The Interpetation Wars & Sisyphusian Constitutionalism
As an intellectual enterprise “constitutional interpretation” is one of the more essentially contested forms of inquiry. This doesn’t seem to trouble members of the constitutional community. Jurists will continue to fight the “interpretation wars” knowing, if they’re not self-deceived, that no one methodology or system of methodologies will ever succeed in capturing the imagination of the constitutional community, including inter alia, courts, judges, academics, attorneys, and informed citizens. Of course some jurists claim their judicial interpretations are governed by one interpretive methodology or discrete set of interpretive methodologies, but examining their decisions will almost always reveal that they are unfaithful to even their own publically expressed interpretive commitments. No one judge’s record reveals consistency to one identifiable interpretive methodology. Judges are eclectic in choice of methodology and so, of course, are courts.[1]
Judges and scholars can be found advancing textualism–just read the Constitution’s text, originalism–just consult the public meaning of the text or the intentions and purposes of the Founders who framed the text. And, of course, there are a host of other “modalities” of constitutional interpretation. However, to any impartial observer, it seems obvious that that the wars over interpretive methodology will never end. And that’s disconcerting because the interpretation wars block free and undistorted conversation about substantive constitutional issues. Constitutional scholars devote their time and resources refining the “correct” form of textualism or when precedent should be overturned, and many other such distracting questions. Consciously or not, they do this in order to avoid addressing the substantive constitutional conflicts that drive our controversies. But suppose, the constitutional community took the normative turn explicitly and turned to discussing which kind of substantive questions with yield which kinds of powers and rights. The interpretation wars make jurists believe that they are self-critical about constitutional interpretation, and that might be true. However, they should rather be self-critical as to why they devote most of their opinions to interpretive strategies and institutional questions and, cutting to the chase, they why they are not devoted to ascertaining the substance values underlying the Constitution as a normative document.
What if the Founders had included in the Constitution interpretive
Constitution some of the following interpretive rules: (1) interpret the Constitutional text according to its public meaning, (2) interpret the constitutional text according to what the Founders intended the text to mean, or their purposes in including the various textual provisions, (3) interpret the Constitutional text with its structural features—separation of powers, federalism, and individual rights unless other normative constitutional values indicate otherwise. Would any of these instructions or combination of these instructions end the interpretation wars? Two approaches suggest themselves: (1) The Self-Execution Approach–the instructions speak for themselves and so the interpretation wars are superfluous, and (2) The Interpretive Approach–since the instructions are part of the constitutional text they require interpretation just as much as the existing provisions of the constitutional text require interpretation. If interpretation is unnecessary and the self-executing approach prevailed there would be no need for interpretation and therefore the interpretation wars would never have begun. However, since there is need for interpretation, there’s no getting around that interpretation is required, so to speak, all the way down with all constitutional provisions even the instructions about how to interpret the Constitution text. Hence, the Founders did (and could do) little to resolve the interpretation wars.
One can argue that the Declaration of Independence, the Preamble of the Constitution, the bill of right, and the Civil War Amendments provide substantive interpretive instructions for interpreting the rest of the document. Consider the Preamble’s noble commitments: “We the people of the United States, in order to form a more perfect union,
establish justice, insure domestic tranquility, provide 
for the common defense,
promote the general welfare, and secure the blessings of liberty to ourselves
and our posterity, do ordain and establish this Constitution for the United
States of America.” Now there exist no bridge principles tying the Preamble directly to the organizing principles creating the United States government. However, the absence of such direct connections should not condemn the Preamble to merely a hortatory text, with a pretty face, but not much substance. Perhaps the problem lies in the fact that conceptual status of the Constitution–as law or higher law–has been blurred. Requiring two senators from each state is certainly higher law–established with a supermajoritarian ratification process, but it is also ordinary law. Just try to be sworn in as the third senator from the state of Virginia. You better expect a battle to block you from taking the oath.
Don’t get me wrong, the view expressed here regarding “interpretation all the way down” would not permit the Preamble to function as self-executing interpretive instructions of constitutional text. Nothing written down can appeal only to itself for its proper interpretation. It
would, however, place interpretive instructions–for normative constitutional inquiry–which might soften our constitutional conflicts and end or minimize the interpretation wars which compel new generations of jurists, like Sisyphus, to roll their favorite interpretive boulder up the mountain promising a resolution of the interpretation wars only to be astonished by the fact that just when they think victory is in sight, their “novel” theory of constitutional interpretation falls back down the mountain and on the way down the mountain, these jurists can virtually shout a warning to a new generation of jurists that there’s no winning the interpretation wars. Dispense with the boulder and start arguing substance.
Indeed, one could successfully argue that the conventional constitutional predilection towards finding and defending the correct constitutional methodology and the battle over which institution should interpret the Constitution represents 
what can be labeled “constitutional denial.” This state of mind, perhaps like Sisyphus, simply is incapable of identifying the futility of the interpretations wars. Those senior academics suffering from constitutional denial simply pass on to their students the need to answer two central constitutional questions: (1) How should the Constitution be interpreted? and (2) Who should do the interpreting? What’s lost in this intergenerational process is the ability to recognize futility. Recall that the war mongering computer in the motion picture “War Games” was finally taught the notion of futility, and his lesson saved the nuclear destruction of the world. We can learn something from its lesson. “The only correct move in this (interpretation) game is not to play.” American constitutionalists should take this advice.
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[1] The desirability of the Court and/or
individual justices adopting eclectic interpretive strategies was
advanced by Professor Vicki C. Jackson, (Georgetown) at an symposium
honoring the work of Mark Tushnet (Harvard) at Quinnipiac University this fall.
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