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Resistance To Constitutional Theory: The Supreme Court, Constitutional Change, And The "Pragmatic Moment", B. Jessie Hill

Faculty Publications

This Article approaches the law-politics divide from a new angle. Drawing on the insights of literary theory, this Article argues that every act of interpretation, including constitutional interpretation, inevitably draws not only on text but also on context, and that the relevant context extends beyond both the written document and the historical context of its origination. This understanding derives from speech-act theory and from postmodern literary theory. As Paul de Man argues in his seminal essay, The Resistance to Theory, moreover, the act of interpretation always encompasses a “pragmatic moment” that undermines the effort to attain perfect theoretical coherence. Applying …