The Power and Necessity of Constitutional Hermeneutics

united states constitution

“The Constitution, or any text, should be interpreted [n]either strictly [n]or sloppily; it should be interpreted reasonably.”

Supreme Court Justice Antonin Scalia

(This post is quite different from my usual career strategy musings, but I have discovered that even with advice for job and career success, we subconsciously interpret and evaluate that information through a variety of filters that influence which advice we accept and/or reject . As an admirer of Justice Scalia and his wit, insight, and opinions – in addition to being a student of hermeneutics – I felt that his recent passing warranted a brief look into the factors that influence Constitutional interpretation. I hope you find that this post sheds some light on the difficult task that confronts SCOTUS. )

The late Supreme Court Justice Antonin Scalia was a towering Constitutional scholar of the highest degree. He has been called an originalist, which is someone who subscribes to the principle of interpretation which views the Constitution’s meaning as fixed as of the time of enactment. The term hermeneutics has been traditionally defined as the discipline that deals with principles of interpretation (most often associated with biblical interpretation) used primarily for ancient documents.

Judicial interpretation comes in two forms: Constitutional and Statutory, and has several rules of interpretation as well as a half-dozen theories of interpretation that usually pit Living Constitution proponents against those favoring Original Intent.

While the majority of us have never taken a course in hermeneutics (or heard the term before), we’ve been using hermeneutics all our lives as we read newspapers, blogs, or analyze some event. The everyday use of hermeneutics involves a complex, unconscious blend of language and history. Our understanding is limited by our familiarity with language or facts presented to us. Imagine an astrophysicist trying to have a conversation about gravity waves with a homeless person on the subway! As we’ve seen on cable news or late-night comedy shows, people who fail to keep up with history or domestic political developments won’t be able to comprehend political cartoons or op-ed pieces.

The problem is compounded when a document or event is separated from the interpreter by time, language, and culture (a term called distanciation). For example, reading Shakespeare with a contemporary linguistic filter often obscures the true meaning of a passage as it was written at the time. In Othello, Iago uses the term “a foregone conclusion” in addressing Othello. In contemporary linguistics, the meaning is “an inevitable result.” However, in Elizabethan times, the expression meant “a previous experience.”

The complex integration of time, history, and language has given rise to what is called grammatico-historical exegesis, which suggests the significant role grammatical and cultural context have in which the text was written. This term is rarely used outside of the field of biblical/ancient document interpretation; however, it captures the very essence of the challenges Constitutional interpretation presents. Major influences for interpretation include the literary setting, the history of interpretation, present significance (the application of the text vs. its meaning), authorial intention, and others that involve careful analysis of grammar, logic, and presuppositions.

If the Constitution is considered the foundational document of law for the United States, and adopted as the model of law for other countries, a “reasonable interpretation” requires the careful application of hermeneutics. Recognizing and acknowledging the overburden of time, language, history, and culture brings the interpretation as close as possible to original intent.

Justice Scalia respected the idea that the Constitution’s meaning was fixed as of the time of enactment. Extracting that original meaning is the challenge. The most important work required today is to know when a reasonable, legitimate interpretation goes beyond the intent of what the author(s) have revealed in the original paragraphs. To interject an unfiltered explication is to clothe a passage in contemporary attire to serve other interests, much the way the Greeks consulted the oracles of their day for their own personal service.

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Former Fortune 500 hiring manager Donn LeVie Jr. is the author of Strategic Career Engagement (September 2015), and the book that reset the rules for successful job and career strategies:  Confessions of a Hiring Manager Rev. 2.0 (June 2012, Winner of the 2012 Global eBook Award and Winner of the 2012 International Book Award for Jobs/Careers). He leads career strategy seminars at conferences, business/trade schools, colleges and universities, and U.S. military veterans organizations.

Does your conference need a keynote speaker or a career strategies seminar for conference attendees? Donn’s 2016-2017 engagement calendar is starting to fill up…contact him directly at donnlevie@austin.rr.com.

Don’t miss out on Donn’s blog posts…follow him now on Twitter @donnlevie and join in the jobs/career conversations at the Strategic Career Engagement LinkedIn discussion group.

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