My students have been wrestling with the problem of interpretive ideology, especially in the construction of legitimating systems of constitutional interpretation. They have come to understand the power of text and intent as frameworks to apply text to the specific context in which its application appears required as these notions have been elaborated in the conventional writings of jurists and academics.
They understand the disciplining overlay of the two great oppositional principles on which the American political union is founded from the earliest jurisprudence of the Republic--a preference for dividing and sharing power within the state apparatus (the avoidance of tyranny) and an equal preference for enhancing a workable government (the promotion of efficiency). This was perhaps well put recently by "the Honorable David H. Souter ’61, LL.B. ’66, former associate justice of the U.S. Supreme Court, [who] spoke of the necessity in constitutional law to choose between 'values that may very well exist in tension with each other,” pointing out that decisions are never “straightforward exercise[s] of reading fairly and viewing facts objectively.' The Constitution, he declared, reflects 'the desire of the American people…to have things both ways. We want order and security, and we also want liberty…These pairs of desires…can clash.'" American Values and Constitutional Law, Harvard Magazine, May 28, 2010.
Likewise systems grounded in effects, in the results, may well devote considerable energies toward developing those expressions of discovering and balancing popular desire; yet at its limit this systemic approach is driven to sacrifice the very system for ordering power to achieve perceived objectives ineffectively expressed through that system. "[I]f one accepts the principle that the object of judicial interpretation is to determine the intent of the legislature, being bound by genuine but unexpressed legislative intent rather than the law is only the theoretical threat. The practical threat is that, under the guise or even the self-delusion of pursuing unexpressed legislative intents, common-law judges will in fact pursue their own objectives and desires." Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, Princeton: Princeton University Press, 1997, at 17-18.