The Hermeneutics of Constitutional Amendment
Requires Subscription PDF

Keywords

Constitution
Constitutional Interpretation
Hermeneutics
legal hermeneutics
Constitutional Hermeneutics
Constitutent Power
Democratic Legitimacy
Interpretation
Textualism
Exegisis
Religious Texts
Amendment
Constitutional Legitimacy
Constitutionalism
sacred text
Palimpsest
Pastiche
Critical Theory

Abstract

The practice of constitutional amendment raises numerous issues for under- standing and interpreting a written constitution. Do amendments have the same authority as original textual provisions, or less or more authority by virtue of their “last in time” status? Should amendments be read to be consistent with the previously included elements of the text or should the earlier textual provisions be reinterpreted in light of the amendment? This article explores the implications of amendability for questions of constitutional hermeneutics. Three distinct approaches to the relationship between an amendment and the preceding text are described: “pastiche” (each amendment and the original text stand as separate, independently understood texts); “sacred text” (the amendment corrects an error in the earlier text or its understanding and thus restores the original whole); and “palimpsest” (the addition of an amendment and the consequent erasure of elements of the original text creates a new text to be interpreted as a whole). Each of these understandings, in turn, is associated with a particular heremeneutic model: the pastiche approach is associated with an epistemological model based on the work of Francis Lieber; the sacred text understanding is associated with an exegetical model grounded in religious practice based on the work of Jaroslav Pelikan; and the palimpsest version of the amended text is associated with a critical philosophical model of hermeneutics based on the work of Hans-Georg Gadamer and Jurgen Habermas among others. The conclusion is that only a palimpsest approach, informed by a critical philosophical hermeneutic of constitutional interpretation, is consistent with fundamental principles of constitutional legitimacy grounded in constituent power.

Requires Subscription PDF