The Constitution and the lesson of hermeneutics

Crispin Sartwell in the LA Times on Roberts and hermeneutics:

What Alexander Hamilton and James Madison or others thought they meant by "advice and consent," or even by "by and with," for example, is significant. But so are the uses of the terms in other documents of the era, or for that matter in our own era. Though an immersion in the legal and social contexts of the 18th century is obviously relevant, we also cannot escape the fact that our interpretations of those contexts and of the words to which they gave rise is happening here, now; we therefore strive to understand the words of the past, in the present.

This dilemma is captured in the philosophical term for textual interpretation: "hermeneutics." According to theorists of hermeneutics, such as the great German philosopher Hans-Georg Gadamer, we can never divest ourselves fully of ourselves, never approach the past as people approached it when it was their present. We bring with us our language, our experience, our prejudices, our history. What the Constitution means is always what it means to us. We cannot merely see what the text says: Even trying merely to see what the text says is engaging in interpretation.

On the other hand, Gadamer was no skeptic. He knew that in a sincere attempt to come to grips with traditions and texts of the past, we have to put our own experiences and prejudices at stake. That we cannot escape ourselves and our culture does not mean that we cannot bring ourselves to the past and let ourselves be challenged and changed. There are 1,000 threads of meaning and history that connect us with the Constitution. The attempt to fix the meaning as "the intent of the framers" or, for that matter, to abandon history and treat the Constitution as a "living document," are remarkably simplistic. As will be abundantly evident in Roberts' confirmation hearings next week, many of us yearn for clarity and simplicity. But any real practice of legal interpretation acknowledges both that we live in the present and that our present is always also the continuation of our history.