encompass leading expressions of contemporary moral philosophy, such as John Rawls's theory; when we next recall that Rawls argues for a method of justification, reflective equilibrium, that involves assessing all the moral knowledge available in our culture, from Greeks through postmodernists; then it should be clear that this reading of our polity via "transcendental structuralism" can be pretty open-ended. True, in theory not everything can pass muster as a plausible account of the "polity text"; but even in theory, an awful lot can. It's therefore hard to conclude that under Harris's framework constitutional interpretation has been shown to be an enterprise sufficiently bounded so that we can be sure what's a permissible constitutional argument and what's not.

I am doubtful, then, about whether Harris ultimately succeeds in showing that constitutionalism makes full theoretical sense, that a written constitution can in theory claim both to possess genuine authority and to provide meaningfully bounded guidance to political life. I also remain skeptical about how far, in practice, American political discourse authorizes our Constitution in any deep sense and is constituted and by it. Yet I also would not deny that to some as yet unknown degree we Americans do still take our Constitution seriously, thereby giving it authority in our debates, and that taking it seriously involves being shaped, constrained, constituted by our form of constitutionalism. To get better answers to these questions, to explore the role constitutionalism actually plays in our political lives and in other communities, to reflect on the role it might come to play, it is surely useful to have a theoretical grasp of how constitutionalism might make sense on its own terms. THE INTERPRETABLE CONSTITUTION provides much we can use to attain that grasp more firmly.