The Journal of Contemporary Legal Issues
Abstract
Can the understanding of a law be separated from its application? Despite the increasing convergence between schools of constitutional interpretation in the United States, this question remains central. One the one side are so-called “new originalists” for whom the distinction between understanding and application (or “interpretation” and “construction” as they call it) is necessary to separate a more objective step in the interpretive process from a more subjective one. On the other are “living constitutionalists,” many of whom suggest that defining a neat boundary between these two stages is impossible. When judges decide cases, they do not (and perhaps cannot) arrive at the meaning of a law independently of other interpretive modalities such as intent, precedent, purpose, and morality.
This is, believe it or not, where hermeneutic theory comes in. As an heir to Reformation-era disputes about biblical interpretation and Nineteenth Century developments in philosophy of history, few traditions have more thoroughly addressed the linkages, or lack thereof, between understanding and application. And the insights of hermeneutic philosophers on this score are only partially appreciated by legal scholars. Many, such as William Eskridge, Ronald Dworkin, and Joseph Raz, either explicitly or implicitly acknowledge their debts to Hans Georg Gadamer’s pathbreaking defense of the inseparability of understanding and application. Yet, another strand of hermeneutic theory—one which generally defends the importance of authorial intent and insists the boundary between “meaning” and “significance” is fundamental for a coherent account of human understanding—is largely ignored. Representative figures in this line include Emilio Betti, E.D. Hirsch, and, in the last decade, Vittorio Hösle.
This article addresses this shortcoming by exploring the divergent treatment of understanding and application in hermeneutic theory, and discussing how insights from this tradition might bear on debates about interpreting the United States Constitution. Particular attention is paid to the lesser-known strand of hermeneutic theory, and especially Vittorio Hösle, whose major work on the subject is only available in German. Ultimately, the article contends the intentionalist strand of hermeneutic theory supports contemporary originalists’ claim that the recovery of communicative meaning can be separated from its subsequent application. But it also explains why judges might be prone to consistently blur these lines.
Volume
26
Issue
2
Start Page
631
Faculty Editor
Steven Smith & Maimon Schwarzschild
Recommended Citation
Moore, Tyler S.
(2025)
"Hermeneutic Theory and the Priority of Constitutional Meaning,"
The Journal of Contemporary Legal Issues: Vol. 26:
Iss.
2, Article 10.
Available at:
https://digital.sandiego.edu/jcli/vol26/iss2/10
