The problem of how texts — including, especially, constitutional texts — should be interpreted is a matter of some debate. A whole host of interpretive styles and methods all have legions of followers, most of whom it seems themselves write sometimes difficult to interpret texts (including some of those, like my friend Sandy Levinson, who believe words have no meaning) defending their favored methods and disparaging others.
Most of these learned ladies and gentlemen produce powerful, often persuasive, arguments, which are then contradicted by other powerful, often persusasive, arguments. After reading more than my share of these, it seems to me that the most powerful argument I’ve seen — it happens to be for a “strict” deference to text — is not an argument at all but an example: the way liberals (usually the “loose” constructionists) simply disregard text when deferring to it would lead to what they regard as an unwelcome result.
A classic example is provided by this recent column by Jeff Jacoby of the Boston Globe.
A record-breaking 170,000 Massachusetts citizens have submitted a petition requiring the legislature to consider a constitutional amendment that would ban gay marriage. As Jacoby writes,
The Massachusetts Constitution could not be clearer on the point. Article 48, which establishes the right of initiative and referendum, specifies that when amendments proposed by initiative petition come before the Legislature, a roll call is mandatory. They “shall be voted upon” as written, the Constitution directs (unless amended by a three-fourths supermajority). What’s more, the Legislature is permitted to take action on them “only by call of the yeas and nays.” (Italics added)
Lawmakers are not given a choice in the matter. The Constitution requires them to vote. If it didn’t, initiatives opposed by the legislative leadership could be aborted by simply refusing to bring them up for a vote. Instead of operating as a check and balance on the Legislature, Article 48 would then be a toothless sham.
But for weeks now, same-sex marriage advocates have been telegraphing their intention to kill the marriage amendment through just such an unconstitutional ploy. “Every possible option is on the table,” says the head of MassEquality, a powerful coalition opposed to the amendment. Among the tactics being discussed: adjourning the joint session before the amendment is brought up, or arranging for enough legislators to stay away in order to prevent a quorum.
Some members brag openly about their plans to flout the Constitution. “Legislators won’t be hiding in Oklahoma,” House majority leader John Rogers told Bay Windows, a leading gay newspaper. “In fact, they’ll be standing right in front of the State House steps, probably singing freedom songs and hugging one another in plain sight, not cowering.” And by the way, Rogers added — whether from ignorance or fraudulence isn’t clear — “that is perfectly acceptable as constitutional behavior.”
The most frequent argument against deference to text and for reliance on interpretation is that the meaning of text often isn’t clear.
Yes, but what about when it is clear?
The Supreme Judicial Court of Massachusetts cleared the way for the amendment today by rejecting the argument that the proposed constitutional amendment would reverse a judicial opinion.
The court held unanimously that changing the constitution was not the kind of “reversal” forbidden by the Massachusetts’ Constitution.
The saga continues…..
One of the guiding principles of “living” constitutionalism, is that nothing is ever clear, if you find it sufficiently disagreeable.