Reading Dred Scott, Plessy and Brown: Toward a Constitutional Hermeneutics

• Author: Simeon C.R. McIntosh
• Profession: Professor Emeritus of Law at Howard University, Washington, DC
• Pages: 241-305

Reading Dred Scott, Plessy

and Brown: Toward a

Constitutional Hermeneutics

Introduction

They mean by that the messenger of the gods who, according to the

opinion of these heathens, must proclaim to the humans the will of the

gods.

Johann Heinrich Zedler

Whenever we find ourselves in the presence of sensible forms, through

which another spirit, objectified in them speaks to ours, calling upon our

intelligence, our interpretive activity begins to move, trying to understand

what sense those forms have, what message they are sending us, what they

mean to us.

Emilio Betti

Hermeneutics – ‘[the] philosophical concern with the theory of

understanding and interpretation’1 – is a discipline with its proximate origins

in communication between the gods and the mortals in the interpretation of

divine commands. As Professor Kurt Mueller-Vollmer explains,

[t]he ETYMOLOGY OF THE TERM hermeneutics carries an obvious

relation to Hermes, the messenger god of the Greeks, and suggests a

multiplicity of meanings. In order to deliver the messages of the gods,

Hermes had to be conversant in their idiom as well as in that of the

mortals for whom the message was destined. He had to understand and

interpret for himself what the gods wanted to convey before he could

proceed to translate, articulate, and explicate their intention to mortals.…

Looking at Hermes’ task may give us a clear warning as to the complexities

underlying the term hermeneutics and the hermeneutic enterprise.2

Reading Text and Polity

242

Over time, hermeneutics became principally concerned with the

interpretation of sacred texts, and by the eighteenth century, hermeneutics

was the province of philosophy.3 The philosophers, who wanted to systematize

all human knowledge, reasoned that ‘[h]ermeneutics rested on certain

generally applicable rules and principles which were valid for all those fields

of knowledge that relied on interpretation.’4 Adopting this view, Professor

Hans-Georg Gadamer, the pre-eminent hermeneutic philosopher of the

twentieth century, views hermeneutics as a species of philosophy that ‘[t]

ranscends the confines of individual disciplines and deals instead with their

foundations.’5 Hermeneutics, therefore, is concerned with the theory and

the practice of interpretation; it is a type of philosophical activity or praxis

utilized in an effort to understand texts of every possible genre and all forms

of cultural and social practices.6

Although principally concerned with the theory of interpretation,

hermeneutics concerns itself with the theory of understanding as well.

Understanding is considered a psychological phenomenon, and similar to

any other phenomena, it is an object of knowledge, a form of knowing,

or an epistemological process. Unlike other areas of study where the body

of knowledge has pre-defined concepts, hermeneutic understanding is not

governed by knowledge in preconceived forms. To the contrary, in the domain

of hermeneutic understanding, knowledge is the objectification of the mind.7

We could not possibly view the objectification of the mind as a logical

entity that is resolvable ‘[w]ith no residue, into abstract concepts;’8 nor is it

resoluable as a natural entity that is to be explained completely by means of

causal links.9 Rather, we must view the objectification of the mind as ‘[a]

subjective import, and the reference to a totality that does not lie in the

background but is instead immanent and working according to its own law of

autonomy.’10 The point of all this is to stress that the epistemological process

of understanding would require, for its proper orientation, the elaboration

and the use of fundamental hermeneutic criteria – it requires concepts that

pertain to the mental activity studied, be they artistic, literary, judicial, or

sociological concepts.11

This chapter addresses the interpretation of American constitutional law

in light of the problems inherent in understanding the human sciences. The

idea that interpretation of the law has become such a central issue in legal

jurisprudence can be summed up in the following statement: ‘[T]he notion

that law is an interpretive practice, in which legal materials must be given

meaning by purposive agents, has caught on with a vengeance.’12 Moreover, a

Rutgers University law professor once stated:

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Reading Dred Scott, Plessy and Brown

[w]ithout a doubt, ours is the age of interpretation. From the natural

sciences to the social sciences, the human sciences to the arts, overwhelming

evidence exists that interpretation is a central organizing theme of the

late twentieth century. In law, the importance of the ‘interpretive turn’

can hardly be overestimated. In addition to a plethora of symposia,

books and articles by leading scholars in all fields of substantive law,

the growth of interest in law on the part of academics in the humanistic

disciplines confirms that questions of textual meaning are central, if not

the organizing, concern of many sophisticated legal theorists.13

Additionally, this chapter joins the ‘interpretation’ debate by focusing

on three critical cases in American jurisprudence: Dred Scott v. Sandford,14

Plessy v. Ferguson,15 and Brown v. Board of Education.16 Notwithstanding

personal interest, these cases were chosen because they dramatically illustrate

fundamental moral questions of constitutional founding and the definition

of fundamental human relationships and collective identity.

More importantly, these cases chronicle the struggle for citizenship in

America, which has primarily been a demand for inclusion in the polity.17 The

issues raised in these cases bring to the forefront profound questions about

who we are as a people; about our collective identity; and about the form of

our constitutional practice. Lastly, in relation to our commitment to the ideal

stated in the Preamble, these cases raise fundamental methodological and

jurisprudential issues of constitutional interpretation – issues which might

indeed be recast at a deeper level of collective identity and character of the

constitutional polity.

Accordingly, in this chapter, I will discuss the role of authorial intent

in interpreting the Constitution. I will also focus on the constitutional

adjudication of Dred Scott, Plessy, and Brown. Finally, I will address the role

of constitutional adjudication in the realm of ‘public reason,’ with particular

emphasis on the adjudication of Dred Scott, Plessy, and Brown. But, above all,

I must begin with the seminal issue of constitutional legitimacy or the moral

foundation of the State as a way of establishing the proper philosophical

background for the interpretation of the constitutional text and against

which the three cases of Dred Scott, Plessy and Brown may be adequately read.

Constitutional Legitimacy and the Moral Foundation

of the State

A constitution is a document of political founding or refounding.18

It is an architectonic plan for the founding and ordering of a political

society, commonly understood in modern terms as the ‘State’. It defines the