We have just learned that a federal judge in Florida has ruled the entire Obama health care bill unconstitutional. It was, the news media tell us, the fourth ruling on the constitutionality of that law by a federal judge. That so-called reform of our nation’s health care delivery system is at best a modest tinkering at the edges of that system based on decades old proposals by, of all people, Richard Nixon and containing provisions similar to those Republican governor Mitt Romney signed into law in Massachusetts. That being said, there is one fact about those four rulings on the constitutionality of that law that raises a larger issue than the constitutionality of the law. Two federal judges have ruled all or part of the law unconstitutional. Both were nominated by Republican presidents. Two federal judges have ruled the law constitutional. Both were nominated by Democratic presidents. Commentators are saying that the fact that these decisions appear to break along political lines depending on which president nominated the judge in each case means that the decisions were political. They may well have been political. There is no way to get inside the minds of the judges who made the rulings to determine what the true reasons for their decisions were. The fact that two Republican judicial nominees ruled the law unconstitutional and two Democratic judicial nominees ruled it constitutional, however, raises a much larger issue about the nature of judicial interpretation of the Constitution, one that is vitally important to any proper understanding of the way in which judicial decision making works.
That issue has to do with the oft-repeated calls from the political right for “strict construction” of the Constitution. Political conservatives in our country have for decades condemned what they call “judicial activism” and demanded that judges engage only in what they call strict construction (except of course when a court does something they like, as the Supreme Court did in the Citizens United case on the right of corporations to pour unrestricted money into elections. That is a case of judicial activism if ever there was one, but the conservatives don’t complain about that one). By strict construction they seem to mean interpretation of the Constitution that sticks solely to the literal meaning of the words in the document. There are valid objections to this demand for strict construction on multiple levels. On the purely legal level there is the objection that a Constitution is by its very nature a document that states general principles. The law, however, deals with the everyday details of life, the complex particulars of life in a complex society. The Constitution cannot and by its nature should not operate at the level of those particulars. It is precisely the function of the courts to determine how the general principles stated in the Constitution apply to the minute particulars of everyday life. In light of this consideration the term “strict construction” actually makes no sense and badly misunderstands the nature and function of any constitution.
There is, however, an even more fundamental objection to the notion of strict construction of the Constitution. Although I used to be a lawyer and have extensive legal training and experience, this objection to the notion of strict construction comes not from anything I learned in law school or the practice of law but from learning I received in seminary. It is learning about hermeneutics. Hermeneutics is the theory and practice of interpretation. It is a required course in seminary, or at least it was required in mine, because interpretation of religious texts, especially of course of the Bible, is an essential part of the life of faith. Anyone who is going to preach and teach in a faith setting must necessarily interpret scripture, and the undeniable fact is that interpretation is a complex activity that requires study to understand. There are principles of hermeneutics that one must understand if one is going to do or to understand meaningful interpretation of scripture or any other document.
Of particular importance, there are principles of hermeneutics that have been developed in the emerging post-modern world that may not be entirely intuitive to people whose thinking has been shaped by Enlightenment rationalism but that, once understood, are undeniable. Perhaps the foundational principle of postmodern hermeneutics is that meaning never resides in a text alone. In and of itself a text is simply a collection of words. It is simply a collection of marks on paper—or today on a computer screen, iPad, or smart phone. In itself any text is dead. Lifeless. Inert. Meaningless. No text speaks for itself. By itself it doesn’t speak at all. It just sits there. In a real sense the text doesn’t even exist except when someone is reading it.
A text, any text, speaks only when it encounters a reader. A reader brings life to a text. A reader brings a text alive. It is in the encounter between a reader and a text, and only in the encounter between a reader and a text, that meaning arises. It cannot be otherwise. Meaning is a creation of the human mind. Nothing has meaning in and of itself. Anything has meaning only when a human mind gives it meaning. A thing, anything, has only the meaning that a human mind gives it. Humans are meaning making creatures, as many contemporary observers have remarked. Until a text is encountered by a meaning making creature it has no meaning. Until a text is encountered by a meaning making creature, that is, by a human being, it can have no meaning. This may be a difficult concept for people thoroughly steeped in the fact oriented rationalism of Western culture, but at its highest and most knowledgeable levels our culture has moved beyond that fact oriented rationalism. Meaning does indeed arise only within the human mind, and that means that no text has meaning in itself. It has meaning only in an encounter with a human mind that creates meaning in that encounter.
This principle of postmodern hermeneutics has several vitally important consequences. One that is of particular importance is that the meaning of any text depends on who the person is who encounters it and creates meaning in it. Each person is unique, although of course people in similar socio-economic-cultural circumstances have much in common, and we all share a common underlying humanity. Each reader comes to a text, any text, in her or his uniqueness as an individual and with his or her commonalities with others based on common humanity and on shared life circumstances. It cannot be otherwise. We are created as centered selves, as individuals. We are however also individuals who live in society, in community, in particular cultures, in particular socio-economic circumstances. When we come to a text, any text, we bring all of that with us.. The encounter of any reader with any text is precisely an encounter between a text and the reader in all of her individuality and commonality.
A necessary consequence of the fact that the encounter of any reader with a text is precisely an encounter between a text and the reader in all of her individuality and commonality is that the meaning that arises in that encounter will, or at least may, differ depending on who the reader is. Let me illustrate with an example from the sphere of Christianity. When poor and oppressed people in South America began, on their own, to encounter the Christian Scriptures they gave rise to a whole new kind of Christian theology. They created liberation theology. They were reading the same texts the privileged elites of their country and their former European masters had been reading for centuries, but they found new meaning in those texts. They had been told those texts were about how they could get to heaven after death. When they read the texts themselves from their Sitz im Leben, from their place in life, they heard those same texts bringing a message of liberation here and now, in this life. The same texts with different readers produced different meaning.
Another consequence of the principle that meaning does not reside in a text itself but arises in the encounter between the text and a particular reader is that the meaning in the text is not limited to the meaning intended by the text’s author. We can presume that the author of any text intends to convey a certain meaning through his text. There is some particular thing that the author intends to say. An author’s intent, and the way she tries to express that intent, are conditioned by the cultural-linguistic world in which the author lives. Every author is every bit as much a particular individual conditioned by a particular socio-economic-cultural context as is every reader. One issue that arises in discerning the meaning of any text is that the reader may be conditioned by a very different socio-economic-cultural context than was the author. That circumstance can make it difficult for readers approaching a text centuries after the text was written to determine what the original author’s intent was. More importantly, because meaning does not reside in a text but arises in the encounter between a text and a particular reader, the author of any text loses control of the meaning of the text as soon as a reader other than the author reads the text. Knowing the author’s intent in writing a text, if that intent can be determined, is not entirely irrelevant to another reader finding meaning in the text, but it is not determinative. It is not determinative precisely because meaning arises in the interaction between the text and the reader.
Those of us who have been trained in mainline seminaries are familiar with these principles and how they apply to the interpretation of the Bible. It is, in my experience at least, far less common for lawyers or politicians to understand these principles and how they apply to the interpretation of the United States Constitution. The demand by conservative politicians that the Constitution be strictly construed to reflect the original intent of the “framers,” the Constitution’s original authors, goes largely unchallenged at the most fundamental level. Commentators rarely if ever say that the framers’ original intention is not and cannot be the determinative factor in Constitutional construction because in itself the text of the Constitution, like any other text, has no meaning. The text has meaning only in its encounter with a reader. That is the only place where meaning can possibly arise because, as we have already noted, meaning is something that the human mind creates, not something that exists as an objective reality apart from the reader.
What happens when we apply these principles to the four federal court opinions on the constitutionality of the current reform of our health care delivery system? When we do that we conclude that the mere fact that the two judges who upheld the law were Democratic nominees and the two who found all or part of it unconstitutional were Republican nominees does not necessarily mean that those decisions are political. They certainly have political consequences, and some politicians will like the political consequences of the decisions in favor of the constitutionality of the law and some will like the political consequences of the decisions against the constitutionality of the law. But these decisions were made by four different federal judges, four specific human beings who came to the text of the law and the text of the Constitution with their own individuality and their own socio-economic-cultural Sitz im Leben. It may therefore be that their different decisions were not intentionally political but that they arose merely from the fact that we are dealing with four federal judges and not with one. The explanation that these decisions are political is, I believe, superficial and does not reflect an adequate understanding of postmodern hermeneutics.
This is not to say that there is not sound legal reasoning in some judicial decisions and unsound legal reasoning in others. There are established rules of constitutional and statutory interpretation. One can read a legal precedent in a way that is true to the precedent or in a way that makes the precedent say something it doesn’t say. An interpretation can stray from the text so far that the text is no longer recognizable as the text. At that point we no longer have a legitimate interpretation of the text but a misuse of the text. Postmodern hermeneutical principles do not mean that a text can legitimately be made to say anything the reader wants it to say. Judges may legitimately not make a text say something it simply doesn’t say, ignore the facts in the record of the case, or make up new facts to support a desired outcome. There are good judges and bad judges, insightful judges and dull ones. Postmodern hermeneutics have significant consequences for understanding judicial interpretation, but they do not excuse bad judging.
We conclude then that we cannot say that the four decisions on the constitutionality of the health care reform were political. They may have been, but simply calling them political is a superficial analysis at best. There is a broader lesson here. That lesson is that the calls for “strict construction” of the Constitution cannot survive any deep analysis of the nature of constitutional construction. Yes, the framers may have intended a certain meaning; but they lost control of the meaning of their document as soon as someone else read it. Their cultural-linguistic world was very different from ours. The socio-economic-cultural context of the framers was very different from that of most Americans today. It is perfectly legitimate for us to find a different meaning in the Constitution than the framers intended. Indeed, it is virtually inevitable that we will find a different meaning in the Constitution than the framers intended. That’s how it is with documents, any documents.
So let’s be done with calls for strict construction. Those calls are essentially meaningless. Let us honestly admit that the role of judges interpreting the Constitution is not to figure out what some land-owning (and many of them slave-owning) white men meant well over two hundred years ago. Let us honestly admit that the judge’s task today it to discern what the Constitution means in our context, not what it meant in theirs.
We will still disagree on how to interpret the Constitution in particular cases. That disagreement is unavoidable. If it weren’t, constitutional construction wouldn't be an issue in our courts. That’s why it is so important to have a legal system that can produce closure in a constitutional argument by issuing a decision that even those who disagree with it will recognize as legitimate. What is not legitimate, indeed what is not possible, is to lock the Constitution into its late eighteenth century meaning. Documents that cannot speak to people in different times and different contexts quickly become irrelevant. They die and continue to be of interest only to historians. Postmodern hermeneutics tell us that strict construction of the Constitution is not so much undesirable as it is impossible. So let’s argue the constitutionality of our laws on a solid theoretical basis, not on the basis of the chimera of strict construction.
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