The Americanization of Hermeneutics:
Francis Lieber's Legal and Political Hermeneutics
In 1837 Francis Lieber published the first edition of Legal and Political Hermeneutics . Ten years a resident of the United States, this Prussian émigré sought to articulate the Principles of Interpretation and Construction in Law and Politics, as his subtitle made perfectly clear. The Hermeneutics made its appearance in a land ripe for hermeneutical reflections, and to quote his later editor, it "opened to the American public a new field of thought."
This new field of thought was not entirely new either to Lieber or to anyone else, since few things seldom are. But the later proud editor was on to something. Lieber was one of the first authors, if not the very first author, of an American book on "hermeneutics" explicitly so called. He also helped to broaden the reference of hermeneutics to things legal and political. Previous usage had been confined largely to theological circles "in Britain and America" and to philological circles "in Germany" (LPH, 54). Of course, much more than a term was at stake; so too were the very practices of interpretation and construction in a new republic where "the law reigns [and] every citizen honors it as his birthright." America was already notorious for its legal wrangling, political bombast, and theological bickering.
Despite being set in ink, the Constitution seemed more to provoke than to ameliorate these wordy energies. As Lieber himself remarked in the preface to the second edition (1839) of the Hermeneutics:
One of the first articles which I read after my landing at New York, now nearly twelve years ago, was in a paper opposed to the administration of Mr. Adams. The construction of the Constitution formed one of the points on which the writer founded his objections to the president and his party.
The subject, as a distinction of political men and measures, was new to me, as political construction in this aspect, is peculiarly American. (LPH, vii)
Lieber's Hermeneutics may be understood as providing a hermeneutical foundation for this "peculiarly American" practice. Symbolically, it dates the Americanization of legal and political hermeneutics.
In composing the Hermeneutics, Lieber hoped to set out the principles of constitutional interpretation and construction "like a recipe of a cookery book." But principally he sought to clarify the linguistic foundations and political commitments of the first principles of interpretation and construction as such. "There is no reason," he said, "why this term [hermeneutics] should not be used in all sciences in which interpretation and construction become necessary; in short in all branches in which we are bound to ascertain the senses of words and regulate actions according to their spirit and true import" [LPH, 52–53). Citizens constituted the principal audience for hermeneutics, so conceived, because it is "necessary for every citizen to know how to interpret and construct correctly and faithfully" (LPH, 65). Here then was a project by a German-American political theorist to "lay down the most essential principles" of hermeneutics, to broaden its scope, to politicize and popularize its terminology, and to mobilize its practical energies for the citizens of a new constitutional republic.
In what follows, I aim to recover and reconstruct the essential features of Lieber's Hermeneutics . Primary attention will be paid to the "rules and principles" that constitute hermeneutics as "a branch of science" (LPH, 5). (A list of them will figure in an appendix.) But consistent with this very science we may initially, though briefly, situate the work in contexts constituted by a series of discourses on the Constitution, on the idea of a science of politics, on republicanism, and on hermeneutics.
The focus on this single work and its discursive contexts is justified, I think, because it is such a prominent and sustained reflection on hermeneutics at such an early and important stage in the development of legal and political theorizing in America. Moreover, despite its importance it has been relatively unattended to, at least since the closing decades of the nineteenth century. Now that hermeneutics has (once again) become such a fashionable and contested topic in all sorts of quarters, bringing with it the insistence on the historical dimensions of human inquiry, remembering hermeneutics' own history seems eminently in order.
The Text in its Contexts
A number of contexts help us to situate Lieber's Hermeneutics of 1837. In the next section we will look at the hermeneutic and republican discourses that establish two of these contexts. In this section we may survey
two other contexts, one political, one methodological. These contexts are constituted by discourses (1) on the interpretation and construction of the Constitution and (2) on the nature of a science of politics in a new world. In the 1830s these two discursive contexts were not separate; they were intimately connected. Lieber's other works and activities of the same period also help set the scene for understanding Lieber's efforts.
The year 1837 marked the fiftieth anniversary of the composition of the Constitution. Yet the Constitution had hardly achieved the status of a symbol of national identity. When the Golden Jubilee began (an event infinitely less hagiographical than our recent Bicentennial), "a constitutional consensus was lacking as the first half century under national government drew to a close. A decade of volatile public disputes had made that clear, as had Constitutional commentaries, textbooks, glosses, and manuals that appeared after 1829." A number of increasingly nationalistic Supreme Court decisions (presided over by John Marshall, who had died in 1835) had been met not only with obstreperous state governments but with a barrage of pamphlets urging states' rights, strict construction, and even nullification. The Constitution's sometimes ambiguous references to—if not utter silence about—federalism, commerce, slavery, Western territories, banking, state jurisdiction, judicial review, due process, and the republican form of government occasioned these various disputes and commentaries. Indeed, the document itself, whether as instrument of government or as the palladium of our liberties, was often the subject of heated controversy, as the Nullification Crisis made eminently if dangerously clear.
America's leading voices and pens entered these various disputes, in speeches, articles, pamphlets, and multivolumed commentaries. So too did justices, legislators, presidents, and presidential aspirants. Among them could be counted several of Francis Lieber's closest acquaintances, including John C. Calhoun, Daniel Webster, Jared Sparks, Simon Greenleaf, Edward Livingston, Washington Irving, and James Kent, the chancellor of New York to whom the second (1839) edition of the Hermeneutics was dedicated. Henry Clay, Charles Sumner, and Supreme Court Justice Joseph Story—Lieber's most trusted friends and patrons—were also party to the vociferous debates. In this distinguished company perhaps Kent and Story stand out, at least in that their respective Commentaries helped to establish new heights in the standards governing constitutional interpretation.
The specter of James Madison (who had died in 1836) hovered over these figures, their works, and their disputes—and in ways that not all could fully appreciate. Not only had he been the fourth president and the acknowledged father of the Constitution, but his Notes on the Federal Convention, dutifully scrivened in Philadelphia in the summer of 1787,
were being prepared for publication. Though he had kept his notes from public perusal, he had already intimated some of his views about their complex relationship to constitutional interpretation, as well as to political understanding more broadly. In a letter of 1821 Madison had made the disclaimer that the Notes or the debates they recounted could "have no authoritative character…. [T]he legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be … the sense attached to it by the people in their respective State Conventions where it received all the authority it possesses." More constructively, however, the Notes should gratify "the laudable curiousity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Government."
The reference to the "Science of Government" was not incidental. The debates over the nature of such a science—or its sibling, the "Science of Politics"—went back to the debates over the Constitution itself, especially during the ratification process. Madison himself had been a particularly important contributor to these debates. As "Publius" he had mobilized a view of the science of politics whose Humean and Newtonian bona fides bestowed no mathematical or divine guarantees but certainly a "highly probable" degree of knowledge that a compound federal republic would best solve American's post-Confederation crisis. The Antifederalist Brutus emphatically denied this claim, though he, too, drew to his support the "science of government" and the "science of politics." Such a science required a less centralized governmental structure, not to mention some explicit guarantees for popular rights.
This dispute over the science of politics, like the dispute over the Constitution itself, did not subside as America's first half century came to an end. Indeed, by 1837 the scope of these debates had widened. The positivism of August Comte was already being noticed in the United States; so, too, was the utilitarian "science of government" propounded by James Mill and Jeremy Bentham (whom Lieber had met in 1827 en route to the United States). Within a few years Lieber's friend and correspondent, Alexis de Tocqueville, would reflect on these various debates and the country that gave birth to them, remarking that in America "a new political science was needed for a world itself quite new."
South Carolina College had been Lieber's academic home for a year and a half when he published the first edition of Legal and Political Hermeneutics . He was both prompted by and intended to contribute to the two debates—those, that is, over the interpretation and construction of the Constitution and those over the methods appropriate to the science of politics. The former debates had especially captured the attention of Lieber since, as noted at the outset, he saw something "peculiarly American" about them (LPH, vii).
The latter methodological debates had already engaged Lieber, at least in that he had written about some of the (nonhermeneutical) methods appropriate to a science of politics. In particular he had defended (in his 1835 inaugural address at South Carolina College) the necessity of discovering and explaining political phenomena by causal generalizations. He also had called for "a careful collection of detailed facts, and the endeavor to arrive at general results by a comprehensive view and judicious combination of them." This plea was lodged in his 1836 Memorial Relative to Proposals for a Work on the Statistics of the United States and read into the Senate records by none other than John C. Calhoun. Calhoun agreed with Lieber that the collecting of statistics—and formulating the generalizations they made possible—was not a merely academic matter. The state itself needed better information and reasoning—"state-istics"—to govern wisely and efficiently.
The conceptual tie between the state and statistics was related to yet other of Lieber's writings in and around 1837, especially the Manual of Political Ethics (1838). (The Hermeneutics was itself the expanded version of some remarks originally planned to make up only two chapters of this work.) Despite its normative title, Political Ethics was an extended (and arguably the very first) treatise on the state in America. This "book on the State" (as he put it in the Hermeneutics ) opens with a discussion of science in general, and before its two hefty volumes come to a close, he glorifies the "noble object" of political science and grants to it "the whole great question of constitutions" and much else besides (PE 1: 69, 393). In its inclusive grasp political science seeks to provide an ethical foundation for the state, a theoretical analysis of the relationships that constitute it as a "jural" society, and an empirical account of the legal and extralegal institutions through which it acts. In this context Lieber acknowledges that no set of causal generalizations and certainly no "pedantic accumulation of facts" (PE 1: 2) could exhaust the methods of a political science theoretically useful for intellectuals and teachers, much less a political science practically useful for citizens and statesmen. A genuine science of politics must also articulate the methods by which one could interpret political practices and legal texts such as the Constitution, as well as adapt or construe them to meet the needs and overcome the crises facing a new republic. In a word, political science must articulate a legal and political hermeneutics.
Hermeneutics, Language, and Politics
Lieber construed "hermeneutics" rather broadly. To him it was "that branch of science which establishes the principles and rules of interpretation and construction" (LPH, 52). Characteristically, Lieber provided an etymological warrant for his construal. "Hermeneutics" was "from
the Greek … to explain, to interpret," as contrasted with "exegesis," likewise "from the Greek," for "explanation." Thus, hermeneutics was to exegesis as theory was to practice. His own broad construal, again, covered "all branches [of science] in which we are bound carefully to ascertain the sense of words and regulate actions according to their spirit and true import" (LPH, 53).
In using "hermeneutics" in this rather broad way, Lieber was actually drawing on the lessons he had learned in his native Germany. In particular he drew on the philological and historical work of Barthold Niebuhr and Alexander and Wilhelm von Humboldt, all of whom were known, more or less intimately, by Lieber. He wrote reminiscences of Niebuhr and Alexander von Humboldt, and he sent a number of philological and linguistic materials to Wilhelm von Humboldt. He even moved to have the Rocky Mountains renamed the "Humboldt Andes" in honor of the latter. Lieber also drew on the theological reflections and nationalist agitations of his teacher Friedrich D. E. Schleiermacher. It was Schleiermacher in particular who had transformed and modernized hermeneutics by pressing it beyond debates over philological methods and the interpretation of the Bible and by generalizing it to the "art of understanding" as such.
But in emphasizing the establishment of rules and principles along scientific lines, Lieber was perhaps most indebted to the pre-Schleiermacherian hermeneutics of Johann August Ernesti. Ernesti's fixation on words, contexts of use, and authorial intent left indelible marks on Lieber's imagination. Ernesti's Institutio Interpretationis is cited or discussed at several junctures in the Hermeneutics . Moses Stuart, professor of divinity at Yale, had translated the works of Ernesti—as well as those of Schleiermacher—into English for an American press in the 1820s and 1830s. Stuart's discussions and correspondence with Lieber—not to mention his many articles on religious matters for Lieber's first edition of the Encyclopedia Americana —doubtless were in mind when Lieber declared that in America hermeneutics had previously been confined to theologians.
In Lieber's synthetic and posttheological view hermeneutics provided rules and principles for understanding all things of significance, particularly signs and their use. Although there could be divine signs, a legal and political hermeneutics was obviously directed to a certain class of human signs. This class of signs still carved out an enormous domain, including "deeds … gestures, telegraphs, monuments, sculptures of all kinds, pictorial and hieroglyphic signs, the stamp on coins, seals, beacons, buoys, insignia, ejaculations, articulate sounds, or their representations, that is, phonetic characters on stones, wood, leaves, etc., entire periods, or single words" (LPH, 1, 5). The last item, especially in the
form of "plain words and the human use of them," composed the single most important subclass of signs, especially "in law and politics" (LPH, 5, 64). Words could be uttered involuntarily, as in waking from a dream. But paradigmatically they were uttered or written voluntarily. As such they figured in speech as well as in texts such as the Bible or the Constitution—the bible of republicans.
Seizing as he did on words, Lieber underscored the importance of language to human life. He also intimated that the rules and methods of hermeneutic science had as their foundation the linguisticality of human experience. Lieber never developed his intimations into anything like a general theory. But the theoretical contours of his thinking are identifiable in a variety of places, not only in the Hermeneutics but also in The Vocal Sounds of Laura Bridgman, "What Is Our Constitution?" "The First Constituents of Civilization," and "On the Study of Foreign Languages" (also published in 1837).
In brief, Lieber believed that language instantiates a system of intentional signs that function for communication, action, and the constitution of certain social practices. Of the first of these functions Lieber says that language is essential for "the most wonderful and most important [process] on this earth," namely, "the conveying of ideas from one distinct individual to another; for the communion of mind with mind" (MW 1: 442). Here language empowers the "primeval principle in man … to represent outwardly what moves him within" (LPH, 2). But language is also essential for action. Sometimes actions are carried out in and through language in what these days we call speech acts . More generally, however, language "regulates actions" in that spoken words or written texts prompt or prohibit certain behaviors in legal or political settings (LPH, 52).
Because language makes communication and certain actions possible, it also has the consequence of making certain social practices possible. This is so at the highest level of practice, namely society itself. For what is language if not "the greatest link and tie of humanity" (PE 2: 262) and the very first "constituent of civilization" (MW 1: 209)? But particular languages also help to constitute social practices on a national scale. In this way language helps to provide the identity of a nation and its people. The American people, for example, were native English speakers who also had a republican "mania as to the idioms of classical antiquity" (MW 1: 500). But the American people were also changing the English language and had for some time been using its resources to help constitute a new nation. Lieber helped to answer the question "What Is Our Constitution?" by looking back to a colonial precursor from 1754. "The people are everywhere referred to as 'homologous,' and these papers homologated them" (MW 2: 101n). In short, a word referring to the
concept of a unified people played a role in a written constitution which in turn helped to create or constitute a unified people.
Even during periods of change, language—or the lack or loss of language—is no less evident in making human life what it is. For language and life go together and change together. "In the first French revolution," for example, "the words virtue, patriotism, and consistency had received entirely new meanings," meanings that in turn influenced the development of postrevolutionary acts and the constitution of its practices (PE 2: 263n). More generally, a "living language" is one that can "expand and adapt itself to new relations, things, and wider or minuter thoughts" (MW 2: 142). The law—and especially constitutional law—must be precisely like language in this sense, Lieber thought, on pain of national extinction. This is so because there are darker and more disordered times when law, language, and life lose their meaning. Amid the constitutional wranglings and rhetoric of 1837—portents of greater troubles ahead—Lieber cites Thucydides's famous passage where "words lose their meaning" and comments: "Party spirit many run so high that the greatest link and tie of humanity, language, loses its very essence, and people cease to understand one another, when even the best-intended words … are unintentionally yet passionately or wilfully wronged, misconstrued, wrung from their very sense" (PE 2: 262).
These observations on the linguisticality of human experience undergird the scientific rules of hermeneutics, to which we turn presently. They also reveal the extension and continuation in America of a hermeneutic discourse previously developed mainly in Germany. But the above-mentioned Thucydidean sensibilities also suggest that Lieber's construal of hermeneutics reflects some demonstrative political judgments as well, and these of a generally republican sort. Many of these judgments emerge as warnings to his fellow republicans and nationalists against those who would manipulate language, interpretation, or construction for their own interests, for the purposes of espionage, or even for tyranny (LPH, xii, 55, 14). There were those engaged in "sinister interpretation," others in "malconstruction," yet others in the "mischievous process of throwing a novel term around an old and well worn offence, in the expectation that a legalizing effect will result from the adoption of a new word having a technical sound" (LPH, 55, 69; 1862, 5). When thinking about this in 1837, Lieber singled out the example of "Lynch law" (PE 1: 204), as if using "law" at all could glaze over the felony of mob hangings. Later, on the eve of the Civil War, "secession" deserved attention, for "sucession is a word to drug the consciences of ignorant men who are [otherwise] averse to treason" (MW 2: 95). Then, of course, there were those who, in the name of "strict construction" or "literal interpretation," would actually "wrench [words] from their
sense … under the guise of strict adherence [to them]" (LPH, 56, 59). In this way, "enormous crimes and egregious follies have been committed under the pretended sanction of literal interpretation" (LPH, 56).
Lieber accepted the consequences of this warning against literal interpretation, doing so in the name of civil liberty and self-government, republicanism and nationalism. Not only will there always be interpretation, but "the freer the country the more necessary becomes interpretation" (LPH, 46). A free country is one ruled by its citizens in a variety of civic capacities in accordance with the law. Legislators, judges, and administrators need "proper, safe, and sound rules" for interpretation and construction (LPH, 41). So, too, do lawyers, who in any case cannot be trusted with the fate of the republic for the most part of them form an "invincible legion of harpies" (LPH, 38). But principally citizens themselves need safe and sound rules. In a crucial passage of the Hermeneutics Lieber indicates the most important domain of hermeneutic objects "in law and politics."
The chief subjects we have to interpret or construe, as citizens, are spoken words or entire speeches, letters, orders and directions, deeds, contracts, wills, laws, compacts and constitutions or charters, declaring and defining fundamental rights or privileges. Whether we are lawyers or not, we may be called upon to vote upon subjects requiring the interpretation of some of these; and whether we shall ever be members of legislative bodies or not, every citizen of a free country is not only permitted to form his opinion upon all prominent features of his government, fundamental laws, public men, and important measures, but it his duty to do so. (LPH, 64)
Then, too, there was the demonstrably and unavoidably interpretive responsibilities of "the most sacred character a citizen can assume, namely, as a juror" (LPH, 65). To be a juror, to voice an opinion, to judge leaders, to declare rights, to obey the law—in short, to be a citizen—all this requires interpretation and construction. These activities in turn require the discipline of rules and principles "established by reason" (LPH, 9). Lieber's Hermeneutics was dedicated to this civic and scientific enterprise.
Hermeneutics has as its principal task the formulation of a set of elementary or general principles for interpretation and construction. To this end Lieber constructs nine "elementary principles of interpretation" and sixteen "general principles of construction." Conceived at a fairly high level of abstraction, these principles function as regulative maxims, even though they are arrayed "like a recipe in a cookery book." As regulative maxims, these principles regulate the understanding and so
make interpretation and construction possible. In accordance with this conception of their nature and function Lieber endeavors only "to lay down the most essential principles, sufficient at least to direct attention to the main points" (LPH, 65). He acknowledges the place of lower-level, applied, and exegetical rules of interpretation and construction, and in the course of the Hermeneutics he intimates what some of them look like. But generally Lieber thinks that only regulative maxims lie within the scope of a "science" properly so-called.
Derivative principles (at a similarly high level of abstraction) are subsequently formulated for particular texts or tasks, as in the crucial case of constitutional hermeneutics. In this way Lieber's most general contribution to debates over the Constitution was to show that the rules and principles that govern its interpretation and construction are entailed or implied by even more elementary or general ones. Lieber, in brief, provides a place for constitutional hermeneutics within the broader science of interpretation and construction, which in turn is necessary "on account of the character of human language" (LPH, 157).
The elementary principles of interpretation help to systematize and correct the interpretive practices of everyday political life. These practices are inevitable because the words in utterances or texts are often ambiguous, obscure, technical, or susceptible to contextual differences. This ambiguity does not mean that the meaning—nay, the "one true meaning"—of words cannot be discovered or represented. Indeed, Lieber's very first principle states the rather lofty conviction—reminiscent of Ernesti—that words "can have but one true meaning." But it most assuredly suggests that words cannot be taken literally or at face value. It also suggests that definitions are only of provisional assistance because they, too, are composed of words susceptible to the same infirmities. "However minutely we may define, somewhere we needs must trust at last to common sense and good faith" (LPH, 19–20).
The trust we have to place in common sense and good faith is memorialized by Lieber as the second elementary principle of interpretation. One wants to know, of course, just what sort of sense common sense is, and just what is common about it. But this principle seems to have behind it the evocation of the classical humanist appeal to the sensus communis . It must also be seen as a contribution to the fight against "extravagant" or "predestined" readings of texts, whether legal, political, or biblical (LPH, 59–60). Moreover, nothing could better fit the image of an Americanized hermeneutics than the appeal to common sense, with its bracketing of speculation and its pragmatic appeal to what seems to work. Lieber renders into a principle of interpretation what his friend de Tocqueville noticed about the American character. Similarly, Chancellor Kent praised the Hermeneutics with the somewhat backhanded but
illuminating observation that until perusing the principles of Lieber's "learned, accurate, and interesting Essay," he had thought that good common sense had sufficed.
The third principle goes on to recognize that "words are to be taken as the utterer probably meant them to be taken." The "probably" is not a hedge on the principle itself; it is a recognition of the practical difficulties that afflict the attempt to discover and represent "what those persons who used the sign intend to convey to the mind of the beholder or hearer" (LPH, 7). Difficulties notwithstanding, Lieber's third principle goes to the heart of interpretation. Meaning can be understood only by the recovery of intentions . In short, Lieber argues for a strong intentionalist program in hermeneutics. In this approach he follows the principal hermeneuticians of the nineteenth century, especially his teachers Schleiermacher and von Humboldt (PE 1: 126). The "one true meaning" of a word, text, or act is to be interpreted not in terms of unconscious motives or invariant linguistic structures but in terms of the intentions of the writer, speaker, or actor. Ordinary political communication, whether forthright or not, must be interpreted in such an intentionalist way. Even if a person is bent on deceiving, "meaning is not twofold: his intention is simply not to express his opinion" (LPH, 75).
Of course, there is no guarantee that interpreters will always recover the real intentions at work. But such success as they can have depends on their exercising good faith and common sense (principle two) and keeping "tropes as tropes" (principle three). This exercise of good faith foregoes the "artful interpretation" of those who would take forensic advantage of the literary openness and creativity of language (LPH, 61). Furthermore, understanding the intentions that lie behind a word, text, or act relies on the determination of "that which is probable, fair and customary" (as principle six puts it). This determination—invariably practical in character and under constant threat of "subterfuge, quibbles and political shuffling" (LPH, 81)—in turn requires considerable contextual sensitivity and exploration. For example, the grammatical, classical, or extraordinary meaning of a word generally should be eschewed for the customary and ordinary (says principle three), except in those contexts where there is evidence that such words govern the discourse and that the writer or speaker intended the words to be taken in that sense. "Military language" usually provides such a context; so too do a number of business practices and "certain arts, sciences, sects, or provinces" (LPH, 89).
Lieber recognizes, as he must, that we often discover conflicting evidence where two or more meanings of a word or theory are possible. The one true meaning is then fixed by that which agrees with "the general and declared object of the text" (LPH, 100). This is one of the
paradigmatic cases (of principle four) in which the general and superior must never be defeated by the particular and inferior in the text. We may also be forced to go outside the text, but always to that which is "near, before proceeding to that which is less so." If, as Lieber glosses this eighth principle, the examination of the whole text "leads us to no more satisfactory result" in interpreting the meaning of a word or part of the text, then "we examine other writings, etc., of the same author or authority; if that does not suffice, we resort to contemporary writers, or declarations or laws similar to that which forms our text" (LPH, 107)—and so on.
For all the guidance in our civic or scientific tasks that these elementary principles provide us, interpretation has its limits. It has its limits especially in those texts, acts, or institutions that prove to have "contradictory parts" within them (LPH, 65) or that continue to govern our lives in new or changed circumstances. Not only does the Constitution fit this (latter) description, so, too, do judicial review, presidential prerogative, local participation, the scope of free speech, the nature of public education, and much else besides. Here "superior conditions" exist (as hinted at in the ninth and last elementary principle of interpretation) that require that we press beyond interpretation itself. Here, that is, we must construe and "go on" (as Lieber says, or as Wittgenstein later would put it) beyond the word, text, or act. Thus, construction is required, which Lieber defines as "the drawing of conclusions respecting subjects, that lie beyond the direct expression of the text, from elements known from and given in the text—conclusions which are in the spirit, though not within the letter of the text" (LPH, 56).
In general, Lieber argues for what he calls "close construction" but not "strict construction" (LPH, 54–59). Close construction respects intent and "the directest possible application of the text … to new or unprovided cases" (LPH, 65). But strict construction refuses to go beyond the text at all. It could well be understood as a sort of hermeneutic fundamentalism: "Just read the Word, and the truth will come to you." But, strictly speaking, strict construction is impossible. It is impossible for a people in a republic like ours, where "times and the relations of things change" (LPH, 126) and where never-anticipated problems or crises emerge. It is also impossible for a people who share a language that undergoes constant change. As language undergoes change, our understanding and interpretation of our political practices undergo change. Indeed, as intimated above, our political practices themselves may change because our language changes. Construction might be understood, then, as a disciplined participation in the inevitable processes of political innovation and linguistic change.
Construction has its "general principles," the first of which invokes any or all of the elementary principles of interpretation when applicable.
The ninth, fifteenth, and sixteenth principles similarly reproduce their interpretive counterparts, which deal with the entire text, its spirit, and the faith we owe to it. This repetition underscores Lieber's general observation that "in many cases, interpretation and construction must closely approach to one another; but still the distinction is clear" (LPH, 53). Thus, Lieber goes on to press the distinction by stipulating the remaining general principles, making them even more directly applicable to matters of constitutional law and national politics.
Where intentionality governs interpretation, analogy governs construction. Analogy or parallel reasoning, as the second and most important principle states, is the "main guide" or "primary rule" of construction (LPH, 115).
If, for instance, a political constitution or charter has been adopted or granted, to regulate our political actions, and a case occurs which has not been directly provided for, but which is of an undoubted political character, we have faithfully to search for its true spirit, and act accordingly in the case under consideration. Analogy, or rather parallel reasoning in this signification of construction, is the essential means of effecting it. (LPH, 46).
The new or unprovided case, that is, must parallel, "resemble," or be analogous to another case in "the same speech, will, law, or constitution" (LPH, 47, 114). Failing that, we may have to turn to similar acts by the same speaker or authority, next to the commentaries of the speaker or authority, next to the commentaries of those related to the speaker or authority in the same period, finally perhaps to "the whole literature of the language" if need be (LPH, 115); in short, "we have carefully to begin with that which is near, and proceed to that which is less so, accordingly, only, as we find ourselves unable to construe without seeking means in a wider circle" (LPH, 114). Thus, when constructing by analogy—indeed, when interpreting at all—we move within an expanding hermeneutic circle .
Legal constructors are also guided by the "aim" or the "causes" of a law, a point Lieber specifies in the third and fourth principles. Discovering them is often a matter of interpretation, but mobilizing them in new or unprovided cases is by definition a matter of construction. Here, too, the constructor proceeds analogously and with what we would call these days a subjunctive or counterfactual imagination. He or she must imagine—through a process of "sympathy" (PE 1: 50)—what the law (or text) would have prescribed had it addressed the case at issue. There are "dangers" here, imagination being what it is (LPH, 53). Thus constructors must proceed as "closely" to the text as possible, a point intimated above. Although this process might be dictated in part by the age of the text (principle eleven) or by judgments about what can be humanly demanded (principle five), close construction is especially crucial when "the
text partakes of the nature of a compact or solemn agreement" (principle seven). Constitutions are often of this sort—as is the U.S. Constitution—the close construction of which is essential to individual liberty. The twelfth principle makes this point abundantly clear.
Beyond these general principles, Lieber specifies still others that have to do with the effects or consequences of constructing a text or law in one way rather than another. Indeed, he makes this application explicit in its own right in the tenth principle. But the sixth and fourteenth principles give this ethical and political concreteness. The former is posed with Kantian attention to "the commonest principle of fairness" (LPH, 130): "Privileges, or favors, are to be construed so as to be least injurious to the non-privileged or unfavored." The latter invokes "mercy" in cases of doubt, especially for those who are "weak" and deserve the benefit of the doubt.
The spirit and often the letter of these general principles of construction inform a number of special or derivative hermeneutics. Constitutional hermeneutics crowns a list that includes letters, journals, private notes, speeches, contracts, deeds, wills, treaties, and laws. The rules and principles in this derivative hermeneutic science are of particular importance because "a constitution is to apply in every sphere of political action and hold good for many generations" (LPH, 170). With asides to the commerce clause of the U.S. Constitution, as well to a number of other constitutions, written and unwritten, Lieber reminds his American readers "once more, that wherever human language is used, interpretation and construction become indispensable, even with regard to constitutions" (LPH, 169).
As can be seen by his abbreviated list (reproduced in the Appendix), Lieber remains faithful to his elementary principles of interpretation and his general principles of construction when turning to their constitutional derivative. Indeed, the discussion would be outright redundant if it were not for the examples he provides and for the introduction of "public welfare" as a regulative maxim of the highest order on a par with intentionality and analogy.
Redundancy, especially in matters of close construction, was no sin for Lieber. Given the context of 1837 (and after) and his recognition of the "peculiarly American" (LPH, vii) importance of constitutional construction, the generally applicable arguments for close construction have particular poignancy in questions about the Constitution. This poignancy is due in part to "the principle of nationality" (LPH, 168) that animates the Constitution (and constitutions like it). As he puts it in "What Is Our Constitution?": "It is a national law, having proceeded from the fullness of the national necessity, national consciousness, and national will, is expressive of a national destiny" (MW 2: 117). Besides providing identity
and continuity for the people, as well as a frame of government and a set of guarantees for individual liberty, it is the veritable "organism of national life" (MW 2: 117). Close construction is therefore essential, especially regarding the founders' "granting power to the national government" (LPH, 175). Although the political judgments expressed here are not undeservedly called conservative, Lieber's rejection of "strict construction" and his loathing for "the most prominent extremists on the State-rights side" (LPH, 59; MW 2: 119) give the appellation its historical purchase.
Even then Lieber recognizes the limits of close construction. There are cases in which, as he puts it in his seventh and eleventh principles of constitutional hermeneutics, there must be more "comprehensive," even "transcendent," construction that goes beyond the text and intent. Lieber puts this in a number of different ways, in the process speaking for individual liberty and an independent judiciary.
In his third principle Lieber offers "the public welfare" as the most general expression of "the supremest law" to which the rules of constitutional hermeneutics must be prepared to bow. Americans, the British, "even the Chinese" recognize salus populi supreme lex . "There can be no construction, therefore, contrary to this law of laws" (LPH, 171). Wisely, Lieber points out that self-interested and even tyrannical men have abused the appeal to the public welfare in constructing the Constitution this way or that. Vigilance is thereby in order. Yet a living constitution is impossible without such a law of laws. "Those states are doomed to decline and fall to ruin which endeavor to rule by ancient laws and forms only, and obstinately resist the progress and spirit of the age" (LPH, 174). The "welfare of the people" must animate our constitutional construals.
It is impossible not to hear in this discussion the conceptual materials out of which the discourse of the "welfare state" emerged, especially given Lieber's other work on the state. It is by now equally impossible, I hope, not to recognize the hermeneutic sensibilities that helped to bring these conceptual materials to bear in the first place.
Hermeneutics Received and Forgotten
Founded on the linguistic dimensions of human experience, dedicated to and partly constitutive of the citizen politics of a free nation under law, Lieber's Hermeneutics contributed to the discourses on the Constitution, political science, and republicanism. It also Americanized hermeneutics in the process of covering legal and political texts and processes. Hermeneutics was governed by a series of regulative maxims to guide and discipline the practical science of interpretation and construction in law and politics. It conceived of its audience as composed principally of
citizens, thereby serving the republican, national, and constitutional politics of the new American state.
Interestingly enough, the very name of the work scared some off when it first appeared. "What, in God's name, made you choose 'Hermeneutics'?" asked Chancellor Kent's son William. "Had you called your … book 'principles of Interpretation' … many an honest fellow, now frightened away, would have read and enjoyed the writings." But in the main the work was well received and influential, at least in its second (1839) edition. Kent, Story, and Greenleaf were all complimentary in the extreme. The Hermeneutics was even cited in a brief before the Supreme Court by G. S. Hillard. And the work lived on through the middle years of the nineteenth century in the disquisitions of young lawyers, "repeatedly copied" by students, "frequently quoted by judges" (LPH, 289).
The editor of 1880 reintroduced Lieber's principles, especially in their recipelike array (as presented below in the appendix), as "probably more familiar to the present generation of American lawyers than any other part of his work; perhaps more so than any part of any other work on the same subject." Yet the familiarity of principles did not entail recognition of their authorship. Thanks to the edition of 1880, "many of those who have long been familiar with the rules will learn now for the first time to whom they were indebted for their introduction to American law" (LPH, 289). To the extent that this comment is true, we may perhaps see how Lieber helped to Americanize hermeneutics in the nineteenth century all the more fully and effectively by his having been virtually forgotten. Whatever revolutions in hermeneutics and American thought that have occurred since then, it is tempting to conclude that, at least as far as our forgetfulness is concerned, not much has changed in a century.
Appendix: Lieber's Principles of Interpretation and Construction
[Interpretation is] the discovery and representation of the true meaning of any signs, used to convey ideas. The "true meaning" of any signs is that meaning which those who used them were desirous of expressing.
The Elementary Principles
[Construction is] the drawing of conclusions respecting subjects, that lie beyond the direct expression of the text, from elements known from and given in the text—conclusions which are in the spirit, though not within the letter of the text.
The General Principles
Principles of Constitutional Hermeneutics