—Bryan Dennis G. Tiojanco, Project Associate Professor, University of Tokyo, Graduate Schools for Law and Politics. Twitter: @botiojanco
[Editor’s Note: This is one of our ICONnect columns. For more on our 2022 columnists, see here.]
Legal comparatists start understanding any new constitution in the same way we begin understanding anything: through a progression of mental models. We first understand something as an instance of something (as a book) and move on to interpreting it as kind of that something (as a novel), then as a category of that kind (as a historical novel), and so on.[1] We see a document beginning with “We, the sovereign Filipino people…” and instantly recognize it as a constitution. Reading on we see articles on citizenship and universal suffrage, and these prompt us to interpret it as a democratic constitution. Also finding in it a Bill of Rights and articles on the legislative, executive, and judicial departments, we refine our understanding of it as a liberal democratic constitution.[2]
A mental model is always at the back of our mind when we approach any text. We presume that the text fits the model, and this presumption guides our reading of the first passages of it we encounter. Without some such guide we would be looking blankly at phrase after phrase until we form a mental model of what these phrases amount to. As Hans-Georg Gadamer explains:
A person who is trying to understand a text is always projecting. He projects a meaning for the text as a whole as soon as some initial meaning emerges in the text. Again, the initial meaning emerges only because he is reading the text with particular expectations in regard to a certain meaning.[3]
The presumed mental model is thus our way into the text.[4] But since the mental model we project onto a text is presumed, it must also be provisional. Again, Gadamer (who refers to mental models as ‘fore-projections’ or ‘fore-conceptions’):
every revision of the fore-projection is capable of projecting before itself a new projection of meaning; rival projects can emerge side by side until it becomes clearer what the unity of meaning is; interpretation begins with fore-conceptions that are replaced by more suitable ones.[5]
The “first, constant, and last task” of interpretation is to keep refining the model we are projecting onto the text in terms of the text itself.[6] The test of a mental model is the text: does it fit? Do the various passages of the text confirm the mental model we are projecting onto it? We constantly need to countercheck the validity of our worked out mental models with the text itself.[7] Thus we must resist the urge to draw propositions about the text from our provisional mental models.[8] Instead we must be open to “the experience of being pulled up short by the text”, that is, the experience of it frustrating our expectations.[9] We must read a constitution in its entirety, and not just cherry-pick clauses which confirm our presumed, projected mental model; we do this “so that the text can present itself in all its otherness and thus assert its own truth against one’s own foremeanings.”[10] This is in line with a basic hermeneutic principle (hermeneutics is the study of understanding, including of legal texts) of textual interpretation: we must understand a text in its own terms.[11]
Comparatists sometimes violate this basic hermeneutic principle when we skip through a constitution and instead approach a specific clause with an already worked out mental model of it. We could rely on a casebook classifying the 1987 Philippine Constitution as a liberal democratic constitution. Or we could have formed a specific mental model of it ourselves from reading about, say, its enactment history. Then we interpret a clause of a constitution in light of the worked out mental model instead of its other provisions.
A recent article by Surabhi Chopra illustrates the problem with this practice of clause-bound textualism. After recounting the democratization movement in the Philippines which in 1986 toppled the dictatorship Ferdinand Marcos had established when, “in 1972, he declared martial law”, she concludes that the 1987 Constitution was “designed to prevent authoritarian capture by the President”.[12] From this enactment history she forms a mental model of the Constitution as “post-authoritarian”.[13] Finding the clauses “the Philippines is a democratic and republican State”[14] and “Civilian authority is, at all times, supreme over the military”[15] in its declaration of principles, Chopra concludes that the Constitution “places martial law beyond the constitutional pale”.[16] This conclusion would shock any first year law student in the Philippines. Never mind that the Philippine Congress and Supreme Court had both recently supported the President’s declaration of martial law over Mindanao. The Constitution itself, in the section Chopra footnotes (for a different claim) to the sentence following her conclusion quoted above, expressly empowers the President in some situations to “place the Philippines or any part thereof under martial law.”[17]
Chopra’s article also illustrates a second way in which constitutional comparatists sometimes violate the hermeneutic principle discussed above. This is when a mental model worked out from various constitutions blinds us to clauses in another constitution that do not fit it.
As the title of the article suggests, although Chopra describes the 1987 Constitution as a hybrid, she views it through the lens of transformative constitutionalism, a model first worked out from South Africa’s post-apartheid Constitution. According to this mental model, says Chopra, “What was once understood as lying beyond the judicial ambit might now, because of the demands of a transformative constitution, fall within it”; this in turn “might require courts and lawyers to fashion new norms, standards, and modes of reasoning.”[18] Chopra criticizes the Philippine Supreme Court for “judicial modesty” encouraged by the 1987 Constitution’s “textual silence”.[19] Leaving aside People v. Leachon’s[20] obiter dictum and Oposa v. Factoran’s[21] natural rights legal reasoning (which is of limited application outside of Lockean civil and political rights[22]), Chopra bases her criticism on a handful of decisions where she thought the Court “skated over the surface of social justice provisions rather than elucidating norms that might further the transformative aims of the 1987 Constitution.”[23]
By textual silence, Chopra means that the 1987 Constitution’s social justice and human rights clauses are “framed in ways that can obscure institutional authority to interpret and enforce them.”[24] One thing that jumps out at someone reading the Philippine Constitution from preamble to transitory provisions, however, is that it has about a hundred ‘by law’ clauses: language delegating the fleshing out of certain provisions to future legislation.[25] These include the legislative delimitation of constitutional rights such as informational privacy,[26] the right to travel,[27] urban and agrarian reform,[28] etc. The delegation is not specifically to Congress because every bill it passes needs to be presented to the President before it can become law, and in some instances the people at large, a commission, or affected locals also directly partake in lawmaking.[29] By reading delegatory ‘by law’ clauses in light of similarly worded clauses stating that ‘the Congress may, by law,’ do this or that act, however, we can glean that the delegation is mostly to Congress.[30] The record of the 1986 Constitutional Commission supports this reading, for example Commissioner Felicitas Aquino’s explanation that “What we envision here”—viz., the article on social justice and human rights—“is a mandate specific enough that would give impetus for statutory implementation.”[31] So when the Constitution states that “The State shall, by law, undertake an agrarian reform program…”, it means that Congress must pass an agrarian reform statute (it did). This is in line with revolutionary president Corazon Aquino’s exhortation to the Constitutional Commission to “limit [them]selves to [thei]r constitutional mission” and “not…do th[e] legislature’s work for it” and thus leave the Constitution “open-ended”.[32] This open-endedness includes the statutory fleshing out of the Constitution’s social justice and human rights clauses.
Suggested citation: Bryan Dennis G. Tiojanco, How to Misread a Constitution, Int’l J. Const. L. Blog, July 1, 2022, at: http://www.iconnectblog.com/2022/07/how-to-misread-a-constitution/
[1] Martin Heidegger, Being and Time: A Translation of Sein und Zeit 139–140 (Joan Stambaugh tr., 1966); see also 1 William James, The Principles of Psychology ch12 (1890)
[2] See Tom Ginsburg & Aziz Huq, How to Save a Constitutional Democracy 10 (2019)
[3] Hans-Georg Gadamer, Truth and Method 267 (2nd rev. ed., Joel Weinsheimer & Donald Marshall trs., 1989)
[4] Heidegger, supra n.1 at 141
[5] Gadamer, supra n.3 at 267
[6] Heidegger, supra n.1 at 143
[7] Gadamer, supra n.3 at 267–269
[8] Heidegger, supra n.1 at 6
[9] Gadamer, supra n.3 at 268
[10] Id. at 269
[11] Id. at 291
[12] Surabhi Chopra, The Constitution of the Philippines and transformative constitutionalism, 10 Global Constitutionalism 307, 311 & 313 (2021)
[13] Id. at 310
[14] Const., art. II, sec. 1
[15] Const., art. II, sec. 3
[16] Chopra, supra n.12 at 313
[17] Const., art. VII, sec. 18
[18] Chopra, supra n.12 at 310
[19] Id. at 325
[20] G.R. No. 108725–26, 357 Phil. 165, 25 September 1998
[21] G.R. No. 101083, 30 July 1993
[22] Emmanuel Fernando, Natural Rights Legal Theory, 74 Phil. L.J. 1 (1999). E.g. Republic of the Phils. v. Sandiganbayan, G.R. No. 104768, 21 July 2003 (Puno, J., separate opinion).
[23] Chopra, supra n. 12 at 324
[24] Id. at 315
[25] See Rosalind Dixon & Tom Ginsburg, Deciding not to decide: Deferral in constitutional design, 9 Int’l J. Const. L. 636 (2011)
[26] Const., art. III, sec.3(1)
[27] Const., art. III, sec.6
[28] Const., art XIII, secs.4 & 9
[29] Const., art. VI, secs.27(1) & 32; art.X, secs. 10, 11 & 18; art. XVI, sec.2
[30] Const., art. VI, secs.23(2) & 28(2); art. VII, sec.16; art. X, sec. 11, art. XII, sec. 2; art. XVI, sec. 2. See Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 112 (1999)
[31] II Records of the Constitutional Commission No. 46, 2 Aug. 1986. See also II R.C.C. 47, 4 Aug. 1986 (“It is up to the Congress or to the proper agency of the government to pursue these concepts and objectives under circumstances that are available to the government and to the people.”)
[32] Corazon Aquino, Address of the President, in I RCC 1, 2 Jun. 1986.
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