“‘Luminous and Obscure’: Into the Depths of Constitutional Meaning” by Perry Dane

James West investigating the Constitution. From NASA (PD-US).

Let’s explore an out of the ordinary way of thinking about the relation between religion and accounts of constitutional interpretation. In a recent article, I argued against the theory of “original public meaning” in constitutional and other legal interpretation, pointing to a “distinct, deadly, bit of intractable incoherence” that I proposed “ends up unraveling the entire fabric” of that approach. I will not rehearse that argument here. But I do want to expand on two observations that were incidental to the original piece but might open to another avenue of contemplation.

The first is the claim that legitimate interpretations of constitutional texts can overflow the most unmediated layer of meaning of those texts. I was inspired to make that point partly by the example of religious and literary texts whose interpretation has, in many traditions, often admitted the possibility of allegorical or symbolic readings at some distance from the naked text. Drawing on a medieval distinction, I refer to that unmediated layer of meaning — the layer of meaning we just “know” without argument or deliberation — as intellectus, in contrast to the meaning produced by further analysis, which I refer to as ratio. My point, in brief, was that intellectus does not entirely constrain the potential reach of ratio. That is to say, the conclusions we reach about the meaning of a text by way of interpretation can break the bounds of the text’s own pre-interpretive kernel of meaning. 

The second observation appears in a single footnote in which I speculate a bit about what it might mean for a text’s pre-interpretive kernel of meaning to be “unmediated.” I suggest that the distinction between intellectus and ratio 

bears a family resemblance, if a mild one, to Martin Buber’s distinction between the I-Thou and I-It modes of encountering persons and objects. Buber understood that all of us must adopt the I-It mode, with its habits of dissection, to function and fully understand the world in which we live. But he still powerfully insisted on the indispensability of the I-Thou modality to our complete lives as human beings.

I then discuss Susan Sontag’s famous claim in the context of literary works that (in my words) all interpretation

disastrously shifts our attention from the work itself to a theoretical construct outside the work. […] With respect to all the usual theories of legal interpretation, this insight is acutely on point. Each of these theories turns our attention from the text as we face it head on to something else, whether the author’s intentions, the original readers’ reactions, other texts, intertextual and intratextual inferences, doctrinal structures, the larger legal landscape, moral truths, political theory, tradition, history, or whatever. […] In each case, we avoid simply confronting the text itself. It might seem that textualism or literalism would solve the problem, but it doesn’t, in that it too shifts our attention — from a holistic understanding to the dictionary.

Now, it might seem that these two ideas — that interpretation can overflow the unmediated meaning of a text and that all interpretation diverts us from an honest encounter with the unmediated text — are at odds with each other. I assumed that in writing the article. But this circle can be squared. For it is precisely the claim of forms of reading in many religious traditions that the overflow of meaning is contained in the deepest recesses of the words themselves.

But how does this talk of Buber and Sontag help constitutional lawyers? I emphasize in that footnote that “our modes of reading … are in all cases both vital to our vocation as legal readers and inauthentic. They are tainted from the start — if inevitably and justifiably so — by our practical and professional commitment to analysis.” But I also propose that, following Buber, we can try to “confront a legal text holistically, diving into its existential heart, if only as a first step.” I end by suggesting that the balancing act between holistic encounter and rigorous analysis might, ironically enough, suggest an approach resembling Justice William Brennan’s much-quoted effort in his Madison Lecture on the “contemporary ratification” of the Constitution to make sense of the “majestic generalities and ennobling pronouncements” found in the Due Process, Equal Protection, and other great clauses of the Constitution.

I should be honest. That last reference to Justice Brennan, associating him with Martin Buber and Susan Sontag, was almost a throwaway line, though I also wanted to suggest that the Justice’s insistence on appreciating the “majestic” and “ennobling” tenor of the text was in a deep sense more faithful to the words than the other theories about which we sophisticated scholars love to bicker. (The reference was also a nod to the Justice for whom I clerked not long before he delivered that speech). Since writing the article, however, I took another look at the published speech in which the Justice articulated these thoughts. And I found myself obsessing about a less well-known phrase in the same sentence. In Brennan’s words, the Constitution’s “majestic generalities and ennobling pronouncements are both luminous and obscure.” 

Luminous and obscure. What might that mean? I asked a couple of the former clerks who might have been involved with drafting the speech, and one told me that the phrase had appeared first in one or more of the Justice’s previous unpublished talks, though he could not recall the specifics. Someday, I might dig into the Justice’s papers at the Library of Congress. For now, though, I feel content to riff.

It might seem that textualism or literalism would solve the problem, but it doesn’t, in that it too shifts our attention — from a holistic understanding to the dictionary.

Luminous and obscure. If “luminous” just means lucid or clear, then the phrase would just be a cheap contradiction. But the binary of “luminous” and “obscure” appears in many other places in various disciplines and traditions, suggesting that more is afoot. I would be surprised (and delighted) if Justice Brennan or any of the clerks who assisted him had these sources in mind. But, consciously or not, they were tapping into an important idea worth further exploration. 

Astronomers observe that many of the most powerful and inherently “luminous” objects in space, including quasars and other galactic nuclei, are not coincidentally “obscured” by enormous dust clouds. But the clouds reradiate and shift the wavelength of the energy emitted by these objects, rendering their luminosity dramatically apparent to instruments that can detect non-visible wavelengths of light. 

The interdependence of the luminous and the obscure is also especially evident in religious traditions. A great Taoist text attributed to the school of the sage Zhuangzi (late fourth century BCE), which incidentally, Martin Buber translated in 1910, declares that the “luminous is born from the obscure.” Expressing a cognate intuition, Saint Pope John Paul II added to the joyful, sorrowful, and glorious “mysteries” contemplated in the traditional recitation of the Catholic rosary a set of “luminous mysteries.” Jewish Kabbalistic thought as articulated in the tradition of Chabad posits an interplay of divine concealment and disclosure — a dialectic of the “covert luminosity” of absolute divine transcendence and the “overt revelation” that both communicates and obscures. Christian thought similarly refers to the “luminous obscurity” of the Godhead. 

The point of all these paradoxical formulations is that sometimes light can only shine through, and must simultaneously be shielded by, obscurity. Similarly, the great clauses of the Constitution, Justice Brennan would argue, I think, are majestic and ennobling precisely because their normative luminosity — their ability to shine through with powerful constitutional conclusions that speak across the centuries — would be impossible without their semantic obscurity.

Similarly, the great clauses of the Constitution… are majestic and ennobling precisely because their normative luminosity — their ability to shine through with powerful constitutional conclusions that speak across the centuries — would be impossible without their semantic obscurity.

I do not argue here that the Constitution is a mystical text, let alone a divine one. I certainly do not suggest that the Constitution or other legal texts should be read precisely the way religious texts are read; that would do a disservice to the underlying assumptions of both religion and (secular) law and ignore the differences between religious and (secular) legal modes of reasoning and reading. But Justice Brennan’s observation that constitutional texts can be “luminous and obscure” turns out to be deeply evocative if we keep in mind the embrace in religious thought (not to mention astronomy) of that very duality. It might even give us the confidence to see constitutional law as a place for the exercise of the legal imagination at its best.

But, the lawyer in me keeps asking, how does all this work out in practical debates over constitutional meaning? Part of the answer, I think, as suggested by my discussion of Buber and Sontag, is that however helpful we might find debates over different approaches to constitutional interpretation, we should never see any of those approaches — including (maybe especially including) the varieties of textualism and originalism — as complete substitutes for a more holistic encounter with the Constitution and simultaneously (if we are to avoid what I have elsewhere called “constitutional glare”) with the legal and normative topography of which the Constitution is one part. Because we are lawyers, and lawyers grounded in a certain set of practices and a certain history, that encounter cannot be merely subjective and individual. It is the work of many hands over many years. That is where doctrine comes in — the product of collective engagement encapsulated in precedents, sometimes necessarily disturbed by the overruling of precedent, both incremental and dramatic, but never completely at rest or fully satisfied. 

Our current methodological and ideological debates are best understood as gestures in that process of collective understanding. They can help shape the path of the law. But if religion teaches us anything, it is that the conversation is bigger than any of us. Whatever we say or do as participants in that conversation, we cannot and should not try to either eliminate the powerful obscurity of the constitutional text, nor should we ever claim to cabin its equally powerful luminosity.♦

---

---

Recommended Citation

Dane, Perry. “‘Luminous and Obscure’: Into the Depths of Constitutional Meaning.” Canopy Forum, August 11, 2023. https://canopyforum.org/2023/08/11/luminous-and-obscure-into-the-depths-of-constitutional-meaning/.