In this Journal entry, Mr. Fischler endeavors to apply Integral theory to Constitutional Interpretation.
He identifies 4 legal methods or models of interpretation and then applies them to the 4 quadrants of the AQAL model. He goes on to say that by taking into account both the interpreter (i.e. the Judge) and the interpreted (i.e. a given provision of the Constitution or the Framer who made the law?) we end up with 8 perspectives to account for.
I was eager to find a coherent Integral theory of Constitutional interpretation, but instead I am left with the sense that categories and concepts have been consistently shifted around and manipulated and applied where they do not fit.
To the upper left (UL) quadrant, he assigns the "original intent school."
The "original intent" school holds that one must determine how the Framers of the Constitution intended for a given provision to be interpreted. If you want to know what the right to due process means, look at what the Framers thought about it. Period.
How do the intentions of a collective body of Constitutional framers plus hundreds of delegates in 13 state conventions lead us to the notion that the "original intent" theory belongs in the UL quadrant? This is the reserve of the interiority of an individual. Are we talking about the collective Framers as an individual holon?
Moreover, it is meaningless to talk about the intent of any single individual in the context of interpreting the Constitution. It was a classic case of group activity. And if we cannot do that, then we don't have an UL event.
Yet, let's just focus on Thomas Jefferson, for example. Assuming that his intent alone matters. His own 1st person view of his UL perspective is beyond our knowing. We are not Thomas Jefferson.
We can have a 3rd person view of his UL view however. The 1 x 3 and 1 x 1 views applied to the 4 quadrants properly gives us 8 perspectives. It may be meaningful to regard the attempt to divine the intent of Thomas Jefferson from a third person perspective as belonging to the UL quadrant.
But the author is not talking about that. He seems to be talking instead about divining the "interpreted" (i.e. the law itself) as an UL event. I am having a hard time understanding how a "law" can have a subjective interior.
The author then seems to make room for the "interpreter" (i.e. the Judge) to have an UL event in his or her interior subjective experience during the act of interpreting the law. This seems like a hugely fuzzy idea. When a judge tries to wrestle with a law and apply it to facts in a case, by definition it is no longer a pure UL event. The Judge is trying to understand others and weigh values and find happy intersubjective fits between the law and the facts of the case and the parties and the Framers.
I applaud the attempt to try and squeeze "original intent" interpretation into the UL, but I don't see it working out.
The author then moves to the upper right (UR) and aligns the "textualist" school with this quadrant. To explain "textualism" he quotes Justice Scalia who says that he tries to give the text of the Constitution the meaning that it bore at the time it was adopted by the people. That is to say, when the Constitution was ratified in 1789, what did the words "due process" mean to the people, for example?
It is not clear how "textualism" is an UR event. UR perspective involves looking at the exterior of an individual holon. If we want to put a law's exterior into the UR quadrant, we will have to focus on the paper and ink, not the meaning of the law!
Does it make sense to even say that a law (i.e. the interpreted) is an individual anything? Let alone that it can have an exterior?
How does the act of trying to understand the understandings of 10 million people in 1789 involve an UR event?
The author then goes to the lower left (LL) and aligns the Justice Holmes realist approach there, explaining that to Holmes, what judges actually do is figure out the result they want to arrive at first, and then come up with reasons why that result can be supported, rather than rationally "discovering" the law.
If anything, the focus on the interior process of an individual judge comes mighty close to fitting into the UL quadrant, rather than the UR. But the author goes on to add that the Judge's predetermined notions are culturally estabished, and that this thereby makes the event on of inter-subjectivity. Well, couldn't that be equally said about any approach - that the Judge's notions are culturally established? Why is this particular culturally-established interior view a nice fit into the LL intersubjective quadrant?
To the lower right (LR) quadrant, the author aligns the case method and says it was developed by Dean Langdell of Harvard. (Note: Dean Langdell did not develop the case method of interpretation. It was comfortably a central feature of the English common law tradition for centuries before Dean Langdell was born. What he is credited with is using the case method as a primary tool of instruction in law schools. Big difference.)
So, what is the case method? In interpreting the law, you identify the most closely related cases previously decided by courts of authority, and you extract guiding principles that permit you to arrive at analogies and inferences in the present case.
The study of cases is the study of the meaning of individual judges who wrote or supported the cases. This involves a very small group of people and what they were thinking at the time they wrote what they wrote. How is this an example of the exterior of anything?
In conclusion, the application of the quadrants to the exemplars of Constitutional interpretation seems mismatched at every turn.
And the author has left out other theories of Constitutional interpretation, which hardly permits for an all-encompassing theory of everything in the field. Where is the discussion of Instrumentalism, Historical Literalism, Contemporary Literalism, or Normative Reinforcement?
For a truly coherent theory to arise in this field we need to make sense out of the following and be explicit about what we are talking about:
1. There is a document known as the Constitution.
2. It contains laws.
3. It is often unclear whether a given passage contains one law or multiple laws.
4. The document contains text that was assented to by a certain number of men in the 18th century, and was then added to over the last 200 years.
5. Each man had his own UL event. But his statements about the laws were not reflections of his UL event. They were statements about what he has concluded are the LL commonalities.
6. There is also a 3rd person perspective of each man's UL perspective.
7. If we read a legal scholar who is discussing the interior of one of these men (the Framers), we now have a 3rd person perspective on a 3rd person perspective of a 1st person event.
8. When we talk of the interpreted and the interpreter, are we talking about the words on the page (the law) as the interpreted or are we talking about the individuals who created the law as the interpreted?
9. If we talk about the exterior (UR) of a law, how can that mean anything more than the ink and paper and still be on the right?
As I said, I was excited about the possibility of an Integral legal theory of legal interpretation (by the way, why is this called "Constitutional" interpretation, when the real topic is simply judicial interpretation of any law, statutory, common law, or otherwise?), but the minute I started reading I began to feel as if I was running on marbles with the ground shifting under my feet with each new sentence.
What the article does well is alert judges that there is great value to them as human beings in learning about Integral and broadening their perspectives on the world. But this is true for teachers, and podiatrists, and baseball coaches just as well.
It is a great article, if you take everything about the law out of it. The article does not even begin to build a coherent theory of legal interpretation. To do this, we will have to be much more precise about what the quadrants mean, what we are talking about when we talk of the "interpreted" and the "interpreter," and what the full panorama of current theory of legal interpretation truly encompasses.