MARIELA VARGOVA

DIALOGUE, PLURALISM, AND CHANGE:THE INTERTEXTUAL CONSTITUTION OF BAKHTIN,

KRISTEVA, AND DERRIDA

ABSTRACT. In this article I show how the concept of intertextuality as developedby Mikhail Bakhtin, Julia Kristeva and Jacques Derrida can be applied to thepolitical theory of constitutionalism. Such an approach carries with it the valuable

democratic idea that all texts in society, including the political constitution, are in adynamic relationship and reflect social pluralism. By analyzing and comparing in-tertextual theories, I develop the idea of the constitution as an open and emanci-

patory interpretative and textual category. I show how intertextual theorizingcontributes significantly to the democratization of a modern liberal constitutionalorder, offering distinct strategies for progressive political and social transformation.

KEY WORDS: constitutionalism, constitutional interpretation, democratization,intertextuality, social pluralism, emancipatory transformation

INTRODUCTION

As developed by the Russian literary theorist Mikhail Bakhtin andthe French philosophers Julia Kristeva and Jacques Derrida, theconcept of intertextuality offers an innovative way to look at thetextual and interpretative features of modern constitutions. Twoimportant features of this concept make it particularly useful forconstitutional analysis. First, intertextuality contends that texts lackfixed authorships and meanings. Instead, they embody the notionsof pluralism, openness and change. Second, and in contrast to theconventional understanding of the political constitution as a nor-matively superior and historically privileged text, the concept of in-tertextuality carries the radical democratic idea that all social andpublic texts in society are bound in a dynamic relationship toongoing social and political transformations.

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With this transformative potential in mind, in this article I analyzehow, by using the intertextual approaches of Bakhtin, Kristeva andDerrida, we can see constitutional text and its interpretations asforming a particular constitutional dynamic that I call constitutionalinter-texts. Building on intertextuality, I develop the idea of theconstitution as a heterogeneous politico-legal text and textual con-struction. In its internal textual space, the constitution embodies aplurality of meanings of good and justice, expressing social pluralismin society. Externally, constitutional text has an active relationshipthrough dialogue with other public interpretations and is open tostruggles for social transformation in society.

Bakhtin, Kristeva and Derrida each employ distinct intertextualstrategies. While Bakhtin and Kristeva offer a typology of texts thatdistinguishes between authoritative and dialogic textuality, Derridaviews the political constitution as a deconstructible interpretativecategory in a state of ongoing refounding and reinterpretation. Eachauthor also presents different modalities of intertextual constitu-tional transformation. On the one hand, I interpret Bakhtin andKristeva as offering a modality of social transformation in the formof open-ended intertextual processualism. Their model embodies anongoing revolutionary change that constantly challenges the socialstatus quo and authority in society. Constitutional text simulta-neously voices the official viewpoints of justice and their criticalquestioning and destabilization. Using Kristeva’s ideas, we can seehow constitutional text is subject to change and critical interroga-tion from the perspective of pluralism.

On the other hand, while Derrida considers any moment ofrefounding as a new interpretation and any instance of constitutionalinterpretation as a new beginning, he nevertheless stresses the role ofrepetition, conservation and redemption in constitutional judgment.I see an important ethical dimension in Derrida’s approach. By open-ing the process of constitutional interpretation to difference and thefuture, Derrida also stresses the responsibility to the past, to thememory of the founding moment of political community. Every actof constitutional interpretation is a future dialogue with the originalfounding moment. With responsibility to both the constitutional pastand future, the Derridean process of intertextual constitutional inter-pretation tries to redeem the injustices of the past with the perspec-tive of the future, with the voice of alterity, and with the hope, inDerrida’s words, for ‘justice-to-come’.

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Yet, with their unconditional openness to the other and to thefuture, intertextual interpretative strategies risk constant destabili-zation and indeterminacy of meanings. On the one hand, whenapplied to constitutional space, the intertextual strategy calls forconstant interrogation of the normative status quo, deconstructingstable and fixed meanings of good. The constant questioning ofdominant and authoritative interpretations may lead to undesirablecases of overruling progressive normative achievements and to theimposition of regressive interpretations of good. Therefore, at theend of this article, I will suggest possible interpretative strategies toreduce the risk of indeterminacy, providing for emancipatorypolitical transformability.

Because the use of the concept of intertextuality stands in suchcontrast to that of a more conventional understanding of the politi-cal constitution, I think it useful at this point to offer a brief over-view of conventional constitutional textuality before turning to amore detailed analysis of the concept itself.

CONVENTIONAL CONSTITUTIONAL TEXTUALITY

Most modern constitutional theories presuppose the establishment ofa sharp normative distinction between a superior constitutional textand other interpretative textual practices in society – political, public,and legal.1 These conventional strategies of constitutional interpreta-tion reflect most notably the American constitutional experience andthe continental constitutional tradition. Yet even in countrieswithout written constitutions and where there is no formally codified

1 Ever since the constitutional revolutions of the eighteenth century, modernconstitutional theory has conceived of a constitution as a fundamental set of prin-ciples and institutional arrangements aiming to restrict arbitrary power and ensure

‘limited government’ (See Giovanni Sartori, ‘Constitutionalism: A PreliminaryDiscussion’, The American Political Science Review 56/4 (1962) 853–864, p. 855).Preoccupied with the need to guarantee political and normative stability, the tradi-tional constitutional approach has sought to establish an enduring institutional order

that is beyond the reach of everyday democratic activities and pluralist social life. Ithas viewed the constitution as a constricted and formal institution, which is detachedfrom citizens’ ordinary democratic practices. (See Graham Maddox, ‘A Note on the

Meaning of ‘Constitution,’ The American Political Science Review 76/4 (1982)805–809).

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constitutional text, as in Great Britain, political life is still predicatedon the presumption of having a constitution.2

To be sure, this conventional approach sharply enhances thesuperior meaning of the constitution over other public texts andinterpretative practices in society.3 Once established, this distinctioncarries over into the understanding of constitutional textuality as asuperior normative document over other public interpretations ofjustice. It also creates a distinction between the text of the constitu-tion on the one hand, and its subsequent future interpretations bycourts and political actors, on the other. Modern constitutionalismcan thus be seen as enforcing strict textual and interpretative divi-sions and drawing a sharp normative line between interpretationsby constitutional actors and everyday public textuality.

Another aspect of the conventional constitutional approach is theperception of the constitution as a written and static normative docu-ment. The idea of having fixed and stable constitutional meanings is theforemost feature of the conventional understanding of constitutionaltextuality. The set of fixed normative principles presents a constitutionalpromise to the future, providing for the stability and continuity of thepolitical community. Yet this approach also gives grounds for recourseto the ‘original’ meaning of the constitution, i.e., to the constitutionalmeanings as they were apparently meant by the constitutional creators.4

2 In England, there is no written constitution and no formal separation betweenconstitutional and normal legislation. Yet, as constitutional scholar A. V. Diceyasserts, ‘it is a mistake to think that the whole law of the English constitution might

not be reduced to writing and be enacted in the form of constitutional code.’ SeeA.V. Dicey, Introduction to the Study of the Law of the Constitution (London:Macmillan and Co. Ltd, 1939), pp. 90–91.

3 Even progressive constitutional theories such as those of Bruce Ackerman, John

Rawls, and JurgenHabermas, amongothers, differentiate between higher constitutionaltextuality and ordinary political interpretative practices. See John Rawls, PoliticalLiberalism (New York: Columbia University Press, 1993); Bruce Ackerman, We thePeople. Volume 1: Foundations (Cambridge, MA: The Belknap Press of Harvard Uni-

versity Press, 1991); and JurgenHabermas,Between Facts andNorms:Contributions to aDiscourse Theory of Law and Democracy (Cambridge, MA: The MIT Press, 1999).

4 Keith E. Whittington, ‘How to Read the Constitution: self-Government and theJurisprudence of Originalism’, First Principles Series, The Heritage Foundation,

No.5, (2006) 1–13, pp.1–5. See also Amy Kapczynski, ‘Historicism, Progress, and theRedemptive Constitution’, Cardozo Law Review 26/3 (2005) 1041–1118, p. 1061, andNatalie Stoljar, ‘Survey Article: Interpretation, Indeterminacy and Authority: Some

Recent Controversies in the Philosophy of Law’, Journal of Political Philosophy 11/4(2003) 470–498, p. 472.

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The conventional constitutional theorizing is most explicitlyembodied in the view that the constitution’s text derives both itslegitimacy and its authority primarily from the past, i.e., from theconstitution-making activities of the ‘founding fathers’. In this way,what matters most is the ideological position and views of justiceas expressed by the founding generation. All subsequent interpreta-tions concerning questions of justice are assigned a lesser textualstatus. Moreover, because of this backward-looking stance, theconstitution’s text demands normative compatibility and allegiancefrom all future generations of constitutional interpreters. The con-ventional approach can be hostile to ideas of regular constitutionalchange and normative transformation. It may inhibit the ongoingprogressive transformative potential of a modern liberal society.

Such constitutional theorizing privileges constitutional text atthe expense of other everyday public interpretative practices embed-ded in citizens’ everyday democratic life. Conventional constitu-tional theorizing grants greater democratic legitimacy and superiortextual status to constitutional interpretations by parliaments andcourts. It envisions constitutional interpretation as an exclusive pre-rogative of judges, ignoring other unconventional locations andsources of interpretation of constitutional meanings outside thejudiciary. These can be found, for example, in citizens’ everydaypublic deliberations in a vibrant civil society. Because of this, con-ventional constitutional textuality lacks a contextual openness toeveryday social processes and new social situations. It restricts therange of constitutional authors and interpreters and disregards thenormative authority of other political and public interpretations.

To my mind, then, conventional constitutional theorizing hasserious deficits. In what follows, I look for ways to democratize theidea of constitutional text, opening it to progressive constitutionalinnovation. I pursue a strategy of constitutional interpretation thatis open and inclusive both in regard to meanings and its constitu-tional interpreters.5 I see in Mikhail Bakhtin’s critical literary the-ory, Julia Kristeva’s poststructural approach to texts and Derrida’s

5 Similarly, Natalie Stoljar presents poststructuralist and deconstructive

approaches to legal interpretation under the name of ‘critical theories’ and stressesthat these approaches share the idea that ‘[t]here are no authoritative interpretationsbecause interpretations (as well as laws and legal institutions) are mere ‘‘perspec-

tives’’, typically perspectives that perpetuate dominant ideologies and powerstructures.’ Ibid., p. 493.

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deconstruction in legal interpretation, effective tools and strategiesto overcome the ‘conventional’ understanding of constitutional tex-tuality and authority, and replace it with one that, in my view, ismore open and dynamic – the intertextual or dialogic understandingof the constitution’s text and interpretations.

TEXTUAL OPPOSITIONS: BAKHTIN AND KRISTEVA

I turn now to Bakhtin and Kristeva’s paradigmatic typology oftextuality. Their approach is characterized by a differentiation betweentwo types of textual interpretation: authoritative and monologic onthe one hand, and dialogic and intertextual, on the other. I maintainthat this distinction can be effectively applied to constitutional textsand strategies of constitutional interpretation. Building on Bakhtinand Kristeva’s critique of authoritative texts as monologic construc-tions, I use their ideas of dialogism and intertextuality to understandthe constitutional text in an alternative way: as a pluralist and opentextuality.

Against ‘Authority’ in Texts

I begin with Bakhtin’s distinction between ‘authoritative’ and ‘dia-logic’ texts. Known primarily as a theoretician of literary texts,Bakhtin approaches the idea of texts in the broadest sense of theterm. By extending his analysis beyond the confines of ‘literature’,he arrives at ‘a unitary view of the entire area of human sciencesbased on the identity of their material texts, and of their method:interpretation.’6 The all-encompassing nature of his analysis can beseen in his broad references to texts and their interpretation asslovo, that is, word, discourse, or utterance.

In his essay ‘Discourse in the Novel’, Bakhtin makes a major con-tribution to modern textual analysis with his concept of dialogism,which is the idea that a plurality of meanings exist in texts.7 He devel-ops this idea by critically challenging the notion of ‘authority’ intexts. For him, authoritative text embodies an ‘authority as such, or

6 Tzvetan Todorov, Mikhail Bakhtin: The Dialogical Principle (Minneapolis:

University of Minnesota Press, 1984), p. ix.7 Mikhail Bakhtin, ‘Discourse in the Novel’, in his The Dialogic Imagination

(Austin: University of Texas Press, 1981), pp. 259–422.

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the authoritativeness of tradition, of generally acknowledged truths,of the official line and other similar authorities’.8

Bakhtin perceives authoritative text as an isolated and dominanttextual stratum, always situated in the distanced zone of the past.This type of text is normatively superior to the present and thefuture. In this way, authoritative textuality is always a ‘priordiscourse’, it embodies the ‘word of the fathers’, and its ‘authoritywas already acknowledged in the past.’9 Because it belongs to thepast, authoritative text assumes the privilege of demanding uncon-ditional allegiance from other texts. Not only must authoritativetext not merge with other discourses and future interpretations, butit must impose itself on them. In this way, authoritative text con-tains and asserts the dominant interpretation of its founding fathersover time. It is always ‘sharply demarcated, compact and inert.’10

Yet Bakhtin stresses that, if it is subsequently ‘deprived of itsauthority, [the authoritative text] becomes simply an object, a relic,a thing’ and its semantic structure is static and dead.11 Thus, as onecommentator notes, authoritative text can be seen to ‘valorize one‘‘official’’ point-of-view, one ideological position, and thus one dis-course, above all others.’12

Similar to Bakhtin, Kristeva associates monological texts withhierarchical structures, including unity of meaning, authoritative-ness, the word of God, law and order. Following Bakhtin’s accountof authoritative discourse, Kristeva develops her own concept ofauthoritative text in the essay ‘Word, Dialogue, and Novel’, callingit monological discourse.13 In this kind of text, Kristeva writes, the‘dialogue ... is smothered by a prohibition, a censorship, such thatthis discourse refuses to turn back upon itself, to enter intodialogue with itself.’14 Monological discourse is an embodiment ofan ‘absolute point of view, which coincides with the wholeness of a

8 Ibid., p. 344.9 Ibid., p. 342.10 Ibid., p. 343.11 Ibid., p. 344.12 Graham Allen, Intertextuality (London: Routledge, 2000), p. 24.13 Julia Kristeva, ‘Word, Dialogue, and Novel’, in Leon S. Roudiez (ed), Desire in

Language: A Semiotic Approach to Literature and Art (New York: ColumbiaUniversity Press, 1980), pp. 64–91, p. 77.

14 Ibid., p. 77.

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god or community.’15 Thus, Kristeva connects monological textswith a logic that presupposes ‘a hierarchy within the structure ofsubstance’, one that is causal, theological, dogmatic; ‘it is a belief inthe literal sense of the word.’16

We can see here how Bakhtin and Kristeva’s account of authori-tative/monological textuality reminds us of the conventionalapproach to constitutional interpretation that I presented above.Their understanding of authoritative or monologic textuality can bedirectly associated with a view of the constitutional text that isalways bound to the past, and that is always looking backwardtowards its origin and to the decisions of the founding fathers.Thought as an authoritative/monologic text, the constitution gainsthe status of a historically distant or normatively sacred documentthat is detached from other interpretative practices in society. Theconstitutional text embodies the authoritativeness of tradition andthe original intent of its framers, as well as their ideological posi-tions and acknowledged truths. It binds all future interpretationsand restricts any attempts at normative renovations and rediscov-ery. It is seen as a special script that is distant and magisterial inboth temporal and normative significance.

The Concept of Intertextuality

Along with their critique of authority in texts, Bakhtin and Kristevaeach develop a theory of texts as dialogues or inter-texts. Bothauthors elaborate the concept of textual dialogism from two perspec-tives. They analyze texts from within the interior of their textualspace, that is, from the perspective of the meanings they embody andthe processes of their textual production. In addition, Bakhtin andKristeva view texts in relation to their exterior space, that is, as partof the broader social, cultural, and historical textuality that makes upsocial pluralism. I thus see their contribution to constitutional inter-pretation in two ways. First, the intertextual approach pluralizes theidea of constitutional normativity, making it an open and heteroge-neous textual stratum. Second, it connects constitutional textuality tothe broader social practices and transformative struggles in society.

Bakhtin approaches texts as dialogical constructions. Unlikeauthoritative texts, dialogic texts are heterogeneous, for they are

15 Ibid., p. 77.16 Ibid., p. 78.

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‘half-ours and half-someone else’s’.17 Bakhtin calls them ‘double-voiced’,18 and maintains that dialogic texts and interpretationspresent ‘an intense interaction, a struggle... among various availableverbal and ideological points of view, approaches, directions andvalues.’19 Bakhtin employs the term heteroglossia to explain theheterogeneous character of texts, meaning that texts present amultiplicity of social voices, thus embodying a wide variety of inter-relationships.20 Each voice of heteroglossia represents both a specificpoint of view on the world and a particular way of conceptualizingthe world. Notably, Bakhtin connects textual dialogism with socialstruggles and pluralism, underlying the emancipatory potential ofpluralist texts and interpretations. For him, multiple languages intexts ‘live a real life, they struggle and evolve in an environment ofsocial heteroglossia.’21 By connecting the idea of textual heteroglos-sia with that of social pluralism, Bakhtin makes it clear that texts arethe embodiment of an existing socio-ideological dialogue between thepresent and the past, between different groups in society.22

In this way, Bakhtin’s theory regards dialogic texts as beingalways contemporary. Dialogic texts are semantically infinite: theyare open to new discourses and to new social circumstances andcontexts. In this way, dialogic texts are always in a state of creativ-ity and productiveness. And as such, they pose a threat to any uni-tary, authoritarian, and hierarchical conception of society, art, andlife.23

Building on Bakhtin’s idea of dialogism, Kristeva posits that alltexts should be seen as intertextual. For her, intertextuality meansthat any text ‘is constructed as a mosaic of quotations; any text is theabsorption and transformation of another.’24 In her essay ‘TheBounded Text’, Kristeva writes of intertextuality as ‘a permutationof texts’, as the idea that ‘in the space of a given text, several

17 Bakhtin, op. cit., p. 345.18 Ibid., pp. 324–327.19 Ibid., p. 346.20 Ibid., p. 263.21 Ibid., p. 292.22 Ibid., p. 291.23 Allen, op. cit., p. 27.24 Kristeva, op. cit., p. 66.

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utterances, taken from other texts, intersect and neutralize oneanother.’25

Like Bakhtin, Kristeva argues that intertextual texts stand inopposition to any unity of meaning and to the authoritativeness ofany official definition. For her, intertextuality opposes the prohibi-tive and hierarchical logic of monologism. It transgresses any rulesof linguistic code and social morality.26 Intertextuality presents aplurality of meanings and embodies the constant change of mean-ings emerging in society. The intertextual strategy is thus ‘charac-terized by opposition to any official monologism claiming topossess a ready-made truth.’27 Because of its disruptive and ques-tioning character, moreover, intertextuality is able to exteriorizeand unveil the hidden political and ideological conflicts present atany historical moment in society. It gives expression to all thosealternative and different voices that embody a struggle against theofficial normativity and political establishment.28

It is important to note that in the same way that we saw withBakhtin’s heteroglossia, Kristeva connects intertextuality to thebroader cultural and social processes underway in a society. Sheplaces texts firmly within the general cultural, social and publiccontext. In this way, intertextuality can be seen as embodied exter-nally in the relation each text has to other public texts in a society.Kristeva refers to this relationship of texts as ideologeme, as havinghistorical and social coordinates, always situated ‘within (the textof) society and history.’29 For Kristeva, texts are part of thebroader social and political textuality; they embody society’s many

25 Julia Kristeva, ‘The Bounded Text’, in Leon S. Roudiez (ed), Desire in

Language: A Semiotic Approach to Literature and Art (New York: ColumbiaUniversity Press, 1980), pp. 36–63, p. 36. In the following analysis, I restrict myinterpretation and employment of Kristeva’s concept of intertextuality to her

interpretation of Bakhtin’s translinguistics and to her, as I call it, pre-psychoanalyticturn of textual interpretation presented in some of her early scholarly work.

26 Kristeva, ‘word, Dialogue and Novel’, p. 70.27 Ibid., p. 81.28 Ibid., pp. 83–84. As Graham Allen observes, for Kristeva, the dialogic texts are

arenas for struggles that aim to subvert ‘the belief in the unity of meaning or of the

human subject… all ideas of the logical and the unquestionable.’ See Allen, op. cit.,p. 45.

29 Kristeva, ‘The Bounded Text’, pp. 36–37.

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ongoing transformations and productions of meanings.30 As such,texts present the multiplicity of voices emergent in a pluralistsociety and reflect ongoing social and historical transformations.

We can see how dialogism and intertextuality both rejectcategorical unity and hierarchies of meaning, and instead foster apluralism of voices on questions of difference and otherness. Thenotion of intertextuality presupposes that all texts are in a constantstate of productivity, and always in a state of change and transfor-mation. Even the author of a text, the speaking or writing subject,is ‘no core, fixed, unified self’, but is a differentiated, complex, het-erogeneous force. Kristeva contends that the author of a text is a‘subject-in-process’, conveying the notion of subjectivity as always‘on trial’, constantly questioning her identity and undergoingchange.31 For Kristeva, then, even the author of a text is in a stateof ‘innovation, of creation, of opening, of renewal’: he/she is an‘open system’.32

The Constitution as ‘Inter-Texts’

Bakhtin and Kristeva’s theorizing of intertextuality provides a newtheoretical strategy for analyzing constitutional text by envisioningthis text as a heterogeneous construction subject to dynamic changeand normative transformation. Following Bakhtin and Kristeva’stextual distinctions, I envision the constitutional text as an exampleof inter-text. By inter-text, I understand the constitution to be apolitico-legal textuality that is heterogeneous both in its interiortextual stratum and in its external relationship to the fact of socialpluralism.

First, as indicated above, the intertextual approach calls intoquestion the view of the constitutional text as consisting of fixedmeanings and of presenting one absolute definition of the commongood. Instead, as inter-text, the constitution appears as a web ofplural interpretations of good and of self. It embodies a novelconstitutional ‘linguistics’ of pluralism, expressed in its textual

30 Julia Kristeva, ‘Semiotics: A Critical Science and/or a Critique of Science’, inToril Moi (ed), The Kristeva Reader (New York: Columbia University Press, 1986),pp. 74–88, p. 87.

31 Noelle McAfee, Habermas, Kristeva, and Citizenship (Ithaca: Cornell University

Press, 2000), p. 69.32 Ross Mitchell Guberman (ed), Julia Kristeva Interviews (New York: Columbia

University Press, 1996), p. 26.

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openness to alternative voices and meanings of good and justice.Through its text, the constitution promotes the perspective of the‘other’ in constitutional discourse, accounting for all those voicesthat have traditionally been marginalized in society.

Let me give an example of constitutional inter-text with linguisticdiversity. In my view, a constitutional text is intertextual when it ex-presses the voices of social pluralism and heterogeneity, respondingto the emergent cultural, ethnic, linguistic and gender diversitieswithin a political community. Contemporary constitutional textsaccommodate linguistic diversity in various ways. Some constitu-tional texts co-equally recognize and protect language diversity in itsconstitutional norms, giving an official status to more than one lan-guage. Such constitutions are anti-monological, since they giveequal representation to alternative and competing visions of good inliberal society. An example of such constitutional intertextuality isthe Canadian Constitutional Act of 1982 which recognizes the offi-cial status of two languages – English and French. The Act affordsthe English and French linguistic communities equal status andequal rights and privileges, as well as the right to distinct educa-tional and cultural institutions. It also promotes the preservation ofdistinct cultural communities, protecting the rights of aboriginalpeoples, including the Indian, Inuit, and the Metis.33

We see how by encouraging and promoting new pluralist mean-ings, the intertextual constitution is elevated to a new normativestatus of being a ‘double law’: the official voice on the one hand,and the constant critical voices of those who are different or havebeen marginalized, on the other. The text of the constitution neversettles on a certain dominant normative status quo. It is alwaysalert to changes in society, always ready to reflect new voices andmeanings. Via its openness and heterogeneous character, the consti-tution has the potential to promote normative change and societaltransformation.

The idea of constitutional inter-texts also asserts that the consti-tution has an active exterior interpretative dimension. Its textualityis broader than that of the traditional constitution as it draws from

33 See the Constitution Act, 1982, http://laws.justice.gc.ca/en/const/annex_e.html.(Accessed 20 June 2007). In addition, I want to point out that there are otherconstitutional texts that recognize linguistic diversity only as a matter of territorial

priority and protection. A third group of constitutions promote linguistic pluralismat the level of institutional structures of the state.

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multiple sources of interpretation outside the formal means oftextual interpretation engaged in by courts and legislatures.Because of its exposure to innovation and critical interrogation, theconstitutional text is always open to dialogue with other interpreta-tions such as those developed in civil society, in media, literature,and scholarship. The intertextual approach thus presupposes a newtype of active democratic politics of constitutional interpretationthat draws on a vibrant and engaged relationship between citizens’daily democratic life and their constitution.34 Because it is groun-ded in everyday democratic life, the intertextual constitutional pro-cess can more effectively promote citizens’ transformative voicesand struggles for equality and freedom.

Mirroring society’s ongoing struggles over interpretations of jus-tice, constitutional text is constantly developing and innovating inresponse to new social and historical contexts. Following Kristeva,we can see how constitutional text is in-process, always revisableand never complete; it is open-ended and future-oriented. Theintertextual constitutional process reminds us of what the constitu-tional scholar Vivien Hart calls a ‘continuing conversation’, anopen-ended process of normative transformation that is also opento the participation of everyone.35 The openness of the constitu-tional process challenges the perception of the constitution as the‘traditional single text and indeed the written text’, understandingconstitutional textuality as an evolving and pluralist concept,consisting of many texts and interpretations.36

Yet the constitutional text is also an ongoing historical exchangebetween past and future constitutional writings and interpretationsof society’s norms. I thus look for a strategy of constitutional inter-pretation that offers an adequate interplay between constitutionalpast and future, and for a modality of constitutional interpretation

34 Richard Bellamy and Dario Castiglione also question the rigid boundaries

between constitutional politics and normal political processes. Their notion of‘political constitutionalism’ aims to offer ‘a more differentiated appreciation of thenature of democratic decision making’, which places the political constitution with

its system of basic rights and liberties within ordinary political processes. SeeRichard Bellamy and Dario Castiglione, ‘Constitutionalism and Democracy –Political Theory and the American Constitution’, British Journal of Political Science

27/4 (1997) 595–618.35 Vivien Hart, ‘Constitution-Making and the Transformation of Conflict’,

Peace & Change, 26/2 (2001) 153–176, p. 158, p. 153.36 Ibid., p. 157.

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that adds to the intertextual strategy of post-structuralism. I findthat Derrida’s deconstruction in legal interpretation provides anadequate model. In what follows, I analyze Derrida’s deconstruc-tion and find it to be an effective intertextual strategy of constitu-tional interpretation that provides for an open-ended and justprocess of constitutional decision-making, offering an intriguinginterplay between constitutional past and future.

DERRIDA’S DECONSTRUCTION OF CONSTITUTIONAL TEXTUALITY

Although similar in some aspects to Bakhtin’s dialogic andKristeva’s intertextual approaches to textuality, Jacques Derridadevelops a distinct idea of an intertextual constitution; both as atext and as a form of interpretation. He does so by applying hisdeconstructive approach as a textual strategy to legal and constitu-tional interpretation.

I interpret Derrida’s intertextual constitution as a textual orinterpretative dialogue in two respects. First, his constitution repre-sents a dialogue between the moment of founding and future rein-terpretations; it is thus an intricate interpretative interchangebetween the past and the future. Second, Derrida offers an idea oflegal and constitutional judgment as an open process, one charac-terized by both undecidability and ongoing deliberation. In thisway, Derrida’s idea of constitutional interpretation is an open anddynamic process, always directed toward the Other, to the future,and to justice ‘to-come’.

Dethroning the Founding

In his essay, ‘Force of Law: The Mystical Foundation of Author-ity’, Derrida develops an intertextual understanding of constitu-tional text.37 Central to his inquiry is the normative authority of the

37 Jacques Derrida, ‘Force of Law: The ‘‘Mystical Foundation of Authority’’’ inDrucilla Cornell, Michel Rosenfeld, David Gray Carlson (eds), Deconstruction andthe Possibility of Justice (New York: Routledge, 1992), pp. 3–67. Derrida’s approach

of deconstructive interrogation or ‘deconstructive line of questioning’ means, in hiswords, ‘destabilizing, complicating, or bringing out paradoxes of values.’ ForDerrida, deconstruction is ‘through and through a problematization of law and

justice,’ it is ‘a problematization of the foundations of law, morality and politics.’(p. 8).

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foundations of law (droit), and more broadly, of the constitutionalfounding of a modern polity: ‘the institutive act of a constitutionthat establishes what one calls in French l’etat de droit.’38 Derridarefers to the moment of founding and its constituting text as adominant interpretation. The founding of the state comes with aforce of law, or, as Derrida puts it metaphorically, with the violenceof dominant interpretation. The moment of constitution-making is acoup de force; an act of performative and interpretative violence.39

The dominant interpretation at the moment of founding is the con-stitution’s text, the original constitutional interpretation.

Derrida presents the creating of the constitutional text as a newbeginning with no law or text to guarantee, contradict, or invali-date. He sees the moment of founding as a revolutionary act, aproduction of something new that has a promise toward the future.The writing of the original or dominant constitutional text is anextraordinary, groundbreaking moment that institutes and posi-tions a new law: the polity’s constitution. The dominant interpreta-tion is clearly distinguished from other interpretative practices.Because it forms the legal basis of the political community, thedominant interpretation of the constitutional beginning is its prom-ise of the future.40

Yet, for Derrida, the originary writing and reading of the constitu-tional text – this act of dominant interpretation – is a performativeand interpretative act of violence because it is not based on any pre-vious law or textual interpretation. The founding is ungrounded vio-lence. Without legal grounds, the founding of a state presupposesthat its constitutional text, its dominant interpretation, is neither le-gal nor illegal. It is a non-legal constitutional interpretation whosejustification and legitimacy are open to normative challenge andinterrogation. Moreover, because of its violent character, the found-ing of the dominant constitutional interpretation cannot be just. It isalways associated with imposition of dominant will and power. Thefounding of the state also symbolizes an act of violence because it im-poses someone’s arbitrary norms and interpretations over someoneelse’s. For instance, in the European constitutional tradition, the vio-lence of constitutional founding and its dominant interpretation havebeen most notoriously embodied in the imposition of one’s language

38 Ibid., p. 24.39 Ibid., p. 13.40 Ibid., p. 38.

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over someone else’s, a national or ethnic minority, suppressingdifference and the voice of the other.41

Since the founding is always associated with an act of violence,Derrida questions the legitimacy and authority over the future of adominant constitutional power. As textual and interpretative strata,the constitution, this l’etat de droit, is subject to future reinterpreta-tion, and to the destabilization of the originary meaning of its sta-tus as a dominant interpretation. In other words, the text of theconstitution is subject to deconstruction.

Similar to his earlier writings on the deconstruction of texts, inthis later work Derrida suggests a double reading of the moment offounding and its dominant interpretation: the constitutional text.42

In Derrida’s words, the originary interpretation is ‘destined inadvance to produce, namely proper interpretative models to read inreturn, to give sense, necessity and above all legitimacy to the vio-lence that has produced, among others, the interpretative model inquestion, that is, the discourse of its self-legitimation.’43 I see inDerrida’s process of constitutional interpretation an intertextualcharacter. The constitutional text, the dominant interpretation, is inongoing dialogue with its future reinterpretations. It is always opento the future and to the possibility of change. On the one hand, theprocess of constitutional reinterpretation has a transformativepotential. Each instance of future reinterpretation is a possibility tochallenge and reinvent the norms of constitutional founding, toenrich them with the perspective of the other and the different. Theintertextual path of constitutional interpretation is a critical reflec-tive process of reinterpreting the past, an attempt to overcome theviolence of the founding moment. Through reinterpretation, more-over, the constitutional text can regain its legitimacy and authority.

The openness of constitutional text to future interrogation, todestabilization and reinterpretation, is also a hope to overcome theillegitimacy and illegality, the violence of the founding moment. Assome commentators argue, it is a hope for justice beyond force, itis a possibility for transcending violence in the future.44 Through

41 John McCormick, ‘Derrida on Law: Or, Poststructuralism Gets Serious’,

Political Theory 29/3 (2001) 395–423, p. 402.42 Simon Critchley, The Ethics of Deconstruction: Derrida and Levinas (Oxford:

Blackwell, 1992), p. 23.43 Derrida, ‘Force of Law’, p. 36.44 McCormick, op. cit., p. 399.

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ongoing acts of reinterpretation, the constitutional text undergoesconstant making and remaking, challenging the violence and illegit-imacy of dominant texts and interpretative meanings. In otherwords, it challenges the injustice of the constitutional past.Derrida’s modality of constitutional interpretation suggests an ethi-cal process of constitutional transformation, aiming at a future freeof violence and injustice.

Derrida maintains, for instance, that the fact that law is decon-structible, that is reinterpretable, is ‘a stroke of luck for politics, forall historical progress.’45 He opens the constitutional text to ongo-ing normative transformation through a critical dialogue betweenthe past and the future, a dialogic interchange between the varietyof meanings and languages of the other. Deconstruction thus pro-vides an intricate transformative dynamic between the constitu-tional past and its future reinterpretation in the history of thepolitical community.

Open-Ended InterpretationLooking toward the future and the other, the process of constitu-tional interpretation is always open-ended.46 The continuous open-ness of constitutional interpretation is best embodied in Derrida’stheorizing of legal judgment and its ‘undecidable’ character.

For Derrida, each instance of constitutional interpretation pre-sents a moment of judgment, a possibility of decision-making. Onthe one hand, Derrida asserts that without a judgment or decision,‘there would be neither responsibility nor ethics, neither rights norpolitics’.47 As part of the ongoing interpretative constitutional pro-cess, judgment interrupts and cuts through the continuity of thecourse of history. Each constitutional judgment must be excep-tional and new. It should not simply repeat and apply the rules,but invent and bring novelty in interpretation.48 In this sense,

45 Derrida, op. cit., p. 14.46 On the future-oriented character of Derrida’s judgment, see the analyses of

Nancy Fraser, ‘The Force of Law: Metaphysical or Political?’, Cardozo Law Review

13/4 (1991) 1325–1331, p. 1326; Drucilla Cornell, ‘Time, Deconstruction, and theChallenge to Legal Positivism: The Call for Judicial Responsibility’, Yale Journal ofLaw & the Humanities 11/1 (1990) 267–297, p. 268; Matthias Fritsch, ‘Derrida’s

Democracy to Come’, Constellations 9/4 (2002) 574–597.47 Jacques Derrida, ‘Deconstructions: The Im-possible’, in Sylvere Lotringer and

Sande Cohen (eds), French Theory in America (New York: Routledge, 2001), p. 27.48 Ibid., pp. 27–28.

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Derrida refers to constitutional judgment as a ‘fresh judgment’,49

asserting that in order to be just, judgment must be open to theother, to the different. This is because each case it is applied to isdifferent, requiring a completely unique interpretation.

Yet, in order to be free and responsible, constitutional interpreta-tion must go through ‘the ordeal of the undecidable’. For Derrida,constitutional interpretation goes through ongoing deliberations,through the impossibility of making a decision or through the ‘mad-ness’ of making an urgent decision.50 The undecidability of legaljudgment shows the impossibility of equating justice and law, justiceand constitutional text.51 The irreducibility and tension between jus-tice and law means that constitutional text and its interpretationscan only embody a hope for justice, a pursuit of difference and theother. In this sense Derrida likens constitutional interpretation to amoment of suspense, or as he calls it ‘this period of epoche ... whichis also the interval of spacing in which transformations, indeed ju-ridico-political revolutions take place.’52 In every reading of theconstitutional text that finds something new and different fromexisting canons and norms, Derrida sees an interpretative situationand a hope for justice.

In its openness to the future and to the possibility of justice, theDerridean process of constitutional interpretation is politicallytransformative and emancipatory.53 It means that the intertextualinterpretative practice is always open to new and different mean-ings, to the idea of justice as avenir, or as always ‘to-come’.54 Thepossibility for reinterpretation means an opening of the constitu-tional project to novel areas of justice, to alterity and differencethat develop historically, to all those meanings that have been

49 Derrida, ‘Force of Law’, p. 23.50 Ibid., p. 24.51 McCormick, op. cit., p. 403.52 Ibid., op. cit., p. 20.53 Ibid, p. 28. For such a reading of Derrida’s deconstructive approach as trans-

formative and emancipatory to politics and law, see Saul Newman, ‘Derrida’sDeconstruction of Authority’, Philosophy and Social Criticism 27/3 (2001), 1–20, pp.15–17; Simon Critchley, ‘Remarks on Derrida and Habermas’, Constellations 7/4

(2000), 455–465, pp. 456–457; Fritsch, op. cit., pp. 574–597; and Fraser, op. cit., p.1326.

54 Derrida, ‘Force of Law’, p. 27.

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marginalized and oppressed.55 Derrida argues for an ongoingemancipatory extension and reinvention of the normative frame-work of basic human rights in the Western constitutional discourse.For him, those progressive struggles ‘remain and will have to re-main in progress, everywhere in the world, to men and women.’56

The open constitutional process must further engage with new pro-blematizations of justice as the issues of abortion, euthanasia,problems of organ transplant, extra-uterine conception, bio-engi-neering, medical experimentation, the social treatment of AIDS, themacro- or micro-politics of drugs, issues of poverty and homeless-ness, and the treatment of animals, among others.

MODALITY OF INTERTEXTUAL TRANSFORMATION

Building on the understanding of the constitution as inter-text, Ianalyze in this section the modality of its intertextual transforma-tion. I show how Kristeva and Derrida propose two distinct strate-gies of intertextual constitutional transformation. While Kristevapromotes intertextuality by radically opposing and separating theideas of authority, domination and privilege in texts from those ofdialogue, openness and pluralism, Derrida ‘deconstructs’ dominantinterpretations and authoritative textual strata by ‘repetition’ thattakes the form of iterability, conservation and redemption. Becauseof these two very different strategies, I maintain that Kristeva andDerrida end up with two differing modalities of intertextual politicalchange.

Intertextual Processualism

I have described already how Kristeva’s concept of intertextuality canbe applied to the broader social and political textuality. In my view,Kristeva offers a distinct modality of intertextual transformation, onethat has a processual character with an open-ended trajectory. Forexample, Kristeva’s approach toward social textuality posits thattexts and society transform by moving forward not towards transcen-dence, ‘but rather toward harmony, all the while implying an idea of

55 Ibid., pp. 27–28.56 Ibid., pp. 28–29.

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rupture (of opposition and analogy) as a modality of transforma-tion.’57 Kristeva associates intertextuality with a ‘modality of trans-formation’ that aims at an ongoing and dynamic elaboration of newmeanings in texts and society. She proposes an intertextual process ofsocial transformation that is always open-ended and future-orientedwherein multiple meanings develop in an unpredictable and imperma-nent way. Kristeva uses the term ‘process’ to underline the path oftransformation as something ‘unsettled’ and ‘questionable’. As com-mentator Leon Roudiez explains, Kristeva’s use of the term processis associated with the ‘idea of a continued forward motion possiblyaccompanied by transformations.’58 However, such a social transfor-mation does not follow a historically linear or secure progressive tra-jectory. Let me explain.

Kristeva proposes intertextuality as a ‘revolutionary’ textualstrategy. The concept of intertextuality is always questioning andtesting of any definitions.59 As a revolutionary strategy, it aims atpolitical and social disruption. The intertextual change assumes adisruptive, or, in Kristeva’s terms, even transgressive path of con-stantly challenging and questioning any unitary, categorical andauthoritative meaning. It presupposes the acceptance of ‘anotherlaw’, ‘an other imperative’ – that of pluralism of meanings, of dia-logic openness and ongoing rediscovery.60 Thus, the idea of trans-gression does not allude to an anarchy of meanings in the sense ofa ‘freedom to say everything’, but rather it presupposes the accep-tance of the perspective of the other.61 In general, Kristeva rejectsthe negative connotation of anarchy with that of chaos or anarchy.Instead, for her, anarchy presents a ‘nonrepressed state of subjec-tivity’, a ‘permanent state of functioning’.62

In order to overcome the risk of unconditional destabilization,Kristeva insists on the need for a provisional form of authority, onethat is relational, flexible and dispersed. Searching for ‘a provisionaland stabilizing apparatus’, she acknowledges the role of the therapist,

57 Julia Kristeva, ‘Word, Dialogue, and Novel’, in Leon S. Roudiez (ed), op. cit.,

p. 89.58 Leon S. Roudiez: ‘Introduction’ in Roudiez, op. cit., p. 17 (my italics).59 Kristeva, op. cit., p. 81.60 Ibid., p. 71.61 Ibid., p. 71.62 Guberman, op. cit., p. 37.

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the educator, and of a certain familial authority in society.63

Kristeva’s intertextual mode of transformation thus connects theidea of social and political destabilization with the need to imposesome provisional and flexible forms of power and authority insociety.64 Yet in my view, the modality of Kristeva’s intertextualtransformation remains unconditionally open-ended and indetermi-nate. As such, it promotes an endlessly open-ended and dynamicprocess of transformation, one that is uncompromising in its effortsto destabilize and question any normative status quo.

Iterability in Interpretation

Like Kristeva, Derrida thinks of the moment of founding as aunique, novel and revolutionary moment. Each instance of consti-tutional interpretation is a radically transformative, deconstructivemoment that destabilizes the meaning of dominant interpretation.Constitutional reinterpretation always embraces alterity, the differ-ent other, and is oriented toward the future, toward the unknown.Derrida likens constitutional reinterpretation to a ‘moment of sus-pense, this period of epoche ... which is also the interval of spacingin which transformations, indeed juridico-political revolutions takeplace.’65 There is something of a revolutionary situation, Derridaasserts, in every reading that founds something new and is unread-able in regard to already existing canons and norms.66

In a way that is distinct from Kristeva’s revolutionary transforma-tive modality, however, Derrida proposes the idea of iterability thathas ‘the possibility of repetition at the heart of the originary.’67 ForDerrida, in addition to being open-ended, the process of constitu-tional interpretation is also reproductive, and therefore conservative.Judges apply previously established rules to create new law, simulta-neously conserving and destroying the law.68 Only through recourseto the past, through rejustification and reaffirmation of past interpre-tations and decisions, can constitutional judgment be new andfree.69 The position of law, or constitution-making, Derrida asserts,

63 Ibid., p. 37.64 Ibid., p. 37.65 Derrida, ‘Force of Law’, p. 20.66 Ibid., p. 37.67 Ibid., p. 38.68 McCormick, op. cit., p. 403.69 Derrida, op. cit., p. 23.

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‘is already iterability, a call for self-conserving repetition.’70 Becauseof its iterability, we can see how constitutional judgment can repeatitself. It is not only open-ended to the future, but it looks to the past,recalling the moment of founding and dominant interpretation.

Derridean processes of constitutional interpretation can thus beunderstood as ongoing repetitions of the founding political and legaldiscourse, and as a series of continuous and unknown reinterpreta-tions that will take place in the future.71 I interpret the idea of iter-ability as the possibility of the constitutional project to connectingits constitutional future with the past, with its founding interpreta-tive and performative experience. Iterability is a procedural meansto bridge the political community’s past with the future.

On the one hand, the idea of iterability allows for reappearanceof past interpretations, of the violence of originary moment. Yet, wecan also see an attempt to redeem the past from its violence andinjustice. As one commentator remarks.

‘this process of invention and restatement of legal norms also entails a judge’s‘‘responsibility toward memory’’. This responsibility is not to an accurate repeti-

tion through the recollection of legal norms, but to a refutation of the belief thatwhat has been can ever be conflated with justice.72

Thus, in addition to being open-ended, the process of intertextu-al constitutional interpretation can also be seen as containing anecessary moment of redemption. It is possible through reinterpre-tation to recover from the violent and unjust memory of the past inpursuit of justice in the future.

We see how Derrida proposes an intricate new ethics of intertextualconstitutional interpretation. While the process of constitutional inter-pretation is continuously open toward the future, toward justice as al-terity, it retains its legitimacy from recalling the past, by beingresponsible to the memory of the past. I interpret the Derridean inter-textual interpretative process of connecting the past and the future asan ongoing ethical process. It embodies an attempt to liberate the fu-ture of political community from the injustice and violence of the past,embodied in the imposition of norms and arbitrary interpretations.

Finally, because of its iterability, we can see how the Derrideanconstitutional process is neither a radical, nihilistic replacement of

70 Ibid., p. 38.71 Newman, op. cit., pp. 15–16.72 Cornell, op. cit., p. 268.

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one constitutional text with another, nor a mere destruction of theconstitution as a text.73 In this way, Derrida diminishes any sharptextual distinctions between the original constitutional text and itsfuture reinterpretations. He concludes that this reduced distinctionbetween foundation and conservation is ‘deconstruction at work’.74

The constitution is an unfolding and transformable textual andinterpretative strata, an ongoing dialogue between the moment offounding and its future reinterpretations. In its distinct intertextualinterpretative process, the constitutional text is open to emancipa-tory egalitarian transformation.

We have seen that Kristeva and Derrida propose two distinctmodalities of intertextual political transformation. While Kristeva’sidea of change is exclusively open-ended and unconditionally inter-rogates any attempts at fixing definitions and stabilizing meanings,Derrida’s constitutional modality intricately combines the perspec-tives of the past and the future, the responsibility towards memorywith the freedom and alterity of the future. Yet, these two distinctconceptualizations of intertextual transformation are not mutuallyexclusive but offer different strategies of emancipatory intertextualconstitutional transformation.

THE RISK OF INDETERMINACY

With their openness to the other and to the future, Kristeva andDerrida’s intertextual transformative theories may be burdened bya risk of undesirable indeterminacy. As one analyst maintains,Kristeva’s open-ended approach has the tendency, to ‘valorizetransgression and innovation per se irrespective of its content anddirection.’75 On the other hand, Derrida’s perpetual openness ofreinterpretation may dissolve in an infinite regression between thepast and the future. Moreover, an unlimited destabilization of

73 See Newman, op. cit., p. 5. Also, Nancy Fraser argues against interpretations of

Derrida’s deconstruction as entailing nihilism. See Nancy Fraser, op. cit., p. 1326.See also Simon Critchley, op. cit., p. 455.

74 Derrida, op. cit., p. 41.75 Nancy Fraser, Justice Interruptus: Critical Reflections on the ‘Postsocialist’

Condition (New York: Routledge, 1997), p. 162. Fraser argues that such a trans-

gressive attitude is particularly problematic in feminist politics ‘which requires ethicaldistinctions between oppressive and emancipatory social norms.’ (p. 162).

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meanings may open the way for the imposition of arbitrarymeanings of justice by those with power in society.76

It can be argued that as non-hierarchical textual strata, theintertextual constitution runs the risk of endless normative conflictsbetween various positions and meanings of justice in a pluralistsociety. By blurring the clear distinction between the moment offounding and future constitutional interpretations, the intertextualconstitutional project is threatened by unconditionally merging thelevel of higher or official norms of justice and other non-formalinterpretations of justice in society. In this way, intertextuality may‘sink’ constitutional topics into ordinary politics and policy-makingand thus conflate this normativity with society’s common norms ofjustice and everyday policy issues about the good. The completefusion of constitutional normativity with ordinary political lifewould allow those with material advantages and power to imposeeasily their interpretations of justice on the rest of the society, thussuppressing the viewpoints of the weaker and marginalized groups.

In addition, the notion of an infinite deconstruction of meaningsimplies that there are no normative grounds to distinguish betweengood or bad interpretations of justice, that there are no criteria forjustifying a preference for one interpretation over another. With itsopenness towards new and diverse interpretations of the good, theintertextual constitution may be seen as risking the promotion ofarbitrary norms of justice, and possibly allowing for regressive andundesirable meanings of justice to enter the constitutional space.

The question then arises as to how to protect the intertextualinterpretative process from undesirable and regressive interpreta-tions of good. Another critical question for the intertextual consti-tutional project is how to ensure future normative changes withoutjeopardizing the progressive interpretative achievements of the past.

In my view, any constitutional interpretations that violate theequality and freedom of citizens should be incompatible with theintertextual process of constitutional interpretation. By violation ofconditions of equality, I understand constitutional interpretationsthat promote relationships of privilege, disadvantage, and oppres-sion among members of society. For example, constitutional

76 Michel Rosenfeld, Just Interpretations: Law between Ethics and Politics(Berkeley: University of California Press, 1998). For instance, Rosenfeld remarks

that indeterminacy can also lead to the imposition of arbitrary meanings by thosewith greatest power or cunning in society. (p. 19).

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interpretations that promote roles of domination, subordination,and suppression are forms of injustice. Among those are racist,sexist, ageist, homophobic ideas and texts, in addition to all thosemeanings that promote inequality and oppression among membersof society. Regressive meanings violate the equality and freedom ofall citizens, harboring relationships of privilege and domination.Such regressive meanings are incompatible, in my view, with the‘ethics’ of the intertextual constitutional process as discussed here.

Promoting equality and freedom in constitutional interpretationrequires a new kind of intertextual normativity. It demands that inaddition to being open-ended and pluralist, the intertextual consti-tutional process promotes only ‘just’ meanings that enhance theconditions of equality and freedom among all members of society.On this reading, all regressive meanings should be considered asunjust, or ‘anti-intertextual’.

For example, I consider a constitutional ban on gay marriage tobe a form of discrimination, a regressive interpretation of themeaning of the institution of marriage. A constitutional text thatdiscriminates among citizens based on sexual orientation inhibitsgay citizens’ equality and freedom in society. Any textual interpre-tation that bans gay marriage imposes social exclusion, placing gaypeople in a position of subordination and disadvantage in compari-son to heterosexuals. As a result, it creates new forms of socialhierarchies and discriminatory relationships. This form of constitu-tional interpretation violates the equality and freedom of all, and istherefore unjust. The privileging of heterosexual marriage overother forms of marriage violates the fundamental ethical precept ofthe intertextual constitutional process – the responsibility to beopen toward the voices and perspective of the other. The ethicalirresponsibility of discriminatory constitutional interpretation isalso expressed through its disregard of the past, specifically its dis-regard of the possibility of rectifying past injustices. Therefore, aconstitutional ban on gay marriage is an example of unjust andregressive normativity that is incompatible with the ethico-emanci-patory character of the intertextual constitutional process.

Nor should the process of intertextual constitutional interpreta-tion be associated with the idea of ‘anything goes’. Constitutionalinterpretation is incompatible with meanings built on false notionsof equality and freedom, which protect relationships of dominationand oppression. For instance, not all polygamy as practised today

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in the United States is built on the equality and free participationof all the members of the polygamous union. Many practices inpolygamous Mormon communities are built on the strictlyauthoritarian and oppressive relationships of domination on thepart of a husband towards his subordinate wives. Such relation-ships are forms of injustice for they may not allow for all membersto freely participate, to make and construct co-equally their per-sonal lives and relationships. Indeed, in most cases, polygamousrelationships of the religious type promote forms of dominationand subordination, of inequality and lack of free will, and as suchare incompatible with intertextual constitutional normativity. Anyconstitutional interpretation that justifies and promotes these socialpractices defies, in my view, the conditions for equality and free-dom for all members of society and is thus undesirable and unjust.

Finally, I want to stress that with its potential to change, the in-tertextual constitution presents a better alternative to the conven-tional constitutional textuality. The intertextual constitutionalmodel is not only open to future revision and innovation but itchallenges and liberates public texts and interpretations from anymeanings of inequality, intolerance and privilege. By embracing theideals of dialogue, pluralism and change, the concept of the inter-textual constitution effectively provides for the qualitative socialtransformation and democratization of modern liberal life.

Department of Political ScienceThe New School for Social Research79 Fifth AvenueNew York CityNY, 10003USAE-mail: Vargom01@newschool.edu, VargovaM@aol.com

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