Re: question

Excellent questions, Janice, 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 place more emphasis on
original context 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. As a Constitution, which is a
basic governing document, not easily amended, it 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? (As I've
previewed above, at the end of the day, I don't think any of these things
suggest that today's "strict separationism" is appropriate, but that's
another discussion).

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 any 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.

On 6/2/06, Janice Matchett <janmatch@earthlink.net> wrote:
>
>
>
> At 11:29 PM 6/1/2006, David Opderbeck wrote:
>
>
> While I'm not really a constitutional originalist (as is, for example,
Justice Scalia), I do think the starting point for an constitutional
analysis has to be the historical framework of the text -- very much like an
exercise in Biblical exegesis. If a contemporary application of the text is
utterly foreign to its historic framework, something probably is wrong. In
my view, that's the case with how the establishment clause has been
interpreted.
>
>
> @ If you're not a constitutional originalist (like me), you sure sound
like one. For instance:
>
> Excerpt of Scalia's remarks 3/14/05:
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> Originalism: then and now
>
> "...I am one of a small number of judges, small number of anybody ­
judges, professors, lawyers ­ who are known as originalists. Our manner of
interpreting the Constitution is to begin with the text, and to give that
text the meaning that it bore when it was adopted by the people. I'm not a
"strict constructionist," despite the introduction. I don't like the term
"strict construction." I do not think the Constitution, or any text should
be interpreted either strictly or sloppily; it should be interpreted
reasonably. Many of my interpretations do not deserve the description
"strict." I do believe, however, that you give the text the meaning it had
when it was adopted.
>
> This is such a minority position in modern academia and in modern legal
circles that on occasion I'm asked when I've given a talk like this a
question from the back of the room ­ "Justice Scalia, when did you first
become an originalist?" ­ as though it is some kind of weird affliction that
seizes some people ­ "When did you first start eating human flesh?"
>
> Although it is a minority view now, the reality is that, not very long
ago, originalism was orthodoxy. Everybody, at least purported to be an
originalist. If you go back and read the commentaries on the Constitution by
Joseph Story, he didn't think the Constitution evolved or changed. He said
it means and will always mean what it meant when it was adopted.
>
> Or consider the opinions of John Marshall in the Federal Bank case, where
he says, we must not, we must always remember it is a constitution we are
expounding. And since it's a constitution, he says, you have to give its
provisions expansive meaning so that they will accommodate events that you
do not know of which will happen in the future.
>
> Well, if it is a constitution that changes, you wouldn't have to give it
an expansive meaning. You can give it whatever meaning you want and, when
future necessity arises, you simply change the meaning. But anyway, that is
no longer the orthodoxy.
>
> Oh, one other example about how not just the judges and scholars believed
in originalism, but even the American people. Consider the 19th Amendment,
which is the amendment that gave women the vote. It was adopted by the
American people in 1920. Why did we adopt a constitutional amendment for
that purpose? The Equal Protection Clause existed in 1920; it was adopted
right after the Civil War. And you know that if the issue of the franchise
for women came up today, we would not have to have a constitutional
amendment. Someone would come to the Supreme Court and say, "Your Honors, in
a democracy, what could be a greater denial of equal protection than denial
of the franchise?" And the Court would say, "Yes! Even though it never meant
it before, the Equal Protection Clause means that women have to have the
vote." But that's not how the American people thought in 1920. In 1920, they
looked at the Equal Protection Clause and said, "What does it mean?" Well,
it clearly doesn't mean that you can't discriminate in the franchise ­ not
only on the basis of sex, but on the basis of property ownership, on the
basis of literacy. None of that is unconstitutional. And therefore, since it
wasn't unconstitutional, and we wanted it to be, we did things the good old
fashioned way and adopted an amendment.
>
> Now, in asserting that originalism used to be orthodoxy, I do not mean to
imply that judges did not distort the Constitution now and then, of course
they did. We had willful judges then, and we will have willful judges until
the end of time. But the difference is that prior to the last 50 years or
so, prior to the advent of the "Living Constitution," judges did their
distortions the good old fashioned way, the honest way ­ they lied about it.
They said the Constitution means such and such, when it never meant such and
such.
>
> It's a big difference that you now no longer have to lie about it, because
we are in the era of the evolving Constitution. And the judge can simply
say, "Oh yes, the Constitution didn't used to mean that, but it does now."
..." [snip] ~ Remarks by Justice Antonin Scalia at The Woodrow Wilson
International Center for Scholars in Washington, D.C, March 14, 2005. His
speech was entitled: "Constitutional interpretation" Read it in its
entirety here: http://www.joink.com/homes/users/ninoville/ww3-14-05.asp
>
> As far as I'm concerned, both the church and the legal profession leave
MUCH to be desired today because each has (for the most part) exchanged
objective, sound hermeneutics for the unsound (subjective), confused
thinking of postmoderns .
>
> I think Justice Scalia would agree with what Dr John Warwick Montgomery
says about the legal profession in this essay, entitled: Hermeneutics,
Legal and Theological: An Exercise in Integration
http://www.jwm.christendom.co.uk/unpublished_essay.html
>
> As I said, you sound to me as if you are an originalist based on what I've
seen you write, so if you have time, would you explain in what way you would
disagree with these two men?
>
> ~ Janice
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Received on Fri Jun 2 10:10:58 2006