The “Unwritten Constitution” and Biblical Interpretation

Debates over constitutional interpretation have much to teach us, I believe, about ways of reading the Bible. Perhaps more so than the average religious person, lawyers and judges are particularly conscious that they are choosing among different interpretive methods whenever they read and apply a text, and they’ve developed a sophisticated language to discuss this.

I don’t know whether this was always the case, but the adherents of “plain meaning” and “original intent” in the legal sphere frequently share the same conservative politics as Biblical literalists, while political progressives are more likely to see both legal and sacred texts as dynamic, ambiguous, and responsive to changing needs. In both cases, I suspect the deciding factor is whether we see our ancestors as more likely to be right than ourselves. Is the moral awareness of humankind progressing, or declining–and can we be trusted to know the difference?

As for my own personal view, it’s complicated. Some things are better than they were 200 or 2,000 years ago (democracy, the rights of women and minorities, freedom of religion, modern medicine), some are worse (pollution, nuclear weapons, 24-hour adult video channels); thus it has always been. But since we’re the ones who have to live with the consequences–not our ancestors, and not the authorities who interpret them for us–I think we should get the final vote on what a text means.

In the latest issue of Harvard Magazine, BusinessWeek editor Paul M. Barrett reviews legal superstar Laurence H. Tribe’s new book, The Invisible Constitution. The framework he outlines below may help clarify similar debates over the Bible (emphasis added):

Tribe argues persuasively that the most conservative jurists on the closely divided Supreme Court—chiefly Antonin Scalia, LL.B. ’60, and Clarence Thomas—get it wrong when it comes to deciphering our foundational legal document. The originalists, as they are known, contend that judges can look only to the literal words of the Constitution and the “original” understanding of those words held by the men who wrote and ratified them. That’s why the conservatives find it laughable that anyone could ground in the Constitution a woman’s right to choose to seek an abortion. The Constitution doesn’t mention abortion. The Founding Fathers would never have countenanced the act. Case closed.

Not so fast, Tribe says. Jurists of all stripes derive their interpretive principles from sources outside the text of the Constitution, and many of these principles cannot even be traced directly to the document’s words. My favorite example of this seemingly self-evident but often-obfuscated observation is the basis of originalism itself. The Constitution nowhere instructs its inheritors to interpret its opaque terminology (“equal protection,” “due process,” “cruel and unusual punishments”) according to the original understanding of its drafters. The Constitution doesn’t offer guidance on whether to read those terms as static or evolving. There’s an argument to be made that the Founders’ intent deserves special deference, or maybe even something approaching exclusive deference. But such ideas are drawn from someone’s version of what Tribe calls the invisible Constitution: the unwritten premises and intuitions and experiences that have accumulated over more than two centuries of law and politics in America.

Tribe’s liberal version of the invisible Constitution is no secret, and he does not elaborate much on the substance of his views in this book. He believes that judges—whether they lean left or right—inevitably champion the values they perceive as underlying or animating the ambiguous admonitions and protections outlined in the Constitution. In articulating those values, judges give meaning to a phrase like “equal protection.” For him those words, applied to questions of racial relations, can be used not only to strike down intentional segregation but also to uphold race-conscious policies (“affirmative action”) that seek to remedy the lingering injustices of slavery and Jim Crow. For Justice Scalia, equal protection suggests that race can never be taken into account in any way in forming public policies. That’s a legitimate argument. Tribe’s point here is only that it can’t be settled by simplistic appeals to literalism or the parlor game of WWJMD (What Would James Madison Do?).

To use a favorite phrase of postmodernists, any text always already contains “unwritten premises and intuitions and experiences” without which we would be unable to relate it to the rest of the world. Naturally, those unwritten addenda can be elaborated implausibly or in bad faith, and as Barrett says, they can be turned to liberal or conservative ends. But if we don’t admit that they exist, we’re claiming an illusory objectivity for our preferred viewpoint.

I’m planning a post soon about whether the Bible itself gives us any guidance about preferred interpretive methods. For now, I’ll leave you with these provocative questions (and if you’re very good, one of these days I’ll turn comments back on): Does the Bible ever tell us to believe something because it’s “in the Bible”? What other reasons for belief are urged upon us? Does the Bible know it’s the Bible?