posted by Gerard Magliocca
Normally I run away screaming when somebody starts discussing interpretive theory. That’s partly because I just don’t find the subject that interesting, but another reason is that I’ve always seen an interpretative approach as nothing more than a presumption that is always riddled with so many exceptions that it’s hard to figure out what the presumption is.
There is a thought, though, that occurs to me, with apologies if it’s already out there. The premise behind most arguments about interpretation is that the goal is to be faithful to the source. Now, of course, reasonable people disagree about how to do that. Maybe it’s textualism, maybe it’s originalism, maybe it’s living constitutionalism, etc.
There are instances, however, in which that is not an accurate description of interpretation. A better characterization is that interpretation is about justifying a result that everybody wants even though it not in the source. In other words, some exercises of interpretation are not about being faithful at all. They are about being unfaithful. I wonder, though I haven’t thought this through, how that changes one’s view of the best interpretive theory.
By the way, if you’re looking for an example of “unfaithfulness,” consider Bolling v. Sharpe, which is really hard to square with the legal materials available in 1954, even though everybody thinks that result was right and necessary.