Bonding Word and Polity
Modes of constitutional interpretation and their politics
In this post, I intend to reproduce notes on an excellent paper about constitutional interpretation.
Prof. Harris in his paper titled ‘Bonding Word and Polity’ introduces his idea of the enterprise of interpretation by making the word-polity relation apparent, in an evocative fashion :
American constitutional interpretation takes for granted the elemental preposterousness of its subject, namely the presumption that a political world can be constructed and controlled with words. The Constitution of the United States did not describe a political constitution that already existed; it generated a republic, wresting the three-dimensional contours of a new public order from the two-dimensional realm of thought and theory. The words narrate the polity into existence and, as its working principles unfold, the polity becomes a kind of large-scale text in its own right. Moreover, a polity that is sustained by words in turn gives those words political meaning. Constitutional interpretation is a two-text project that at its simplest can be seen as therefore reconnecting language and politics, or rather finding the connections by which one gives meaning to the other in what might be called a structure of constitutive signification.
Prof. Harris then draws on semiotics—the study of system of symbols and the relation between the signifier and the signified. According to him, the Constitution (Codex) signifies the constitution (The Political Order) it creates.
The paper builds a simple and elegant theoritical representaton of four modes of interpretation. Focusing on one axis on positivism v structuralism and on another on immanence v transcendence. The diagrammatic representation is reproduced below:
Pause and marvel at this for a while. It makes constitutional interpretation bare. While the axes may get convoluted in praxis, the categories and what they signify, remain useful.
Like Prof. Harris elucidates this dynamism inherent in interpretation:
Yet the relationship of signifier and signified is not static….
…Changed meaning in the elements of the polity exercises a conforming pull on the words of the document, and vice versa. Such a dynamism of meaning is the result of the fundamental conjunction of word and power.
He then concludes with his understanding of the enterprise of constitutional interpretation:
…the task of a viable jurisprudence is to keep alive the tensions underlying the system and, in fact, giving that system form and energy; to keep their dissonance in intelligible bounds; and to maintain this constitutionally revealing equilibrium by providing support for whichever component of the opposition is in jeopardy of being submerge.
Intuitive insight captured in an excellent, eloquent and simple paper. Writing gripping theory is hard business and rare in law. Highly recommended.
Citation:
Bonding word and Polity (1982) Prof. William Harris II — Published in the American Political Science Review
Stable link: https://www.jstor.org/stable/1960440