Someone on an email list in which I participate asked me about my views on the relationship between Biblical and constitutional interpretation. Here are my current thoughts:
Excellent questions, and I appreciate the link between Biblical and Constitutional “hermeneutics.” I remember in my first year of law school thinking how similar the fields of law and theology are in this regard — both are concerned with interpreting and applying authoritative texts. And so now you’ve gotten me rolling instead of finishing the final exam grading I’m supposed to be doing right now! 🙂
I think I’d consider myself closer to the “middle road” school of constitutional interpretation promoted by folks like Cass Sunstein (see his book “Radicals in Robes”), though perhaps I’d lean more towards originalism than Sunstein. In this view, original intent (or more accurately, historical context) is important, but not necessarily decisive. Although the Constitution is a document with a historical context that means something, it isn’t an ordinary statute. A Constitution, a basic governing document, not easily amended, has to have some flexibility, or else we’ll find ourselves with a legal regime suitable only for the 18th Century.
Our little discussion about prayer and God-talk in school settings is an interesting illustration of this, which no one picked up on (yet): what does it mean to apply the first amendment to our public school system today, which is mandatory (with opt-outs essentially for the wealthy) and funded through tax dollars, when (a) there was no such mandatory “public” school system when the first amendment was drafted; and (b) the tax system and welfare state were radically different in the 18th Century?
In addition to this problem of application, “originalism” poses another hermeneutical problem, namely, who are the “founders” whose intent we are supposed to be divining? Were the “founders” the signers of the Declaration of Independence? The members of the Constitutional Convention? The ratifiers of the Consitution (this is the option Scalia chooses)? What about the Pilgrims who founded the first colonies? What about middle-class merchants and yoeman farmers? What about disenfranchised women and African slaves and freedmen? It seems problematic to me to suggest that the original intent of a very small, elite group of wealthy white slave-owners should always prove conclusive in every contemporary constitutional issue.
On the other hand, I don’t think the problems I’ve outlined above mean that we can or should simply trash constitutional history and invent “penumbras” and “emanations” that capture whatever new “rights” are the flavor of the day. If the text is to have any integrity at all, and if it is to retain legitimacy as a having the force of law, we have to understand it in its original context, and apply it to contemporary problems in ways that are faithful to that context. This doesn’t mean a slavish devotion to the intent of the ratifiers, but it does mean understanding the events, concerns and ideas that lie behind the words of the text.
Another important piece of the process, which Scalia does recognize, is the role of the interpretive tradition that has arisen since the text was first encoded. In legal terms, this is the role of stare decisis. The interpretive tradition helps us understand how others have received the text and applied it to their own contemporary situation. This informs our views, and indeed is binding unless there are compelling reasons to reevaluate the the precedents. (Sunsteen, BTW, things there are no compelling reasons to reevaluate Roe v. Wade and its progeny, but I think he is wrong about that).
So, to use some phraseology that’s popular these days, the art of constitutional law represents a dialogue between the text in its historical context, the interpretive tradition, and the contemporary culture. I think it’s a mistake to omit either part of the dialogue.
I guess my current views on Biblical hermeneutics are similar. The first step is to understand the text in its historical context. The text is authoritative (and only the text is authoritative), but I don’t think it’s static. There is a long interpretive tradition that dialogues with the text as the Holy Spirit has spoken in and through the church through the ages. We receive that tradition with reverence and do not deviate from it lightly. And yet the Holy Spirit continues to speak in and through the Church, and so our understanding of the text and how it applies to our contemporary setting remains in process. Unlike constitutional interpretation, however, we understand that process as having a definite telos, which is the culmination of the Kingdom of God. So there is another part to the dialogue: the text in its historical context, the interpretive tradition, the contemporary setting, and the eschatological telos of the Kingdom of God.
