Against Constitutional Theory

Abstract

Nobody can agree on what the Constitution means. Some argue that it prohibits states from banning abortions, while others claim that it says nothing about abortion, or that it prohibits abortion. It is claimed that the Constitution abolishes the death penalty, and that it specifically authorizes the death penalty; that it bans segregated schools and is indifferent to segregation; that it requires that we exempt religious believers from laws that burden the practice of their religion, and that it prohibits governments from granting such exemptions; that it eliminates the possibility of a thirty-one year-old president, and that it welcomes this possibility. Such examples, of course, could be greatly multiplied. Two beliefs about this perplexing document do not appear controversial. All commentators seem to agree that the Constitution is a text, and that understanding it is primarily a matter of deploying the proper theory of textual interpretation. The purpose of this article is to demonstrate that those beliefs are largely mistaken. I am aware that readers of this text will consider such a claim highly counterintuitive, and perhaps dismiss it out of hand. I can only prospectively ask for your patience. Reading, Barthes has noted, is an intimacy between strangers; and perhaps, like all intimacy, it requires an initial gesture of faith from both author and reader.