The Meaning of Equality and the Interpretive Turn
The turn to hermeneutics and interpretation in contemporary legal theory has contributed at least two central ideas to modern jurisprudential thought: first, that the "meaning" of a text is invariably indeterminate -- what might be called the indeterminacy claim -- and second, that the unavoidably malleable essence of texts -- their essential inessentiality -- entails that interpreting a text is a necessary part of the process of creating the text's meaning. These insights have generated both considerable angst, and considerable excitement among traditional constitutional scholars, primarily because at least on first blush these two claims seem to inescapably imply a third: that the interpreter of a text creates rather than discovers the text's meaning. A text's meaning cannot constrain an interpreter, for the simple reason that there is no single meaning embedded in a text to do the constraining; at best an interpreter must therefore choose from a range of possible meanings, and at worst the interpreter creates the meaning in the name of discovery or interpretation. In the constitutional context, the insistence that an uninterpreted, pure, or original legal text (like any text) cannot constrain in any way its subsequent interpretation seems to imply that the judge operates not in the realm of law but in the realm of arbitrary power. This suggests that judges interpreting the Constitution are essentially creating its meaning, and are therefore freed of any "textual"-and hence legal-constraints on their power. The judicial interpreter becomes the constitution-maker; each case potentially occasions a rewriting. If the judge is not constrained by the singular meaning of the constitutional text, he must be free to basically do as he pleases. Constitutional adjudication thereby becomes, for better or for worse, an exercise of power rather than an exercise in law.
As widespread as this belief is, however, the reaction of constitutional scholars to the two fundamental insights of the "interpretive turn" in modern philosophy may be misguided. Constitutional scholars who are alarmed by the interpretive turn in jurisprudence assume that judicial freedom from the constraints of the univocal, imperative meaning of "the" constitutional text implies judicial lawlessness. But the conclusion of lawlessness from hermeneutic insights simply does not follow. That judges may be free of the constraining influence of an illusion -- the illusion that a text has a singular meaning, either original or "plain," awaiting proper discovery -- by no means implies that they are therefore free; it only means that the text does not operate as a constraint, at least to the degree or in the manner traditionally thought. But it does not follow that the judge is unconstrained. He may well be constrained, even if not by the singular, original, or plain meaning of the text. Thus, even the judge who is free (and feels free) of the illusion that the text has a single, imperative meaning may nevertheless be "bound" by-and feel bound by-any number of other constraints, stemming from his professional role, his sense of ethics, his class interests, the expectations of a range of various "communities," or, as I shall discuss in greater detail in the bulk of this paper, his jurisprudential identity, and the social and moral role in society that identity entails.