Theories of Constitutional Interpretation

Abstract

Sometimes, although rarely, the words of the Constitution appear to speak for themselves. In such circumstances the Constitution does not seem to require interpretation. Article I, Section 3, Clause 1 of the Constitution, for example, states that "the Senate of the United States shall be composed of two Senators from each State." If a third California Senator should one day present herself for accreditation in Washington, D.C., no court in the country would think twice before disapproving of the application. From a phenomenological point of view, there would be no question of "interpreting" the constitution a language, for its meaning and application would appear clear and obvious. But if for any reason that meaning has become questionable, it is no help at all to instruct a judge to follow the "plain meaning" of the constitutional text. A meaning that has ceased to be plain cannot be made so by sheer force of will. In Chambers's lawsuit, for example, either the meaning of the Establishment Clause with respect to the issue of legislative prayer is "plain," or it is not. If the latter, the question of constitutional meaning cannot be resolved by staring harder at the ten words of the clause. What is required instead is a means of interpreting the text so as to mediate between the clause and its application.