The Case Against Originalism and Textualism: The Hermeneutics of Gadamer and Ricoeur
Edoardo Bellando earned a PhD in philosophy from Stony Brook University after working for 30 years at the United Nations.
Legal hermeneutics, the interpretation and meaning of written law, has a centuries-long tradition and is one of the main branches—together with Biblical and literary hermeneutics—from which the modern version of the discipline originates. Legal hermeneutics seeks to determine how best to grasp the meaning of a given legal text. By focusing on the way the process of interpretation works, it seeks to ensure that legal practitioners achieve a better assessment of the text before them. It is therefore an eminently practical discipline.
Hermeneutics should be the mainstay in interpreting the United States Constitution. Leading American philosophers, such as Richard Rorty, Don Ihde, and Richard Bernstein, embraced the discipline, as did philosophers of the following generation. Many great contemporary hermeneutics scholars, such as Robert Brandom, Richard Kearney, John McDowell, Dennis J. Schmidt, Lauren Swayne Barthold, and Georgia Warnke, are either American or teach in the United States. The two giants of contemporary hermeneutics, Hans-Georg Gadamer and Paul Ricoeur, taught for years in American universities. In his masterpiece, Truth and Method, Gadamer devotes many pages to legal hermeneutics, which he considers a model for interpretation generally.[1]
Yet contemporary hermeneutics is virtually never mentioned or used by the Supreme Court justices. The two worlds, hermeneutics and constitutional law, seem to inhabit different silos. Still, the justices and other judges could profit from the application of the discipline. This article compares different methods of interpreting the Constitution, explores how the views of Gadamer and Ricoeur undermine the textualist and originalist approaches, and highlights useful hermeneutic tools for constitutional interpreters.
Brandon J. Murrill, in a 2018 report for the Congressional Research Service, a federal agency located within the Library of Congress, neatly distinguishes eight main methods of interpreting the Constitution: textualism, original meaning, judicial precedent, historical practices, pragmatism, moral reasoning, national ethos, and structuralism.[2] The first four methods lend themselves to hermeneutic critique and can benefit from it. The last four, while not constituting a full-fledged interpretive method, can provide complementary guidance.
I. Ricoeur, Gadamer, and Textualism
Textualism, Murrill says, is a mode of interpretation that focuses on the plain or popular meaning of a legal text.[3] Textualists usually emphasize how the terms in the Constitution would have been understood by people at the time it was ratified, as well as the context in which those terms appear. Textualists usually believe that there is an objective meaning of the text and are wary of the Supreme Court acting to refine or revise constitutional texts.
Two prominent textualists, Supreme Court Justice Antonin Scalia[4] and legal scholar Bryan A. Garner, said of their approach: “We look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.”[5]
A representative of strict textualism is Justice Hugo L. Black.[6] Maintaining that interpreting the Constitution meant looking no further than the literal meaning of its words, Justice Black stated, for instance, that the text of the First Amendment—“Congress shall make no law abridging the freedom of speech or of the press”—amounted to an “absolute command … that no law shall be passed by Congress abridging freedom of speech or the press,” even when such freedom could be used to advocate overthrowing the government.[7] He felt that the text of the Constitution should serve as the sole source of its meaning.
Opponents of relying strictly on the text alone in interpreting the Constitution suggest that justices and other interpreters may attribute different meanings to the Constitution’s text depending on their background—what Gadamer would term their horizon (see below).[8]
An objection to textualism comes from Ricoeur. For him, the text has a distance and autonomy that make it hard to maintain, as textualists do, that there is a plain, popular meaning of the Constitution, that it is possible to ascertain how the terms in the Constitution would have been understood by people at the time it was ratified, and that there is an objective meaning of the text. This is because of the inevitable distance between the text and its readers and because of the autonomy of the text. For Ricoeur, “Distanciation … belongs to interpretation, not as its contrary but as its condition. The moment of distanciation is implied by fixation in writing. . . . Fixation is the condition of a much more fundamental phenomenon, that of the autonomy of the text. A threefold autonomy: with respect to the intention of the author; with respect to the cultural situation and all the sociological conditions of the production of the text; and finally with respect to the original addressee. What the text signifies no longer coincides with what the author meant; verbal meaning and mental meaning have different destinies.”[9] In other words, the text of the Constitution has been detached from the framers, their intentions, and their cultural and social situation; it has its own autonomy, and for these reasons we cannot count on the recovery of its plain meaning. Ricoeur’s objection is equally valid against original meaning (see below).
Gadamer makes two other objections to textualism. First, “the horizon of understanding [of the interpreter] cannot be limited either by what the writer originally had in mind, or by the horizon of the person to whom the text was originally addressed…For texts do not ask to be understood as a living expression of the subjectivity of their writers. This, then, cannot define the limits of a text’s meaning.” Today’s interpreter cannot be limited by what the framers of the Constitution had in mind or what their contemporaries understood as their meaning; this would unduly restrict the work of the interpreter.
Second, “it is not only limiting a text’s meaning to the ‘actual’ thoughts of the author that is questionable. Even if one tries to determine the meaning of a text objectively by regarding it as a contemporary document and in relation to its original reader … one does not get beyond an accidental delimitation. The idea of the contemporary addressee can claim only a restricted critical validity. For what is contemporaneity? Listeners of the day before yesterday, as well as of the day after tomorrow, are always among those to whom one speaks as a contemporary. Where are we to draw the line that excludes a reader from being addressed? What are contemporaries and what is a text’s claim to truth in the face of this multifarious mixture of past and future? The idea of the original reader is full of unexamined idealization.”[10] For Gadamer, “contemporaries” is a slippery notion, and delimiting a given time frame is virtually impossible. Interpreting a text is always a mediation between different historical times, different needs, and different interests, and privileging the reader living at the time of the framers constricts the work of today’s interpreter. These objections also apply to original meaning.
II. Gadamer and Original Meaning
Original meaning is a method that considers the meaning of the Constitution as understood by at least some segment of the public at the time of the framers. Originalists generally agree that the Constitution’s text had an “objectively identifiable” or public meaning at the time of the founding fathers that has not changed over time and that the task of justices and other interpreters is to construct this original, fixed meaning.
However, constitutional scholars disagree on what it means for a judge to adopt this methodology for construing the Constitution’s text.[11] Disagreements primarily concern which sources scholars should consult when determining the fixed meaning of the Constitution.
In deciding a case in 1926, Myers v. United States, the justices looked at English common law, the records of the Constitutional Convention, and the actions of the first Congress, among other sources, concluding that “the debates in the Constitutional Convention indicated an intention to create a strong Executive.”[12]
For many years, some prominent scholars, such as Robert Bork, have argued that in interpreting the Constitution one should look to the original intent of the people who drafted, proposed, adopted, or ratified it to determine what those people wanted to convey through the text.[13] According to this view, original intent may be found in sources outside of the text, such as debates in the Constitutional Convention or the Federalist Papers.
Justice Scalia and other prominent scholars have maintained that, as originalists, they are committed to seeking to understand the Constitution’s original public meaning.[14] Originalists consider the plain meaning of the Constitution’s text as it would have been understood by the general public, or a reasonable person, who lived at the time the Constitution was ratified.
For Scalia, “[o]riginalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent because … I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent … I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”[15]
Originalism has much in common with textualism but is not identical.[16] It is not based solely on the text but draws upon the original public meaning of the text as a broader guide to interpretation. An example of originalism in constitutional interpretation is Justice Scalia’s majority opinion in a 2008 decision, District of Columbia v. Heller.[17] In that case, the Court held that the Second Amendment, as originally understood by ordinary citizens, protected an individual’s right to possess firearms for private use unconnected with service in a militia. Justice Scalia’s opinion examined various historical sources to determine the original public meaning, including dictionaries used at the time of the framers and comparable provisions in state Constitutions.
Gadamer’s viewpoint suggests a critique of originalism. “A legal hermeneutics cannot seriously be satisfied with using the subjective principle of the meaning and original intention of the lawgiver as a canon of interpretation.”[18]From Gadamer’s point of view, the problem is not only that originalism can lend itself to subjective interpretations, but that it doesn’t take into account the historical distance between the framers and today’s interpreter, nor the effects of history on the interpreter. Similarly, originalism does not consider “temporality”—the fact that every interpretation takes place at a certain time—which renders this approach atemporal and outside of concrete history.
Historical distance, Gadamer says, creates “an insuperable difference between the author and the interpreter.”[19]“Every age has to understand a transmitted text in its own way, for the text belongs to the whole tradition whose content interests the age. . . . The real meaning of a text, as it speaks to the interpreter, does not depend on the contingencies of the author and its original audience. It certainly is not identical with them, for it is always codetermined also by the historical situation of the interpreter. . . . Not just occasionally but always, the meaning of a text goes beyond its author. That is why understanding is not merely a reproductive but always a productive activity as well.”[20] For Gadamer, every generation inevitably interprets the Constitution differently, due also to its different interests and needs; the meaning of the Constitution does not depend on the contingent context of the framers and their contemporaries, and understanding that meaning is inevitably influenced by the historical period in which the interpreter lives. However, this situation is not a hindrance but an opportunity. The task of the interpreter is to be aware of the context in which the interpretation takes place and to arrive at a productive interpretation in line with that context, instead of attempting the impossible operation of reproduction or reconstruction.
For Gadamer, who insists on the inevitability of our being bound by history and tradition, legal hermeneutics provides the model for the relationship between past and present.[21] Judges have to adapt the law to current needs and are oriented by their awareness of history and the interplay between history and the present. “The judge who adapts the transmitted law to the needs of the present is undoubtedly seeking to perform a practical task, but his interpretation of the law is by no means merely for that reason an arbitrary revision. Here, again, to understand and to interpret means to discover and recognize a valid meaning. The judge seeks to be in accord with the ‘legal idea’ in mediating it with the present. It is the legal significance of the law … that he is trying to understand. Thus his orientation is not that of a historian, but he has an orientation to his own history, which is his present.”[22] The law has to be adapted to our current circumstances and needs, but this adaptation is an application, not a revision. The task is to find the “valid meaning” and “legal significance” of the Constitution for the case at hand, which among other things means to mediate the “legal idea” expressed in the Constitution with the present context and concerns. It is this awareness of the unavoidable, fruitful mediation between history and the present that originalists lack.
Gadamer acknowledges the importance of original meaning, but such meaning must be updated and revitalized according to the new context. “In order to determine [the law’s normative] content exactly, it is necessary to have historical knowledge of the original meaning, and only for this reason does the judge concern himself with the historical value that the law has through the act of legislation. But he cannot be bound by what, say, an account of the parliamentary proceedings tells him about the intentions of those who first passed the law. Rather, he has to take account of the change in circumstances and hence define afresh the normative function of the law.”[23] Being bound by original meaning is not a resource but a constraint.
An exact reconstruction of the original meaning is impossible, Gadamer says. He juxtaposes two approaches to hermeneutics—reconstruction and integration. In reconstruction, the method advocated by Friedrich Schleiermacher, the interpreter “is wholly concerned to reconstruct the work … as originally constituted. For … written texts handed down to us from the past are wrenched from their original world.”[24] For advocates of reconstruction, the work enjoys its true significance only where it originally belongs, and grasping its significance means somehow reconstructing this original world. The significance of a work can be understood only in terms of its origin and genesis within that world. Hence the various methods of historical reconstruction—establishing the “world” to which the work belongs, and reestablishing the original situation that the author had in mind—are thought to reveal the work’s true meaning. Reconstruction aims at restoring the original occasion and circumstances and at reproducing the author’s process of production.[25]
However, Gadamer says, while reconstructing the conditions in which a work was originally created is important for understanding it, “we may ask whether what we obtain is really the meaning of the work … that we are looking for, and whether it is correct to see understanding as a second creation, the reproduction of the original production. Ultimately, this view … is as nonsensical as all restitution and restoration of past life. Reconstructing the original circumstances, like all restorations, is a futile undertaking in view of the historicity of our being. What is reconstructed, a life brought back from the lost past, is not the original. In its continuance in an estranged state it acquires only a derivative, cultural existence.”[26] If one ignores the fact that we are immersed in history and conditioned by it, one will attempt to reconstruct the world and meaning of the Constitution as if it were possible to achieve an exact and usable model.
Gadamer endorses instead integration, the method supported by Georg Wilhelm Friedrich Hegel, where “the historical approach of ideative reconstruction is transformed into a thinking relation to the past.”[27] Interpretation does not consist “in the restoration of the past, but in thoughtful mediation with contemporary life.”[28] Only creative integration of past meaning with current concerns can yield the true meaning.
Integration seems to be similar to the “constitutional construction” advocated by the “new originalists,” such as Keith Whittington, Randy Barnett, and Lawrence B. Solum. The meaning derived from traditional interpretive methods that look to internal aspects of the Constitution, such as text and structure, should be supplemented with materials outside of the text, such as moral principles or pragmatic considerations, “where the text is so broad or so undetermined as to be incapable of faithful but exhaustive reduction to legal rules.”[29] “Where the original meaning ‘runs out,’ ‘fails to provide a unique rule of law,’ or does not ‘dictate a unique application,’ … the new originalists think that ‘an act of creativity beyond interpretation’—‘the construction of meaning’—is required.”[30] This approach recalls what Gadamer terms integration.
III. Judicial Precedent and Historical Practices
The most commonly cited source of constitutional meaning is the Supreme Court’s prior decisions on questions of constitutional law.[31] Under this method, a judge or justice applies rules established by precedent to new cases. For most if not all justices, judicial precedent provides principles, rules, and standards to govern judicial decisions in cases with arguably similar facts.
For Michael J. Gerhardt, “it is practically impossible to find any modern Court decision that fails to cite at least some precedents in support.”[32] The concept of “judicial precedent” can be limited to prior decisions of the Supreme Court, but according to Gerhardt is much broader, including norms, historical practices, and traditions that the justices have deliberately chosen to follow.[33] Gerhardt also notes that “applying precedents requires interpreting them, interpreting them frequently entails modifying them, and modifying them often entails extending or contracting them.”[34] This is an approach that Gadamer would endorse.
Similar, but not identical, to judicial precedent is the method of historical practices, which draws constitutional meaning from prior decisions of the political branches, particularly their long-established practices.[35] Courts have viewed historical practices as a source of the Constitution’s meaning in cases involving the separation of powers, federalism, and individual rights, particularly when the text provides no clear answer. The debate over historical practices as a mode of interpretation echoes many elements of the debates over original meaning and judicial precedent. The supporters of this method argue that when the text of the Constitution is ambiguous, the use of historical practices is a legitimate interpretive tool. For instance, in the 1952 case Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court maintained that “deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them.”[36]
One problem, however, is how to approach precedent, as it too requires interpretation. Should one deal with precedent by employing textualism or original meaning? In other words, should one deal with precedent literally, looking at its plain meaning and maintaining that there is an objective meaning in light of textualism? Or should the precedent be understood as it generally was at the time of its adoption and as having an objective and unchanged public meaning, in line with original meaning? Or should textualism and original meaning be understood as applying only to the Constitution as a special and unique document? The method of precedent does not provide explicit guidance for its application.
IV. Other Modes of Interpretation
The other four modes of interpretation do not appear to constitute full-fledged methods. They complement the four main methods and offer additional guidance, but don’t involve broad hermeneutic questions.
In employing pragmatism, the Supreme Court weighs the probable practical consequences for society or the political branches (legislative and executive) of one interpretation of the Constitution against others.[37] This recalls consequentialism and utilitarianism in ethics. The moral reasoning approach argues that certain moral concepts or ideals underlie some terms in the Constitution, such as “equal protection” or “due process of law,” and that those concepts should inform judicial interpretations.[38] The national ethos approach draws on the distinct character and values of national identity and the nation’s institutions to ascertain the Constitution’s meaning; values have included the family as an institution and abhorrence of coercion.[39]
Structuralism is based on the structure of the Constitution and structural rules are inferred from the relationships specifically outlined in the document—the relationships between the three branches of the federal government, the national and state governments, and government and the people.[40] For structuralists, the best way to interpret the Constitution is to draw inferences from those deeper structures and institutional relationships, which are embedded in the document and which have endured and been reaffirmed over time.[41]
These eight main modes of constitutional interpretation are of course broad categories that may overlap. The justices may rely on more than one method at the same time.
V. Useful Hermeneutic Tools
Hermeneutics offers other tools to constitutional interpreters. Ricoeur points out that words and sentences are always “polysemic”: they can have more than one meaning and therefore necessarily call for interpretation. “The polysemy of a text … invites multiple readings.”[42] “There is a problem of interpretation … because of the very nature of the verbal intention of the text. This intention is something other than the sum of the individual meanings of the individual sentences. A text is more than a linear succession of sentences. It is a cumulative, holistic process. . . . Therefore the kind of plurivocity which belongs to texts … is typical of the text considered as a whole, open to several readings and to several constructions.”[43] Interpreters should be alert to this variety of potential meanings and to what Ricoeur calls the text’s verbal intention.
Similarly, Ricoeur recommends a “hermeneutics of suspicion” like that found in Marx, Nietzsche, and Freud, which holds that nothing ultimately means what it first seems to say. A better definition for this healthy attitude is a “hermeneutics of critique.” In this approach, interpretation, as a “deciphering of hidden meaning in the apparent meaning,” as “unfolding the levels of meaning implied in the literal meaning,” acquires a critical function by bringing out unrevealed or distorted meaning that lies beneath the surface of commonly accepted meaning.[44]
Ricoeur suggests a specific way of approaching a text. The goal of interpretation, he says, is “appropriation.” Appropriation “responds to the matter of the text, and hence to the proposals of meaning which the text unfolds. It is thus the counterpart of the distanciation which established the autonomy of the text with respect to its author, its situation and its original addressee. . . . To appropriate is to make what was alien become one’s own. What is appropriated is indeed the matter of the text. But the matter of the text becomes my own only if I disappropriate myself in order to let the matter of the text be. So I exchange the me, master of itself, for the self, disciple of the text.”[45] This attitude of receptivity, of relinquishing one’s self to become a disciple of the text, can enhance legal interpretation. Also noteworthy is the attention to the “matter of the text.”
Equally useful is Gadamer’s attitude of openness and humility, a correlate of his concept of conversation. For Gadamer, we exist with others and therefore need to carry out a constant dialogue born of openness to inquiry: “[h]ermeneutic philosophy … insists that there is no higher principle than holding oneself open in a conversation.”[46]Conversation, either with another or with a text, involves humility: hermeneutics is “the ability to listen to the other in the belief that he could be right,”[47] and one should “always recognize in advance the possible correctness, even the superiority, of the conversation partner’s position.”[48]
Prejudice is another helpful concept. “Actually ‘prejudice’ means a judgment that is rendered before all the elements that determine a situation have been finally examined,” Gadamer recalls.[49] We all have prejudices: we all come to a text with expectations, prejudgments, and preconceptions, and we should acknowledge this instead of maintaining that we are impartial. Thinking of being free from prejudice can lead to error: “A person who believes he is free of prejudices, relying on the objectivity of his procedures and denying that he is himself conditioned by historical circumstances, experiences the power of the prejudices that unconsciously dominate him as a force from behind.”[50]One must instead be aware of one’s own prejudices, assess them, and decide which ones to keep and which to eliminate.
There are legitimate prejudices, Gadamer says, and in fact prejudices are a condition for understanding.[51] The task is “how to distinguish the true prejudices, by which we understand, from the false ones, by which we misunderstand.”[52] By doing so, legitimate prejudices can lead us toward knowledge, and in that sense are productive.[53]
We all bring our own conceptions to interpretation, and that is not only unavoidable but a good thing. “To try to escape from one’s own concepts in interpretation is not only impossible but manifestly absurd,” Gadamer says.[54] “To interpret means precisely to bring one’s own preconceptions into play so that the text’s meaning can really be made to speak for us.”[55] Playing our conceptions against those of the text can ignite what Ricoeur calls the “spark of imagination” that effects “a ‘thinking more’ at the conceptual level.”[56] This does not mean an alteration of the meaning by injecting our viewpoint, but a testing of our approach against that of the text.
As we all have preconceptions, so we all have a “horizon,” Gadamer says. “The horizon is the range of vision that includes everything that can be seen from a particular vantage point.”[57] In knowing, we all are in a certain place and with a certain viewpoint. Our horizon is a limit but is also what makes knowledge possible. Horizons are also dynamic, not static. “The horizon is … something into which we move and that moves with us. Horizons change for a person who is moving,” as does our thinking.[58]
Since we all think within a certain mental horizon, that horizon inevitably affects our interpretation, Gadamer says. “Understanding is certainly not concerned with ‘understanding historically’—i.e., reconstructing the way the text came into being. Rather, one intends to understand the text itself. But this means that the interpreter’s own thoughts, too, have gone into reawakening the text’s meaning. In this the interpreter’s own horizon is decisive, yet not as a personal standpoint that he maintains or enforces, but more as an opinion and a possibility that one brings into play and puts at risk, and that helps one truly to make one’s own what the text says.”[59] We unavoidably bring to the text our own viewpoint, but this is not a limitation but a widening of horizons, a testing of possibilities, a way of making the text our own. We do not inject our viewpoints into the text, but tentatively and carefully play them against the text to bring out the full meaning. Only in this way can the full meaning be grasped. Note the stress on understanding “the text itself.”
Gadamer repeatedly talks about the active role of the interpreter, who brings “himself and his own concepts into the interpretation.”[60] But this does not mean that interpreters impose, even unwittingly, their interpretation on the text, or that the interpreters’ viewpoints affect their interpretation. Rather, there is an interplay between the interpreter’s own vision and the meaning of the text, and it is only through this interplay that the text reveals its sense.
Interpretation is never fully achieved, Gadamer says. “The discovery of the true meaning of a text … is never finished: it is in fact an infinite process. Not only are fresh sources of error constantly excluded…but new sources of understanding are continually emerging that reveal unsuspected elements of meaning.”[61] The task of understanding requests continuous effort.
Finally, the interpreter of the Constitution can be guided by the spirit expressed in this sentence: “Hermeneutics … consists in subordinating ourselves to the text’s claim to dominate our minds. Of this, however, legal and theological hermeneutics are the true model. To interpret the law’s will or the promises of God is clearly … a form of service.”[62]
Scalia and Garner lamented the fact that “many judges who believe in fidelity to text lack the interpretive tools necessary to that end.”[63] Hermeneutics offers such interpretive tools. What interpreters need to do is simply pick them up and use them.
[1] See generally Hans-Georg Gadamer, Truth and Method (1960).
[2] Brandon J. Murrill, Cong. Rsch. Serv., R45129, Modes of Constitutional Interpretation (2018).
[3] Id.
[4] Justice Antonin Scalia served from 1986 to 2016.
[5] Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts xxvii (2012)
[6] Justice Hugo Black served from 1937 to 1971.
[7] Hugo L. Black, A Constitutional Faith 45–46 (1968).
[8] Murrill, supra note 2, at 7.
[9] Paul Ricoeur, Hermeneutics and the Critique of Ideology, in Hermeneutics and the Human Sciences. Essays on Language, Action and Interpretation 51 (John B. Thompson ed., 1981) [hereinafter Hermeneutics].
[10] Truth and Method, supra note 1, at 395.
[11] Murrill, supra note 2, at 2.
[12] Myers v. United States, 272 U.S. 52 (1925) (noting that this was the opinion of Chief Justice William Howard Taft, who served from 1921 to 1930).
[13] Murrill, supra note 2, at 7.
[14] Scalia said that he was both a textualist and an originalist
[15] Antonin Scalia, Speech at the Catholic University of America (Oct. 18, 1996).
[16] Murrill, supra note 2, at 8.
[17] District of Columbia v. Heller, 554 U.S. 570 (2008).
[18] Truth and Method, supra note 1, at 518.
[19] Id. at 296.
[20] Id.
[21] Id. at 324–341, in a section entitled The Exemplary Significance of Legal Hermeneutics.
[22] Id. at 328.
[23] Id. at 326–27.
[24] Id. at 166.
[25] Id.
[26] Id. at 167.
[27] Id. at 168.
[28] Id. at 169.
[29] Keith Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning 5 (1999).
[30] Mark Greenberg, Legal Interpretation, Stan. Encyc. of Phil. (July 2021), https://plato.stanford.edu/entries/legal-interpretation/; see also Murrill, supra note 2, at 1.
[31] Murrill, supra note 2, at 2, 10.
[32] Michael J. Gerhardt, The Power of Precedent 147–148 (2008).
[33] Id. at 3.
[34] Id. at 35–36.
[35] Murrill, supra note 2, at 22.
[36] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring).
[37] Murrill, supra note 2, at 13.
[38] Id. at 15.
[39] Id.
[40] Id. at 18.
[41] Richard C. Boldt, Constitutional Structure, Institutional Relationships and Text: Revisiting Charles Black’s White Lectures, 54 Loy. L.A. L. Rev. 675 (2021).
[42] Paul Ricoeur, Phenomenology and Hermeneutics, in Hermeneutics 68 (1981).
[43] Paul Ricoeur, The Model of the Text, in Hermeneutics 174 (1981).
[44] Paul Ricoeur, Existence and Hermeneutics, in The Conflict of Interpretations: Essays in Hermeneutics 13 (Don Ihde ed. 1974).
[45] Phenomenology and Hermeneutics, supra note 43, at 73.
[46] Hans-Georg Gadamer, Philosophical Hermeneutics 189 (1977) [hereinafter Philosophical].
[47] Jean Grondin, Gadamer: A Biography 250 (2003).
[48] Philosophical, supra note 47, at 189.
[49] Truth and Method, supra note 1, at 273.
[50] Id. at 360.
[51] Id. at 277.
[52] Id. at 298–99.
[53] “Productive” is a word liked by hermeneutic theorists.
[54] Truth and Method, supra note 1, at 397.
[55] Id.
[56] Paul Ricoeur, The Rule of Metaphor: Multi-Disciplinary Studies of the Creation of Meaning in Language 303 (1978).
[57] Truth and Method, supra note 1, at 302.
[58] Id. at 304.
[59] Id. at 388.
[60] Id.
[61] Id. at 298.
[62] Id. at 311.
[63] Reading Law, supra note 5, at 7.