Jimenez on a Borgean Theory of Constitutional Interpretation

ICYMI: Marco Jimenez, Stetson University College of Law, published Towards a Borgean Theory of Constitutional Interpretation in volume 40 of the Pepperdine Law Review (2012). Here is the abstract.

This Article presents a reworking of Jorge Luis Borges’ short story, Pierre Menard, Author of the Quixote, as applied to the U.S. Constitution. In Borges’ original story, which deals with important issues governing interpretation, the creation of meaning, and the ascertainment of original intent, Borges’ fictional scholar, Pierre Menard, undertakes to translate Cervantes’ Don Quixote for a modern audience by creating a Quixote that could have been written by Cervantes today. To do so, Menard begins by immersing himself in the world of 17th century Spain, much as an originalist today might immerse him or herself in 18th century America, as a first step in providing an accurate, yet modern, “translation” of the text. As he undertakes the process of translation, however, Menard comes to recognize that the words and phrases used by Cervantes have come to mean something quite different today. Further, he realizes that any change to the words themselves would fail to produce a truly modern translation of this canonical text because it would cause the loss of textual richness and interpretative understanding accumulated over generations. Therefore, in a stroke of genius, Menard recognizes that the best way to translate the Quixote to preserve the text’s modern meaning is to produce word-for-word, line-for-line “translation” of the antiquated original! It is important to note that Pierre Menard adamantly maintains that his word-for-word rendition of the original words is not simply a “copy” of the original text. Rather, as Borges’ original story suggests, Menard has actually produced a much more nuanced text than Cervantes, one that, though verbally identical, “is almost infinitely richer” in that the words penned by Cervantes no longer mean what they once did, but have become imbued with the accumulated historical understanding of many generations. The parallels to the current debate surrounding the interpretation (or translation, if you will) our own Constitution are unmistakable. The words no longer mean what they once did, and the best way to convey the current meaning of the Constitution is by using the antiquated words and phrases of the 18th century original. These words and phrases, though they have themselves remained the same, are now viewed through the lens of the historical events (e.g., the Civil War, Reconstruction, and New Deal) and judicial precedents (e.g., the Dred Scott decision, Plessy v. Ferguson, and Brown v. Board of Education) so powerful as to have changed the meaning (though not the spelling) of the words themselves! Therefore, in the text that follows, I have attempted to present these parallels by adapting Borges’ story to the U.S. Constitution. I have tried to keep as much of Borges’ original text as possible – including even the structure of his seemingly obscure academic footnotes – while changing what was necessary of the characters, footnotes, and themes to discuss legal, rather than literary, topics. More specifically, in my version of the story, I attempt to propose, through the text, and develop, through the footnotes, a theory of constitutional “interpretation as translation” based on the scholarship of Borges’ fictional character, Pierre Menard, as told by a law professor intimately familiar with Professor Menard’s work. In my version, Professor Menard takes it upon himself to update and revise the U.S. Constitution for the twenty-first century and, in so doing, is confronted with a difficult problem of preserving the document’s modern meaning. Professor Menard acknowledges that many of the original words, phrases, and clauses used by the Framers have taken on new meaning over time, or have lost their meaning altogether, which renders the process of interpretation particularly elusive and odious. In a deeply profound exploration of the meaning of meaning, Professor Menard comes to the stark realization that his project of updating the Constitution for the modern generation must necessarily consist not in interpreting the text, but in translating it. Having made this methodological leap, Professor Menard is next faced with the daunting task of choosing carefully the words, phrases, and clauses that will convey to the modern generation how the Constitution’s text, which was drafted over two centuries ago, should be understood today. Here, Professor Menard makes his second leap: given that the words of the constitution have become imbued with new meaning over time, in part due to historical circumstances, in part due to subsequent legislation, and in part due to judicial “interpretation” and development, the best way of “translating” the Constitution to capture and preserve how it is commonly understood today consists, ironically, in rewriting the text so that it is identical to the original! In undertaking this task, Professor Menard shows how constitutional “interpretation,” even (especially) while remaining faithful to the original text, can be better thought of not as an act of constitutional discovery, but one of constitutional creationism, in which the reader (usually a judge, but arguably the governed) creates meaning by translating and transforming the source text into something simultaneously new and familiar. This places Professor Menard’s theory in the unique position of both accepting textualism while rejecting its usual bedfellow, originalism, at least as that latter concept is commonly understood today. According to Professor Menard, original intent is relevant only to the extent that We The People of the here and now have interpreted this intent, but by this point, it is our contemporary translation (or interpretation, if you prefer) of the Founders’ intent, rather than the Founders’ intent itself, that ultimately controls and governs what we call meaning.

Download the article from SSRN at the link.