Last August, I wrote the following in a review of Cass Sunstein’s How to Interpret the Constitution: “Sunstein repeatedly asserts that ‘there is nothing that interpretation just is.’ I happen to think that statement plainly wrong on its face, and in another place might feel obliged to explain why that is so.” I would like to explain my view now, in a discussion of a much older, wiser book—one that is not about the Constitution or legal interpretation at all.
E. D. Hirsch, Jr., now ninety-five years old and an emeritus professor of English at the University of Virginia, is best known for his 1987 book Cultural Literacy: What Every American Needs to Know. Published the same year as Allan Bloom’s The Closing of the American Mind, Hirsch’s book was swept up in the winds of culture war generated by Bloom’s carpet-bombing of elite higher education. But the milder-mannered Hirsch had, if anything, even greater ambition than Bloom: he wanted to reform American education from the earliest grades, and he went on to publish guides for curriculum reform through the Core Knowledge Foundation he created. As recently as 2020, already in his nineties, Hirsch published How to Educate a Citizen: The Power of Shared Knowledge to Unify a Nation.
But still more recently than that, I discovered in a used bookstore (how I love those places) a much earlier work by Hirsch of which I had never heard: Validity in Interpretation, published in 1966. I was so taken with it that I sought out a subsequent collection of Hirsch’s essays on the same subject: The Aims of Interpretation (1975). These two books on hermeneutics—the first of them in particular—are so rigorously argued, and so right, that I unreservedly recommend them to anyone working in the humanistic disciplines that study the texts of the past: literature, philosophy, political theory, intellectual history. I have never seen Hirsch’s work on hermeneutics cited in any legal scholarship, but I especially recommend it to those engaged in the interpretive wars of constitutional law.
From the very first pages of Validity in Interpretation, Hirsch is intent on defending and rehabilitating the “sensible belief”—even then already unfashionable for much of the twentieth century—“that a text means what its author meant.” It must “represent somebody’s meaning—if not the author’s, then the critic’s.” It is possible, to be sure, for critics and scholars to advance some other meaning of a text, crafted by themselves, and call that an “interpretation.” As he was to say later in The Aims of Interpretation, our “choice of an interpretive norm is not required by the ‘nature of the text,’ but . . . belongs to the domain of ethics rather than the domain of ontology.” What Hirsch presents is a compelling ethical case for seeking out authorial meaning—a meaning intrinsic to the text, not extrinsic.
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But Hirsch’s ethical case is also an eminently practical one. As he argues, valid literary criticism depends on a valid interpretation of the text the critic is discussing. A critic might conceivably offer an account of Regan and Goneril as the misunderstood heroines of King Lear, but as entertaining as such an essay might be, it would be nonsense to advance such a reading as the “meaning” of Shakespeare’s play, since the playwright manifestly meant no such thing. (If the critic indicated that he was knowingly standing the play’s meaning on its head, that would be another thing.)
Hirsch knows that his admittedly old-fashioned view is opposed by some of the greatest names in modern literary analysis, such as T. S. Eliot, but he confidently exposes the flaws and contradictions in their arguments. In an appendix to Validity reprinting a 1965 journal article, he dismantles the hermeneutical argument of Hans-Georg Gadamer in Truth and Method, which “attack[ed] the premise that textual meaning is the same as the author’s meaning.” (It is interesting that Hirsch echoes the reaction of Gadamer’s old friend Leo Strauss, who wrote to him after reading Truth and Method, defending the “essentially ministerial element of interpretation proper which is concerned with understanding the thought of someone else as he meant it.”)
We are constantly told, however, that the author’s meaning is either irrelevant or inaccessible—or perhaps the former because the latter—the linguistic signs on the page taking on a life of their own independent of the author’s will, or the real meaning (ever variable) being ours and not the author’s, or the passage of time drawing blackout curtains over the author’s intended meaning. Therefore we must ask, as Justice William Brennan asked of the Constitution in a 1985 speech, “what do the words of the text mean in our time?” The “in our time” was the crucial part of Brennan’s question; he rejected “any static meaning it might have had in a world that is dead and gone,” but insisted that the Constitution’s meaning must be molded afresh to meet the needs of each generation.
Such reasoning, by Hirsch’s lights, confuses meaning with significance—a vital distinction in his hermeneutics that crops up again and again. To understand a text is to “re-cognize” it, to perceive the “verbal meaning . . . someone willed to convey by . . . linguistic signs.” Once we understand a text’s meaning, we can interpret it—i.e., “re-present” its meaning to others in our words. “Significance,” on the other hand, “is always ‘meaning-to,’ never ‘meaning-in.’” This is the province not of understanding but of judgment, considering a text’s value to us, or its use to us, or its application to our concerns. It is the function not of interpretation but of criticism.
Return for a moment to the book by Professor Sunstein that I reviewed months ago. He proposes that every interpreter consciously anchor his reading of the Constitution in his own “fixed points” about what justice requires, and from there, work to “read” the Constitution so as to “make our constitutional order better.” As Hirsch showed nearly six decades ago, this is not interpretation but criticism; not an effort at understanding and conveying meaning but the enterprise of judging the value of the Constitution by lights extrinsic to it.
But what about those difficulties to which we alluded above? Isn’t it the case that the minds of others—including the writers of the texts we interpret—are in many ways closed books to us? We and they are different, and we cannot read their minds. In some ultimate sense this objection may be true (since we cannot perform Mr. Spock’s Vulcan mind-meld), but Hirsch warns us of the error of “a psychologistic conception of meaning which mistakenly identifies meaning with mental processes rather than with an object of those processes.” That is to say, while others’ minds are in some sense closed books, the texts they wrote are windows into their minds, so far as their verbal expression of intention is concerned. They wrote them to tell us something, and we can know what it is.
There are no blackout curtains, only more or less obscurity to be overcome by the work of interpretation. Much of the burden of Hirsch’s two books is to describe the methods and account for the limitations of such work. The discussion is richly informed by linguistics and epistemology, governed by rigorous logic, and elegantly written.
In the later Aims of Interpretation, Hirsch identifies a conceptual error that will be familiar to legal scholars: the “fallacy of the inscrutable past,” which holds that past thought is so alien to our own that it can be understood, if at all, only by the most strenuous efforts of a very few narrow specialists, and even then only partially. This view feeds the determination to remold the texts of the past, “distorting them to our own perspective,” so that they “mean” something for us.
Another useful insight Hirsch offers is that ambiguity or even vagueness in a text is not the same thing as “indeterminacy.” This should be an instructive point for legal scholars: “Determinacy is a necessary attribute of any sharable meaning,” and it “does not mean definiteness or precision.” It may be that a given text—say, the Constitution—contains complexities that call for emphasis now on this point, now on that one. Insistence on the text’s precision would be a mistake (as, for instance, on whether the president is or is not an “officer” of the United States).
Indeed, Hirsch champions the view that textual interpretation is a probabilistic enterprise. Validity in interpretation is not the same as certainty in it. The whole of a text must be understood by reference to its parts, and the parts by reference to the whole—and this “hermeneutic circle” of traveling back and forth can only be escaped by positing interpretive hypotheses (which may begin with what Hirsch candidly calls “guesses”), testing them, and modifying them according to their persuasiveness. But the end always in view is the understanding of what the author meant to convey.
I anticipate the objection of many originalists that, because the Constitution’s status as the law of the land resulted not from its framing but its ratification, and because even the ratifiers represented a larger public, it is not any “authors’ meaning” that we seek in interpreting the Constitution, but its “original public meaning.” Hirsch’s hermeneutics is capacious enough to gather in the debate between “original intention” and “original meaning” without preferring one side to the other. He devotes several pages of Validity to the distinctive character of legal texts, recognizing that their “genre” is such that an author’s “willed implications must go far beyond what he explicitly knows” or anticipates, the question being “whether or not the implications belong to the type of meaning that he wills.”
Hirsch’s work, in short, is essential for anyone interested in understanding, preserving, and transmitting the thought of the past, whether it be legal, literary, or philosophical. At the deepest level, his hermeneutics is at war with the historicism and relativism whose proponents would deny us access to the past while exempting their own thought from the same judgments of inaccessibility. On this as on much else, Hirsch’s wit is as sharp as his perception. As he says in the introduction to Aims, “I was once told by a theorist who denied the possibility of correct interpretation that I had not interpreted his writings correctly.” Touché!