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What Kind of Document is the Constitution?

Is it important to know what type of document the Constitution is? Professor Gary Lawson illustrates how a single document could be read in very different ways, depending on different assumptions about what type of document it is. Scholars have offered many theories and comparisons about what type of document the Constitution is. Interpretations of the text of the Constitution can vary greatly because of these different starting points. Professor Lawson proposes that the Constitution must be some sort of legal document and then discusses how it resembles 18th-century fiduciary instruments. https://youtube.com/watch?v=6o2zThXhIXU


Suppose I hand you three documents. Each one of those documents contains exactly the same words. They could all be photocopies of a single document. Three identical documents. I then tell you, one of them is a poem, one of them is a shopping list, one of them is a secret code. Are you going to read, interpret, those three documents exactly the same way just because the words are identical? I would guess not, because knowing something about what the kinds of documents are tells you something, not everything, but something about how to go about reading them. If I tell you it's a poem, you're going to be on the alert for literary devices, metaphor, irony, those sorts of things. If I tell it's a shopping list, and you start looking for literary devices and metaphor, you're going to be in big trouble. You read the shopping list and it says, "Get four apples," and you think to yourself, "Well, apples, that's metaphor for sin." Then if I tell you it's a secret code, all of that goes out the window. You won't actually have any idea what to do with those words until you figure out how to crack the code. Moral of the story is knowing what kind of document something is, is extremely important for figuring out what you're supposed to do with it once you have it, how you will figure out its meaning. Now you're handed the United States Constitution. What is it? Probably not a shopping list. Probably not a secret code. Probably not a poem, although some academics have come pretty close to calling it that. How would we go about figuring out what it is? You look at it, you compare it to other kinds of documents, and you see if there's anything that it resembles. You may come away thinking it doesn't resemble anything, it's just its own unique thing, and you don't gain anything by comparing it to other kinds of documents. That's a possible position to take. But there are lot of other documents that were around in the 18th Century. The idea that it wouldn't draw on any of those other kinds of documents, seems unlikely. Think for a moment about what other kinds of things it might resemble. Once you go down that path we have 225 years of people coming up with all sorts of comparisons. Constitution is like a super statute. Constitution is like a treaty. Constitution is like a corporate charter. Constitution is like an instruction manual. Constitution is like a chain novel. Chain novel? That one's really big in the academy, has been for decades, trust me. Here's one from one of my colleagues - the Constitution is “a charter of aspirations” to which we owe our fidelity. And my all time favorite, . . . The Constitution is “a reflection of the tension between our understanding of our present state and our understanding of social ideals toward which progress is possible."* So it matters very much what kind of document you think you're dealing with for how you interpret it. As I survey the universe of 18th Century documents available to people, the one that leaps out as the most like, not exactly like, but the most like the Constitution, is a family of documents called fiduciary instruments. They are a subspecies of legal documents. In which people give other people some kind of power to manage their affairs. You hire somebody to go to France to sell your canons. It's a fiduciary instrument. You hire a lawyer, you give someone a power-of-attorney to represent your interests, you appoint somebody a guardian of your minor child. These are all fiduciary instruments, and what we mean by fiduciary is those who exercise the power to manage other people's affairs. They're actually supposed to be looking out for the interests of the people who've given them the power, and not looking out for their own interests in the course of carrying out those functions. Let's start with the assumption that the Constitution is a legal document, not a poem, not a shopping list, not a chain novel. It's full of legalese. So it's going to be some kind of legal document.

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