September 17, 2003

Hermeneutics, free speech & democracy#1

The brief mapping out of my hermeneutical perspective in the previous two posts provides me with a position from which to engage with Lawrence Solum's early paper on hermeneutics and free speech in the liberal democracy of the USA. The engagement will probably be over several posts and I will more or less bounce off Lawrence's paper to develop a broader public reason that will include political and legal reason.

This connection between hermeneutics and free speech is an important one in Australia because the High Court has judged that there is an implicit right of free speech in the Australian Constitution. The argument behind the High Court's judgement and ruling was that a liberal system of government in Australia, which was based on a representative democracy and enshrined the right to vote, was meaningless without freedom of speech to discuss and debate "political and governmental matters" and to criticise and critique decisions of all levels of government - commonwealth, state and local. There is a lot of interpertation in that.

That judicial process of constitutional interpretation has been condemned by conservative politicians as amounting to a usurpation of parliamentary supremacy. The High Court has been accused of "stealing" power from the people of Australia. This dubious political argument (dubious because it is really a defence of executive dominance) implies a particular interpretation of the Constitutional text; it is one that implies the reading implications in relation to the Constitution is a radical move rather than the diversity of interpretations of the implications of the constitutional text being part and parcel of the constitutional landscape for over a century.

The Australian constitution is very a reified text. It is almost a sacred document--a bible. Only those who understand its mysteries----the priests---can comment. The lawyers are the priests. But not any lawyer mind you. It's really the province of the Constitutional lawyers who have access to, and can understand the arcane language of the expert commentaries.

Lawrence's paper is concerned with the search for an adequate theory of the first amendment freedom of speech. His concern is that a theory of free speech is required for the practice of judicial interpretation of the first amendment.
He argues that:

"...that Jurgen Habermas' theory of communicative action can serve as the basis for an interpretation of the first amendment that fits the general contours of existing first amendment doctrine and provides a coherent justification for the freedom of speech."

After briefly spelling out Habermas' theory Lawrence moves into considering the interpretation of free speech in the US Constitution. Why interpretation? Because there are competing interpretations in circulation. Hence there are problems associated with interpreting the first amendment to the Constitution of the United States, and we can add, the implied rights in the Australian Constitution Lawrence mentions them:

"The first argument is that the first amendment has a plain meaning that does not require a theory for its interpretation....The second argument is that the first amendment should be interpreted in accord with the specific intent of its framers.... The third argument is that because the meaning of the first amendment is relative to the many particular interpretive traditions in our pluralistic culture, there can be no single true theory of the first amendment."

The first argument has been called literalism in Australia. It has been deeply entrenched and it does not see the need for hermeneutics, since it presupposes that understanding the constitution is unproblematic. We can just read the plain words. Greg Craven defines it this way:

"The essence of Australian constitutional literalism is that the words of the Constitution are to be given their ordinary - that is their literal - meaning. What this means in simplistic terms is that the Constitution means what it says. The document is to be read as an ordinary piece of English language, and the words to be ascribed their every day meaning. The essence of literalism is thus that the Constitution may be read in much the same way as a telephone directory or the instructions to a model aeroplane kit, with the assistance of a dictionary, but not much else."

But what if the words were not clear or self-evident about the federal relationship between the states and the commowealth? What then? Do we not need some way of interpreting what they mean? Could there not be interpretations that misunderstand about this federal relationship? Historical understandings are situated in history and we approach the constitution from particular perspectives.

Lawrence quickly rejects the first argument---the 'plain meaning view of free speech--- on the grounds that it implies the self-interpreting constitutional text. Hence the meaning of the text can be gleaned without the aid of some interpretive method. Yet, as Lawrence, points out, some passages of the First amendment of the US constitution:

"..if considered in isolation, are ambiguous or obscure. Likewise, the text of the first amendment may be too indeterminate to be understood in isolation. What does speech mean? Are movies, radio programs, picketing, or campaign expenditures speech? The text refers only to Congress, but the first amendment has been interpreted to apply to state legislatures as well as executive and judicial action."

And in Australia, is the Townsville council's by-law 82E, which bans soapbox orators from its mall, an infingement on free speech? To understand the implications of free speech we need some understanding of the political philosophy that sits behind, and enframes the constitution. There are ambiguities here---eg., republican and liberal conceptions of citizenship--- that do need to be resolved. As Greg Craven argues the effect of literalism has been:

" de-emphasise the concept of federalism as a controlling consideration in constitutional interpretation. This follows inexorably from the fact that federalism is part of the basic frame of the Constitution, and suffuses that entire document, underlying as it does virtually all the dispositions of the Founding Fathers. The effect of literalism's exclusive insistence on the primacy of the words has been to drastically limit the use which can be made of this controlling constitutional principle in the interpretation of the Constitution."

Hence we misunderstandings. The intervening historical developments that have taken place have separated the framers of the Constitution and the interpreters. Ther has been a shift in focus and philosophy in that period, and this ha given rise to distorted constitutional understandings of a centralizing liberalism.

So literalism, the plain meaning conception of interpretation, is inadequate. As Greg Craven says:

"...the real problem for literalism in constitutional terms is that the Constitution has never been remotely like a telephone directory or a set of instructions for a model aeroplane. In fact, the Constitution is the product of a complex range of historic intentions, designed to produce a blue-print for an exceptionally evolved form of federal government. These intentions are those of the Founding Fathers, who haggled and wheedled for a decade over the exact type of Constitution which Australia was to possess. In this connection, what literalism inevitably means in practical terms is the de-emphasising of this historic constitutional intention. Literalism, with its exclusive emphasis upon the words as they appear in the text, must ultimately be destructive of any recourse in direct terms to notions lying at the heart of the Founders' vision, such as a broad concept of strongly decentralised federal government."

Interpretation is not something alien imposed on the text since the constitution is itself a historical interpretation of the political traditions of the British nation state and the US constitution. It is a distillation and reworking of these, and so the text needs to be understood historically, rather than as some foundational set of Euclidean axioms.

One popular approach to legal hermeneutics is the second argument that Lawrence mentions. We can go back to the intentions of the framers of the constitution. This sort of appeal is made by Greg Craven in a previously quoted passage when he says:

"In fact, the Constitution is the product of a complex range of historic intentions, designed to produce a blue-print for an exceptionally evolved form of federal government. These intentions are those of the Founding Fathers, who haggled and wheedled for a decade over the exact type of Constitution which Australia was to possess."

This return to what particular persons intended at a particular time gives us the touchstone that we require to resolve the ambiguities. The textual meaning of the Constitution is then equated with the author's intentions.

Lawrence approaches this argument in terms of the debates within the hermeneutical tradition, and Gadamer's criticism of the romantic hermeneutics of Schleiermacher. Lawrence says:

"Gadamer does not criticize Schleiermacher on the ground that intentions are irrelevant to interpretation. Rather, Gadamer observes that our understanding of original intent is necessarily conditioned by our own situation and concerns. Thus, our description of an author's original intent necessarily reflects our perspective."

We can go back and read the transcripts of the constitutional convention debates in which the constitutional issues were sorted through to discern the intentions of the framers; but we would interpret these texts from our own perspective. Understanding a text requires one to apply the text to one's own situation.

We do have difficulities here with intentions because, as Lawrence points out, the intentions of the framers were at the least ambiguous and complex. Thus there was little mention of citizenship in the Constitution. What does that mean? Does that mean that citizenship was of no import? How can you have a liberal nation state without citizens?

The meaning of the Constitutional text is not what it appears. As Kim Rubenstein points out:

"Citizenship concerned the drafters acutely and they made a conscious effort to exclude the term from Australia’s foundational legal document."

They did so in order to exclude the Chinese and Indian residents in Australia. Does that mean intentions are important? To the extent of trying to make sense of the silence about citizenship in the constitutional text. Lawrence highlights the difficulties in saying yes:

"...the notion that constitutional meaning can be constructed out of intentions is problematic for more general reasons. The difficulties can be illustrated in a series of questions: (1) Whose intentions are to count? This question suggests a host of possible answers: (a) the intentions of the drafters of the first amendment itself, (b) the intentions of the members of Congress who voted to propose it to the states, or (c) the intentions of the members of the state legislatures that ratified the Bill of Rights. Given the many different possible "authors" of the first amendment, subsidiary questions arise: What if there were conflicting intentions?

How should the conflicts be resolved? (2) What sort of intentions should be used? Again there are many possibilities: (a) abstract intentions about the principles underlying the first amendment, or (b) concrete intentions about the application in particular cases. What if more general intentions conflict with more specific ones? (3) What psychological states count as intentions? Are hopes, predictions, or convictions intentions?"

What we actually do here is to construct the intentions of the framers. We do this by constructing the historical background to the discussions on citizenship that took place during the Constitutional Conventions in order to understand the perspective of the framers’ intentions not to define citizenship in the Constitution.

Posted by Gary Sauer-Thompson at September 17, 2003 01:55 PM | TrackBack


There once was a huge leftist schmuck
Who even his wife wouldn't fuck.
He spent all his days
Writing bullshit essays
But the editors said they all suck.


There once was an Arkansas hack
Who made his name bein' Bill Clinton's flack.
He started a blog
All filled with the smog
Of rantings by pinkos on crack

Posted by: on September 19, 2003 01:49 PM

Citizenship is an important aspect of our liberal democratic society--part of its fundamental furniture as well as our identity.

So it is worth exploring why citizenship is barely mentioned in the Australian Constitution and how we understand it today.

Posted by: Gary Sauer-Thompson on September 23, 2003 09:00 AM
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