Monday, October 22, 2007

Dumbledore and Stanley Fish

Over on FindLaw's Writ today I have a column called Harry Potter and the Framers' Intent, which uses the revelation by author J.K. Rowling that her fictional wizard Albus Dumbledore is gay as the launching pad for a discussion of the relation between an author's intentions and the meaning of her text. It will come as no surprise to readers of my academic work that I express disagreement with the view that the intentions of the Constitution's authors control its later meaning.

Here I want to suggest a re-framing of the debate about original understanding. In recent years, Stanley Fish has been arguing (for example, here) that interpretation of texts necessarily involves a search for the author's meaning. I think Fish is wrong about this point but I won't explain why I think so here. Instead I want to suggest that we can accept much of Fish's claim and still think that what is sometimes called the "living Constitution" is superior to originalism.

In my column, I argue that in light of the dead hand problem, interpreting the Constitution in accordance with modern understandings gives the process greater legitimacy than interpreting it in accordance with the framers' intent or the original public meaning. We can and should regard contemporary Americans as the authors of the Constitution, not just johnny-come-lately readers. If the Constitution derives its current legitimacy from current tacit consent, then the intentions of contemporary readers matter--not just as readers but as de facto writers. Or, if that's too metaphorical, we could easily say that the relevant question is what intention would contemporary readers of the Constitution attribute to the authors of the document, regardless of what the actual intention of the authors and ratifiers was.