Frederick Mark Gedicks,
Conservatives, Liberals, Romantics: The Persistent Quest for Certainty in Constitutional Interpretation,
50 Vand. L. Rev.,
Available at: https://digitalcommons.law.byu.edu/faculty_scholarship/278
Robert Bork, Hans-Georg Gadamer, hermenuetics, human sciences, constitutional interpretation, method, originalism, Michael Perry
Despite their considerable ideological differences, "conservative originalists" such as Robert Bork and "progressive originalists" such as Michael Perry both divide the process of understanding into cognitive (or "objective") and normative (or "subjective") aspects. The determination of the original meaning of the Constitution is methodologically separated from the question how this predetermined meaning should be applied in a particular case. This places both conservative and progressive originalists squarely in the tradition of Romantic hermeneutics, which sought to overcome the uncertainty and imprecision of textual interpretation by developing a "science of interpretation" which purported to be as epistemologically reliable as the methods of the natural sciences.
In Truth and Method, Hans-Georg Gadamer argued that the presuppositions of the Romantic quest for epistemological certainty in interpretation are inconsistent with how human beings understand texts. Gadmer's thesis suggests that neither conservative nor progressive originalism is a useful way to investigate questions about the meaning of the Constitution.
This essay begins with Gadamer's point that separation of the cognitive or "objective" meaning of a text from its normative or "subjective" application is not consistent with the process of textual understanding. Conservative and progressive originalism each illustrate Gadamer's central point: that the epistemological certainty in interpretation sought by separation of the cognitive from the normative cannot be achieved. That theorists on both the right and the left persist in attempts to guarantee interpretive meaning through "objective" methodologies like originalism is evidence of the extent to which constitutional theory remains confined by the questionable assumptions of the Romantic tradition. One may question the usefulness of an interpretive methodology like originalism that has not come to terms with the argument that it is inconsistent with how human beings actually understand texts.
50 Vand. L. Rev. 613