Em artigo publicado no NY Times, Stanley Fish elabora um artigo citando o professor de direito de Yale, Akhil Reed Amar e sua nova obra, chamada: “America’s Unwritten Constitution”. Nesta obra, Amar afirma que: “A Constituição escrita não pode funcionar como pretendido, sem algo fora dela – Constituição não escrita dos Estados Unidos – esta serve para preencher suas lacunas e estabilizar o seu significado”.
Nesse sentido, Amar afirma que: “A Constituição não escrita … ajuda a dar sentido ao texto,” e esse sentido não estaria disponível se um intérprete fosse confinado a um literalismo da lei. Além disso, professor da Unviersidade de Yale, explica que os princípios não escritos que presidem a interpretação constitucional não devem ser pensados como itens de uma lista. Se existe uma lista, é aquela que mantém-se expandindo em face de novos fenômenos e situações novas, sendo a maioria também, regras e princípios não escritos.
Eis o artigo integral em inglês:
Akhil Reed Amar, a professor of law at Yale, begins his new book, “America’s Unwritten Constitution,” by calling our attention to two places in Article 1, Section 3 of the Constitution. The first declares that the “Vice President of the United States shall be the President of the Senate.” The second reads, “When the President of the United States is tried, the Chief Justice will preside.”
Para notas comparativas entre o CPC/1973 e o projeto do novo CPC, veja o livro Código de Processo Civil Comentado – com remissões e notas comparativas ao projeto do novo CPC.
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It doesn’t say why. But the reason, says Amar, emerges “upon a moment’s reflection.” Even though “these words say nothing explicit about the vice president … it quickly dawns on us that the central purpose of the passage was to oust the vice president from the chair … in presidential impeachment trials”; for were he not so ousted, “the vice president would have an intolerable conflict of interest” given that in the event of a conviction, he would ascend to the presidency.
The example illustrates Amar’s main thesis: “The written Constitution cannot work as intended without something outside of it — America’s unwritten Constitution — to fill its gaps and stabilize its meaning.” The meaning of the “inside” — the text’s literal words—cannot be specified independently of the “outside” — the set of assumptions and values that hangs over the enterprise and gives the deeds and words that occur within it shape and point. The text may not enumerate those assumptions and values, but, explains Amar, they “go without saying,” and because they go without saying the words that are said receive their meaning from them. “The unwritten Constitution … helps make sense of the text,” a sense that would not be available if an interpreter were confined to a “clause-bound literalism.”
In fact, the case is even stronger than that, Amar tells us. A “clause-bound literalism,” a reliance on the textually explicit, rather than delivering a coherent document would yield only a series of discrete observations. Amar’s authority for this assertion is none other than Chief Justice John Marshall, who acknowledged in McCulloch v. Maryland (1819) that there was “no express proviso” for the conclusion he reached, but argued that it was “sustained on a principle which so entirely pervades the constitution, is so intermixed with the materials which compose it, so interwoven with its web, so blended with its texture, as to be incapable of being separated from it, without rending it into shreds.” Marshall, explains Amar, “insisted on reading between the lines to vindicate the document’s spirit, rather than focusing solely on the letter” in a way that would fragment and atomize the document.
But couldn’t the letter be enlarged so that the unwritten principle became a written one? Couldn’t the proviso be made “express”? Couldn’t the spirit be made explicit? No, says Amar. Consider the unwritten principle that “no man may be a judge in his own case.” You might think that a number of “interpretive puzzles would have happily disappeared had the framers simply been more explicit by inserting it into the written Constitution.” But “think again,” Amar advises. The scope and meaning of the principle would still have to be specified, and that could not be done without reference to some other unwritten principle in the light of which the meaning of “judge” and “his own case” could be stabilized. And if you inserted that second previously unwritten principle into the text, it itself would have to be stabilized by another, and on and on and on. No matter how many words you added, there would still be “left open a range of questions whose answers could not simply be deduced from the words themselves.”
It is not, says Amar, a matter of “poor draftsmanship” or of draftsmanship at all. The unwritten principles that preside over constitutional interpretation should not be thought of as items in a list; they are, rather, part and parcel of a general project — the implementation of American-style democracy — that is not defined and limited by the implications and considerations it gives rise to.
If there is a list, it is one that keeps expanding in the face of new phenomena and new fact situations, in response to which the project at once reaffirms itself and adds to its storehouse of rules and principles, most of them unwritten. The whole is always more than the sum of its parts no matter how many of its parts have been enumerated; and any effort to enumerate them will always be outrun by the generative power of the whole and will quickly turn a “terse text” (Amar’s phrase) like the Constitution into a monster that, in Chief Justice Marshall’s words, has “the prolixity of a legal code.” Explicitness, it turns out, is not a possible human achievement, which is no big deal because communication and understanding do not require it.
What they do require is a grasp of the enterprise within which a particular utterance or writing is encountered. Here is an example (mine, not Amar’s) from the enterprise called Higher Education. It may say in an online schedule of courses or on the bulletin board of a classroom building, “Classes begin on the hour.” What could be simpler? But the simplicity and easy understanding will be experienced only by those who know, and know without reflection, what a class is (know that it is not a socio-economic population), know why classes are held (what is the end point to which they contribute) and know what counts as an hour (no one, except in rare and special circumstances, will think that one of the hours being referred to is 1:00-2:00 a.m.).
It might seem that going to college or teaching in one is an activity less complex than the activity of engaging in constitutional interpretation. But neither activity can be engaged in by someone who had not internalized a vast array of assumptions and presuppositions, each of which is an ingredient of an understanding that can not be gained by rehearsing or cataloging them. Whether negotiating the course schedule or the Constitution, “Quicksand awaits all who insist on reading every clause of the document literally.”
What are the implications of Amar’s argument? Well, one implication, which he draws out, is that textualism or clause-bound literalism of the kind championed by Justice Antonin Scalia is a nonstarter. Not going outside the text leaves the text a document profoundly unresponsive to our goals and aspirations because our goals and aspirations — the huge number of unwritten ones — have been edited out. Another implication, one that Amar does not draw out because he is not performing as a philosopher of language, is that we have unwritten constitutions in every area of our discursive life. Whether it is the law, or higher education, or politics, or shop talk, or domestic interactions, utterances and writings are meaningful only against the background of a set of assumptions they do not contain. Textualism is not only a nonstarter in constitutional interpretation; it is a nonstarter everywhere.
When your spouse or partner says, “We don’t go out anymore,” what does he or she mean? Well, it depends on within which unwritten constitution — which understanding of the protocols and hazards of the domestic project — you are hearing the words. Parsing them lexically and grammatically isn’t going to help you. What might help — or at least put you in the ballpark — is a sensitivity to everything that has happened in the course of a continuing relationship. The last thing you want to do in a situation like this is be a clause-bound literalist and start researching the number of days the two of you have gone out. That’s not what is at stake and you will have a chance of knowing what is at stake only if, as you listen to the words, you are hearkening to the unwritten constitution of your life together.
fonte: NY Times, por Stanley Fish.