Monday, June 29, 2015

Farber on the Declaration, the Consitution and the Interpreter's Dilemma

Daniel A. Farber, University of California, Berkeley School of Law, has posted The Declaration, the Constitution, and the Interpreter's Dilemma: An Essay on Historical and Iconic Meaning:
The Declaration of Independence is one of the paradigm texts in American history. It was originally written for a time-specific purpose. But it also has spoken to a broader audience across time, as an icon representing American ideals. After describing how the Declaration has been given both historical and iconic meaning by judges, presidents, and public figures, this Essay considers the relevance of these two forms of meaning to current debates over constitutional interpretation. Originalists generally privilege the historical meaning of texts.

Yet originalist Justices on the Court have acknowledged that iconic meaning also exists and can sometimes be more relevant. In Pleasant Grove City v. Summum, 555 U.S. 460 (2009), these originalist Justices turned to iconic meaning over historical meaning, endorsing dynamic interpretation of monuments -- even those containing texts. Ironically, then, they found fluidity in the meaning of texts that are literally carved in stone.

The Essay closes with a discussion of the interpreter’s dilemma: the tension between fidelity to the past (served by historical meaning) and affirmation in the present (served by iconic meaning).
H/t: Legal Theory Blog

1 comment:

Shag from Brookline said...

Since we are all interpreters (although not with the sometimes definitive powers of the Court), we all face this dilemma when we interpret the Court's decisions (as well as concurring and dissenting opinions), as reflected by extensive commentary, legal and otherwise, following term closing decisions of the Court. Farber's article is quite instructive, as the iconic can be ironic in constitutional interpretation.