This Article approaches the law-politics divide from a new angle. Drawing on the insights of literary theory, this Article argues that every act of interpretation, including constitutional interpretation, inevitably draws not only on text but also on context, and that the relevant context extends beyond both the written document and the historical context of its origination. This understanding derives from speech-act theory and from postmodern literary theory. As Paul de Man argues in his seminal essay, The Resistance to Theory, moreover, the act of interpretation always encompasses a “pragmatic moment” that undermines the effort to attain perfect theoretical coherence. Applying this perspective to constitutional interpretation, this Article argues that neither constitutional theory nor politics, on its own, is capable of fully explaining constitutional interpretation and constitutional change.
In illustrating this phenomenon, this Article draws on recent scholarship about the recent evolution of constitutional doctrine in two areas--the Fourteenth Amendment and the religion clauses of the First Amendment--to demonstrate the dialectical interplay among text, principle, and pragmatism in constitutional interpretation and constitutional change. Although the insights regarding the sources of constitutional change in these areas are not new, the original contribution of this Article lies in its reconfiguration of the theoretical understanding of how, and why, this change inevitably occurs.
Place of Original Publication
Texas Law Review
91 Texas Law Review 1815 (2013)
Hill, B. Jessie, "Resistance to Constitutional Theory: The Supreme Court, Constitutional Change, and the "Pragmatic Moment"" (2013). Faculty Publications. 142.