Political Theory

"The Hermeneutic Implications of Constitutional Amendment"

Howard Schweber University of Wisconsin - Madison

Abstract

This paper explores the implications of applying a philosophical hermeneutic approach to the interpretation of constitutional texts, and more specifically to the interpretation of an amended constitutional text. My conclusion is that the exploration of this question leads to the conclusion that the fact of amendment (as opposed to mere amendability) has normative consequences for the way we read the constitutional text. Specifically, I will argue that an amended constitution should be read as a “palimpsest”, meaning the reading of the text as a coeherent whole despite the recognition that multiple elements have been added, removed, or overwritten over time. In this way, I will argue, application of the methods of philosophical hermeneutics to constitutional interpretation demonstrates the inadequacy of other familiar approaches such as clause-based textualism or historicism

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