Abstract:In this paper, I show that certain parts of constitutional texts can plausibly be thought of as having a meaning that changes and evolves on its own. This idea is widely rejected, especially but not only by a group of legal theorists who subscribe to a theory of constitutional interpretation called originalism. In a recent paper, the originalist Lawrence Solum has defended the so-called “fixation thesis”, according to which the meaning of the constitutional text is fixed when it was first (...) enacted and does not change later on. Solum rejects the idea that the meaning of the constitutional text might evolve because he cannot identify a plausible way in which any text could have an evolving meaning. I argue that there are such texts and offer folk-fairy-tales as an example. I then go on to present reasons why constitutions can plausibly be considered to be texts that, like fairy-tales, change their meanings independently. (shrink)

Benhabib recasts the Derridean idea of `iteration' in democratic terms. While adhering to the original idea that both the fundamental terms of political consociation and the identity of the people itself is `radically' open, Benhabib argues that deliberative norms do and should frame the process of reiteration. For the deliberative democrat, the democratic constitution is not a would-be barrier to iterability (which we are told cannot be contained anyway); it is rather a communicative or discursive space in which the hitherto (...) suppressed or not yet present voice of other people finds its way and expands the terms of meaning giving and hence reason giving. The democratic constitution enables iteration; it is one side of a dialectic that relies upon, balances and, in some sense, makes the most of people power. Immigrants, in the final analysis, are the latest group to proclaim their presence in the sphere of constitutional interpretation, and thereby recalibrate the interpretive frame. And when they make their presence known in this way they have truly become a part of the `people'. When, however, they make their presence known in ways that undermine constitutional self-understanding, instead of engaging it, they are `not us'. Benhabib is hesitant to add this last bit, as she is hesitant to admit how much the constitutional identity of a people `rift with otherness' is reliant upon the historical referent and the generative/steering power of the right sort of constitutional court. (shrink)

I. CONSTITUTIONAL ORIGINALISM By “originalism” I mean the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters. At least since Marbury, in which Chief Justice Marshall emphasized the significance of our Constitution's being a written document, originalism in one form or another has been a major theme in the American constitutional tradition.

The distinction between a concept and its different conceptions plays a prominent role in debates about constitutional interpretation. Proponents of a dynamic reading of the Constitution-espousing interpretation of constitutional concepts according to their contemporary understandings typically rely on the idea that the Constitution entrenches only the general concepts it deploys, without authoritatively favoring any particular conception of them-specifically, without favoring the particular conception of the relevant concept that the framers of the Constitution may have had in mind. Originalists argue, to (...) the contrary, that fidelity to the Constitution requires an understanding of its provisions according to the particular conception of the abstract concepts prevalent at the time of enactment, and not those we may now favor. My main purpose in this essay is to put some pressure on the linguistic considerations that are presented in this debate, arguing that they are much more problematic than the proponents of both positions assume. I will try to show that the debate here is actually a moral-political one, mostly about the main rationale of a constitutional regime and the conditions of its legitimacy. It is, primarily, a debate about what constitutions are for, and what makes them legitimate. But I will only get to this moral issue at the end. The main part of the essay will strive to show that the semantic considerations employed in this debate are inconclusive; the way concepts are used in a given context depends on various pragmatic determinants, and those, in turn, depend on the nature of the conversation in question. The moral disagreement is, ultimately, about the kind of conversation that constitutional regimes are taken to establish. (shrink)

This article attempts to outline the contours of a transcendental phenomenology that would retain the intuition of a healthy realism. In this connection it is proposed to reinterpret the Husserlian notion of constitution, presenting constitution as a discover of reality. A distinction is made between strong and weak versions of constitution. It is constitution in the weak sense that combines, in our opinion, with the realist attitude. In order to achieve the above-mentioned goal (to present constitution as discovery), the Husserlian (...) notion of object sense is clarified: it is excluded as a representative or substitute of an intentional object; object sense is seen as a mode of givenness, as а medium by means of which the object is implied or given. The idea of a meaningful discovery of reality is best matched by this treatment of object meaning. It is thus possible to combine the realist attitude with the idea of meaningful access to the real, thus avoiding, on the one hand, naive realism and, on the other hand, transcendental-idealist implications. The Husserlian notion of constitution is further related with the idea of forming interpretative schemes of understanding the world, which may include political agendas, scientific paradigms, systems of speculative metaphysics, and religious faith. It is emphasized that, although the rejection of interpretation is impossible, interpretive schemes must be reconciled with real facts and events in order to “fine-tune” reason and reality. Finally, a separation is undertaken with the conception of J.- L. Marion, which relies on the deflation of meaning in favor of the given as such, calling into question the status of man as a being who possesses reason, who discovers reality and constitutes its meaning. (shrink)

This paper defends the normativity of meaning thesis by clearing up a misunderstanding about what the thesis amounts to. The misunderstanding is that according to it, failing to use an expression in accordance with the norms which constitute its meaning amounts to changing the expression’s meaning. If this was what the thesis claimed, then it would indeed be easy to show that meaning norms do not yield prescriptions and cannot be followed. However, there is another reading: what is constitutive (...) of meaning is not the norm’s being followed, but the norm’s being applicable. On this reading, some standard arguments against the thesis lose their force. After discussing the alternative reading and its consequences, the paper goes on to sketch a model of how norms of meaning become applicable in the first place. This model supports the view that talk of meaning has its pragmatic home in contexts of linguistic calibration. (shrink)

By analysing original sources and evaluating conceptual frameworks, this book discusses the idea proclaimed in the Preamble to the Constitution that Australia is a federal commonwealth. Taking careful account of the influence which the American, Canadian and Swiss Constitutions had upon the framers of the Australian Constitution, the author shows how the framers wrestled with the problem of integrating federal ideas with inherited British traditions and their own experiences of parliamentary government. In so doing, the book explains how the Constitution (...) came into being in the context of the groundswell of federal ideas then sweeping the English-speaking world. In advancing an original argument about the relationship between the formation of the Constitution, the representative institutions, configurations of power and amending formulas contained therein, fresh light is shed on the terms and structure of the Constitution and a range of problems associated with its interpretation and practical operation are addressed. (shrink)

ABSTRACT: A traditional objection to inferentialism states that not all inferences can be meaning-constitutive and therefore inferentialism has to comprise an analytic-synthetic distinction. As a response, Peregrin argues that meaning is a matter of inferential rules and only the subset of all the valid inferences for which there is a widely shared corrective behaviour corresponds to rules and so determines meaning. Unfortunately, Peregrin does not discuss what counts as “widely shared”. In the paper, I argue for an empirical plausibility (...) of Peregrin’s proposal. The aim of the paper is to show that we can find examples of meaning-constitutive linguistic action, which sustain Peregrin’s response. The idea is supported by examples of meaning modulation. If Peregrin is right, then we should be able to find specific meaning modulations in which a new meaning is publicly available and modulated in such a way that it has a potential to be widely shared. I believe that binding modulations – a specific type of meaning modulations – satisfy this condition. (shrink)

The language of balancing is pervasive in constitutional rights jurisprudence around the world. In this book, Jacco Bomhoff offers a comparative and historical account of the origins and meanings of this talismanic form of language, and of the legal discourse to which it is central. Contemporary discussion has tended to see the increasing use of balancing as the manifestation of a globalization of constitutional law. This book is the first to argue that 'balancing' has always meant radically different things in (...) different settings. Bomhoff uses detailed case studies of early post-war US and German constitutional jurisprudence to show that the same unique language expresses both biting scepticism and profound faith in law and adjudication, and both deep pessimism and high aspirations for constitutional rights. An understanding of these radically different meanings is essential for any evaluation of the work of constitutional courts today. (shrink)

Our beliefs and inferential transitions are subject to evaluation as rational or irrational by reference to general epistemic norms. But what could determine certain norms as the correct ones? This chapter explores and opposes the answer that certain patterns of belief formation are justified by virtue of the fact that they constitute the relevant concepts or the meanings of the relevant words. This ‘semantogenetic’ proposal goes back to Hilbert, Poincare, and the logical positivists, and was recently defended by Boghossian, Peackocke, (...) Hale, and Wright. Among the arguments developed against it are that although it might account for the epistemic legitimacy of certain beliefs, it cannot explain why certain commitments are epistemically obligatory; and that the practices that provide words with their meanings are ‘conditionalized’ and therefore do not coincide with the practices recommended by our epistemic norms. (shrink)

I discuss some problems faced by the meaning‐inconsistency view on the liar and sorites paradoxes which I have elsewhere defended. Most of the discussion is devoted to the question of what a defender of the meaning‐inconsistency view should say about semantic competence.

Several authors have recently argued that intelligibility, rather than value, constitutes life’s meaning. In this paper I criticize the intelligibility view by offering examples of cases in which i...

As its title suggests, this is a book about constitutional interpretation. More specifically it is an articulation and defense of that particular method of constitutional interpretation, known as originalism, which looks to the original intent of the constitution’s framers as a benchmark against which interpretation is to be made. Professor Whittington believes “that originalism is the method most consistent with the judicial effort to interpret the written constitutional text and that an originalist jurisprudence facilitates the realization of a political system (...) grounded on popular sovereignty”. I think it is fair to say that in the current legal, political, and philosophical climate, originalist theories are pretty much on the defensive, which makes Whittington’s book all the more timely and valuable. (shrink)

Rejecting judicial supremacy in constitutional interpretation, this paper argues that understanding the interpretation of constitutions to be a solely legal and judicial undertaking excludes citizens from such activity. The paper proffers a two-pronged classification of analyses of constitutional interpretation. Implicit accounts discuss interpretation without reflecting on whether such activity can or should be performed by non-judicial institutions as well. Explicit accounts ask whether interpretation of constitutions is a matter to be dealt with by courts and answer affirmatively. I criticise both (...) camps. Implicit accounts fail to explain why constitutional interpretation is purely judicial in character. Explicit accounts do not provide enough reasons why the judiciary is allegedly the ideal institution to give constitutions meaning with final authority, both in instrumental and normative terms. The paper closes by suggesting avenues for future research. (shrink)

Analyzing the constitutionality of a law is a process of constitutional interpretation which does not limit itself to comparing two texts in order to see whether they are concordant or not. The nature of constitutional interpretation is the subject of this article, a subject that is dealt with from the perspective of the dispute between originalism and non-originalism (interpretivism) prevalent within the contemporary philosophy of law, especially the American one. The article offers a synthetic view on some of the most (...) controversial issues pertaining to the theory and methodology of contemporary constitutional interpretation, such as: whether the interpretation of the Constitution is guided by the founders’intentions or by the text’s own words; whether the meaning of the Constitution is determined by the intentions, aims or values of the founders’ generation or by those of the contemporary generation? What are the grounds that justify the authority of the constitutional text, in other words, does this authority derive from its constraining capacityorfromitsabilitytobestowdemocraticlegitimacy?Constitutional interpretation must concentrate on the text or on the interpreter? Do the judges discover or build the constitutional meaning? In other words, is it the past or the present that guides the interpretation? Is the original interpretation the legitimate one or are legitimate the later interpretations of the constitutional text? (shrink)

How should sociologists use the word theory? Gabriel Abend’s recent insistence that this question should be tackled politically raises two important issues: Is sociology political? And if so, what normative implications follow for its organization? Drawing on Wittgenstein’s notion of family resemblance and post-Gramscian theories of hegemony, I argue that Abend’s proposal that semantic questions about theory can be addressed separately from ontological, evaluative, and teleological ones is untenable. Disagreements about the latter are constitutive, not merely supplementary to the (...) meaning of theory. Against Abend’s deliberative-democratically oriented vision, I propose an agonistic politics of theory. In doing so, I consider both the internal inconsistencies of deliberativism and the practical advantages and sociological relevance of agonism. (shrink)

In this chapter I seek to rehabilitate and elaborate the so-called “mischief rule” of English law. I begin by interrogating two views of legal and constitutional interpretation which make symmetrical mistakes about legal interpretation: Larry Alexander and Emily Sherwin’s view in Demystifying Legal Reasoning and Jack Balkin’s in Living Originalism. Against these views I argue that the appropriate interpretation of laws is guided by the “mischief” the legislators were trying to remedy when they created the law and by what the (...) legislators and the subjects of the law understand when laws are created or changed. (shrink)

Whenever an object constitutes, makes up or composes another object, the objects in question share a striking number of properties. This paper is addressed to the question of what might account for the intimate relation and striking similarity between constitutionally related objects. According to my account, the similarities between constitutionally related objects are captured at least in part by means of a principle akin to that of strong supervenience. My paper addresses two main issues. First, I propose independently plausible (...) principles by means of which to delineate, in a non-ad-hoc, non-stipulative and non-circular fashion, those properties which can be expected to be shared among constitutionally related objects in virtue of their being so related from those which in general cannot be expected to be shared, or which are shared for other reasons. Secondly,I spell out in detail the nature of the supervenience-principle at work in this context. My account thus aims at isolating, in a methodologically responsible fashion, the particular sort of restricted indiscernibility principle which is a component of the constitution-relation. (shrink)

Constitutional reform has been an important means to push populist authoritarian agendas in Hungary, Poland, Turkey and Venezuela. The embrace of constitutional means and rhetoric in pursuit of these agendas has led to the growing recognition of ‘populist constitutionalism’ as a contemporary political phenomenon. In all four examples mentioned above, democracy, popular sovereignty and direct plebiscitary appeal to the people is the rhetorical and justificatory framework for constitutional reform. This, I worry, gives democracy a bad name and reinforces (...) the widespread suspicion that citizens should not be directly involved in constitutional reform as popular participation can lead to dangerous majoritarianism and is easily manipulated by elite actors seeking to weaken constitutional checks and balances. But the problem, I argue, is not inherent in citizen’s participation in constitutional reform. In contrast to populist constitutionalism, I develop an idea of deliberative constitutionalism in which citizens can participate in constitution-making and reform without hijacking constitutionalism for majoritarian, nationalist or anti-pluralist ends. Deliberative constitutionalism as I understand it has four features: a Habermasian co-originality thesis that articulates the interdependence of democracy and liberalism mediated by a conception of discourse; a proceduralized idea of popular sovereignty that reduces the tension between appeal to the people and respect for pluralism; the centrality of the public sphere over the voting booth as the cradle of democracy; institutional innovations intended to include citizens in constitutional reform (including through referendums) but avoid majoritarian and populist pathologies. (shrink)

Constitutional interpretation is problematic because it can be difficult to distinguish legitimate interpretation from illegitimate change. The distinction depends largely on what a constitution is. A constitution, like any other law, necessarily has a meaning, which pre-exists judicial interpretation: it is not a set of meaningless marks on paper. Any plausible constitutional theory must offer an account of the nature of that meaning. In doing so, it must address two main questions. The first is whether the meaning of the constitution (...) is given solely by its words, or also by additional evidence of underlying intentions, purposes or values. The second question is whether, in either case, its meaning is determined by the original meanings, intentions, purposes or values of the founding generation, or by contemporary meanings, intentions, purposes or values. This question divides so-called 'originalists' from 'non-originalists'. This article discusses all these alternatives, and the main arguments for and against them. It is subtitled 'Originalism' because it defends a moderate version of that position; however, it is argued that this is equivalent to a moderate version of non-originalism. (shrink)

In Wittgenstein on Rules and Private Language, Saul Kripke articulates a form of scepticism about meaning. Even though there is considerable disagreement among critics about the reasoning in which the sceptic engages, there is little doubt that he seeks to offer constraints for an adequate account of the facts that constitute the meaningfulness of expressions. Many of the sceptic's remarks concern the nature of the guidance involved in a speaker's meaningful uses of expressions. I propose that we understand those remarks (...) as seeking to give shape to the idea that to use an expression under the guidance of one's understanding is to have a reason for that use, which one's understanding allows one to discern and act on. Any philosophical elucidation of meaning must adequately capture the rational nature of our linguistic acts. (shrink)

Adopting a communication as constitutive of organization (CCO) perspective on ethics and corporate social responsibility (CSR) invites us to create the conditions of a dialogue, discussion, or debate between various stakeholders, who can then try to confront their respective positions on a given issue, and possibly come to a decision regarding how a situation should be evaluated and/or responded to. As shown in this article, getting human stakeholders to voice their concerns about a specific situation is a way not (...) only to rationally confront multiple viewpoints on what should be done about it (à la Habermas) but also to allow elements of this situation to reveal themselves in a discussion. This is why any ethical decision has to experience a form of undecidability and surprisability. When beliefs and opinions can be called into question, it means that participants are ready to become attentive to what a situation might surprisingly call for. Communication is therefore a matter of ventriloquism, as human participants should also be considered the means by which elements of a situation manage to express themselves in a discussion, dictating specific courses of action over others. This concretely means that multiple voices can be heard in such a scene: not only the voices of the human stakeholders who speak to each other but also the voices of facts, principles, future generations, ecosystems, populations that are made to say things through these various turns of talk. (shrink)

‘Constitutive luck’ refers to luck that affects the sort of person one is. This article demonstrates that it is a philosophically troubling sort of luck, causing problems in, at least, ethics and political philosophy. Some, notably Susan Hurley, Nicholas Rescher, and Daniel Statman, have argued that such trouble can be avoided, by pointing out that the notion of constitutive luck is incoherent. The article examines this claim by means of a discussion of the idea of luck in (...) general, settling on an account of luck in terms of the notions of chance, value, and (lack of) control. This account is then used to show that the notion of constitutive luck is not incoherent. We are stuck with the problems made by constitutive luck. (shrink)

Legal studies and consequently legal history focus on constitutional documents, believing in a nominalist autonomy of constitutional semantics.Reconsidering Constitutional Formation in the late 18th and 19th century, kept historic constitutions from being simply log-books for political experts through a functional approach to the interdependencies between constitution and public discourse. Sovereignty had to be 'believed' by the subjects and the political élites. Such a communicative orientation of constitutional processesbecame palpable in the 'religious' affinities of the constitutional preambles. They were held as (...) 'creeds' of a new order, not only due to their occasional recourse to divine authority, but rather due to the claim for eternal validity contexts of constitutional guarantees. The communication dependency of constitutions was of less concern in terms of the preamble than the constituents' big worries about government organisation. Their indecisiveness between monarchical and popular sovereignty was established through the discrediting of the Republic in the Jacobean reign of terror and the 'renaissance' of the monarchy in the military resistance against the French revolutionary and later Napoleonic campaigns. The constitutional formation as a legal act of constituting could therefore defend the monarchy from the threat of the people (Albertine Statute 1848), could be a legal decision of a national constituent assembly (Belgian Constitution 1831), could borrow from the old liberties (Polish May Constitution 1791) or try to remain in between by referring to the Nation as sovereign (French September Constitution 1791, Cádiz Constitution 1812). Common to all contexts is the use of national sovereignty as a legal starting point. The consequent differentiation between constituent and constituted power manages to justify the self-commitment of political power in legal terms. National sovereignty is the synonym for the juridification of sovereignty by means of the constitution. The novelty of the constitutions of the late 18th and 19th century is the normativity, the positivity of the constitutional law as one unified law, to be the measure for the legality of all other law. Therefore ReConFort will continue with the precedence of constitution. (www.reconfort.eu). (shrink)

This chapter contains sections titled: Focus: The United States Theorizing about Privacy Meaning and Definition Questions of Value Conclusion References.

This paper reconstructs and critically analyzes Husserl’s philosophical engagement with symbolic technologies—those material artifacts and cultural devices that serve to aid, structure and guide processes of thinking. Identifying and exploring a range of tensions in Husserl’s conception of symbolic technologies, I argue that this conception is limited in several ways, and particularly with regard to the task of accounting for the more constructive role these technologies play in processes of meaning-constitution. At the same time, this paper shows that a critical (...) examination of Husserl’s account of symbolic technologies, particularly as developed in his mature, genetic phenomenology, can be enduringly fruitful—if some of the specific conceptual weakness of this account are identified and properly accounted for. My discussion will proceed as follows. In the first part I briefly analyze the early Husserl’s account of the role the ‘method of sensible signs’ plays in arithmetic cognition. In the second, main part I critically examine the bearing the genetic-phenomenological concepts of sedimentation and technization have on the conceptualization of symbolic technologies in Husserl’s work. In the final part I summarize the major strengths and weaknesses of Husserl’s account of symbolic technologies, and in the process make a case for the ongoing relevance of some of the crucial elements of this account. (shrink)

Certain works in the most recent Polish constitutional law literature suggest that there is acceptance of the principle or the concept of autonomous interpretation of a constitution (autonomy of interpretation of constitutional terms). The Constitutional Tribunal also makes reference to this in numerous rulings. Paradoxically, however, that concept is not very popular in legal theory. It might seem that Polish legal theoreticians and philosophers do not appreciate the concept of interpretation of a constitution devised through practice with the support of (...) constitutional law doctrine. It might, however, mean that opinions on autonomous interpretation of Polish Constitution are nothing more than rhetorical arguments formulated ad hoc not a coherent concept or a theory. This text is an attempt to analyse this concept and its potential in discussions surrounding application of the Polish Constitution. (shrink)

What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structural provisions of the Constitution of 1789. Such proposals are conventionally understood as placing constitutional options on the table as real options for constitutional change. Normative constitutional theory asks the question whether (...) these options are desirable - whether political actors (citizens, legislators, executives, or judges) should take action to bring about their plans for constitutional reform or revolution. Frequently, normative constitutional theories are criticized on the ground that they are undesirable, unwise, on inconsistent with the best theories of political morality and legitimate legal authority, but sometimes one hears a very different form of criticism, expressed in locutions such as the following: That is unrealistic. That's not possible. That is pie in the sky. You are imagining castles in the air. Your suggestion is utopian. That isn't feasible. These objections invoke the idea of ephemeral constitutional possibility - constitutional options that are not real or actual possibilities. What are our constitutional possibilities? How should we think about the feasible choice set for constitutional change? What are the differences between ideal and nonideal theory? What role should the ideas of path dependency and second best play in constitutional theory? These inquiries cross the lines between normative, positive, and conceptual constitutional theory. At the conceptual level, we can ask what phrases like constitutional possibility, ideal theory, and the feasible choice set mean. At the level of positive constitutional theory, we can ask about the forces and institutions that condition constitutional possibility. At the level of normative constitutional theory, we can ask about the implications of constitutional possibility for political morality. Constitutional Possibilities proceeds as follows. Part I introduces the idea of ephemeral constitutional possibilities. Part II will cobble together a conceptual toolkit for thinking about possibility and necessity in constitutional theory: the tools include: (a) the distinction between ideal and nonideal theory, (b) the notion of a constitutional second best, and (c) an introduction to possible-worlds semantics. Part III will explore the implications of the resulting proto-theory of constitutional possibility in two stages: stage one will investigate the normative implications, whereas stage two will reconnoiter a set of standards for making modal claims in constitutional arguments. Part IV provides a case study in constitutional possibility by examining Sanford Levinson's proposal for a constitutional convention. Part V concludes with the problem of false constitutional necessity. (shrink)

The principle of sustainability is generally taken as a good, but what does sustainability really mean? The notion of sustainability has been at the center of global governance debates for more than a decade and many countries across the world include sustainability in their constitutions. This paper argues that in order to understand the concept of sustainability in a constitutional context, we need to turn to the notion of dignity. The paper explores the concepts of sustainability and dignity and their (...) meanings in the framework of climate justice and related questions and by discussing them in the context of Kantian and republican theory. In addition, the paper looks at intriguing court cases on the importance of nation states meeting their climate law duties. The paper concludes by exploring new uses of the sustainability concept. EU constitutional law will serve as a laboratory in testing these questions. (shrink)

The normative character of meaning creates deep problems for the attempt to give a reductive explanation of the constitution of meaning. I identify and critically examine an increasingly popular Carnap-style position, which I call Internalized Meaning Factualism (versions of which I argue are defended by, e.g., Robert Brandom, Paul Horwich and Huw Price), that promises to solve the problems. According to this position, the problem of meaning can be solved by prohibiting an external perspective on meaning constituting properties. The idea (...) is that if we stick to a perspective on meaning that is internal to meaning discourse, then we can preserve the normativity of meaning and yet locate meaning in the natural world. I develop a generic motivation for this position, but argue that, since this motivation is consistent with the Ramsey–Carnap–Lewis–Jackson reductionist strategy, internalized meaning factualism is unstable. The problems about the normativity of meaning can therefore not be sidestepped in this way. (shrink)

Constitutions serve (at least) two central functions. One is to settle certain controversies by offering a definitive solution, such as adoption of a presidential or parliamentary system, a one-house or two-house legislature, or guaranteeing a certain term of years to judicial appointees. Not surprisingly, there is rarely litigation about such solutions, even if one finds them troublesome; instead, one can suggest amending the constitution or even replacing it. A second function is precisely to engender litigation by addressing certain issues—very often (...) involving rights—that don't lend themselves to the kinds of definitive textual solutions similar to those involving structural features of a polity. If the first constitution can be described as a “constitution of settlement,” this second constitution is a “constitution of legal conversation” inasmuch as lawyers constantly dispute the meanings to be assigned such terms as “equal protection,” “human dignity,” and the like. But how does this apply to the preambles commonly, though not always, found in constitutions? Preambles often claim to evoke what binds together the society for whom the constitution is being drafted—religion, ethnicity, histories, languages, or commitments to norms, including universalistic ones. But to what extent are such claims of unity attempts by political elites to marginalize sectors of the society that do not in fact share the attributes in question? In any event, there is nothing “innocent” about constitutional preambles, and they are well worth taking seriously whether or not they are useful to lawyers engaged in litigation. (shrink)