Sola Scriptura and the Constitution
Conservatives who advocate originalism or textualism when in comes to interpreting the Constitution are sometimes accused of advocating a “sola scriptura” view of the Constitution. Since such charges are typically made by Catholics to Catholics, the allegation has a certain sting to it, as if holding a particular theory of constitutional interpretation someone made one a bad Catholic.
Yet there needn’t be anything inconsistent about interpreting the Constitution in one way and the Bible in another. The Bible is the inspired Word of God, given to us for the salvation of souls; the Constitution is a legal document. What’s sauce for the goose ain’t necessarily sauce for the gander in such a context.
In any event, it’s not clear to me exactly what it would mean to have a sola scriptura view of the Constitution (which for sake of flourish I shall call the sola constitutionola view), or what is supposed to be objectionable about it. Presumably the idea is that sola constitutionola is to the Constitution what sola scriptura is to the Bible. Okay, so what’s sola scriptura? According to the Missouri Synod, sola scriptura is the belief that:
The Bible is God’s inerrant and infallible Word, in which He reveals His Law and His Gospel of salvation in Jesus Christ. It is the sole rule and norm for Christian doctrine.
By parity of meaning, then, sola constitutionola would be the view that the Constitution is inerrant and infallible, and that it is the sole rule and norm for legal doctrine.
If this is what sola constitutionola means, then no originalist believes in it and it is silly to suggest otherwise. No one says that the Constitution is inerrant and infallible; nor do originalists think that the Constitution is the only legal authority. They are perfectly willing to recognize other sources of law, such as state and federal law, treaties, etc.
What view, then is sola constitutionola supposed to mimic? Is it the view that the meaning of the Scriptures does not change over time? If so, then I fail to see what is objectionable even from a Catholic perspective.
Originalism is the view that the Constitution ought to be interpreted according to its original public meaning, i.e., the way the text would have been understood at the time of ratification. So far as I know, no Protestant believes something analogous about Scripture. All Christians believe, for example, that many passages in the Old Testament refer to Christ, yet pretty clearly they would not have been understood by the general public to refer to him when originally written hundreds of years before his birth.
The Constitution is a public document ratified by a large number of people and subject to much debate before hand – that it could have a secret meaning is unthinkable. The Scriptures, by contrast, are inspired by God and everyone accepts that they contain many mysteries. The same goes for the view that Scriptures are to be interpreted according to their plain meaning. I highly doubt that the Constitution has a spiritual sense.
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BA: As I mentioned in my post, if I were ever to be a constitutionalist, I would be an originalist. So, I agree with your post until the very last paragraph. Let me be clear: I have nothing nasty to say about originalist hermenuetics.
I do however, doubt there ever being a text that one could use such a rigorous hermeneutic on with anything approaching certainty. In many ways, people who dispute originalism are orginalists themselves because they are simply saying that the original intent isn’t worth a damn. So, in one (very serious) way originalism is inescapable if one decides to consider the text important to begin with.
My problem, of course, is that I don’t find the text important to begin with. I have no idea what to do with it in any serious way. Not to beat a dead horse, but, if I did, I might end up on your team. That brings me to my problem with your post: the last paragraph. You wrote:
“The Constitution is a public document ratified by a large number of people and subject to much debate before hand – that it could have a secret meaning is unthinkable. The Scriptures, by contrast, are inspired by God and everyone accepts that they contain many mysteries. The same goes for the view that Scriptures are to be interpreted according to their plain meaning. I highly doubt that the Constitution has a spiritual sense.”
Intentions are about as secret as things can get, original intentions are even more mysterious. Distilling that from a plurality makes for an even harder task. But, all that aside, the prose of the constitution is read with reverence by many—and for good reason, if they find it to be that important—and this makes the constitution, and the corresponding moral notion of constitutionality, dangerously close to scripture and spirituality.
So, I do not dispute the defense of original interpretation, although I find it altogether impossible in one sense and unavoidable in another sense. But I do think that if we take the constitution as a text that requires these interpretations that yield degrees of good and bad (constitutional and unconstitutional), then, we cannot say that their is nothing similar between the constitution and any other text that yield similar results.
The problem is that our society is grossly ignorant of Aristotle’s (and Jefferson’s) teaching that the purpose of a constitution is to prevent corruption in the governrment. If the purpose of the Constitution is to have a binding text by which the government must abide, then the idea that any branch of the government can regulate said document undermines it.
Your invocation of such a definition of sola scriptura in no way negates the argument, which is an argument of comparison. Unlike Islam and certain aspects of Protestantism, Catholicism is not a religion of the book. We believe in the single sacred deposit of faith, which includes both scripture and tradition. Read Dei Verbum — the OT in particular is inspired not because everything it says is true, but because it sets out salvation history in a way that is free from error, and leads the way to Christ.
So for Catholics: (i) scripture itself must be read in a dynamic manner; (ii) the Holy Spirit also guides the Church through sacred tradition. That is also dynamic. And sometimes that takes a long time to figure out — look how long it took to get an unequivocal condemnation of slavery, for example. A biblical literalist can prove whatever he or she wants by quoting the required passage out of context.
But American “orinialists” don’t like this way of thinking. They don’t like the notion of a natural law, and of the positive law as doing its best to accord to the natural law, sometimes making mistakes along the way. They don’t like custom-based law and tradition. Instead, by appealing to the original meaning of the text, the follow the lead of the American fundamentalist Protestants.
This is the wrong argument on so many levels. People like Scalia make the fundamental mistake of opposing Roe v. Wade, for instance, because such a “right” was not in the minds of those who wrote the document. Sorry, but Roe is bad law because it directly violates a core tenet of the natural law. What if the founders had supported abortion? Would that make it better? For the Scalias of the world, it would.
Take gun control. I’m really not that interested in whether or not a bunch of wealthy 18th century Americans thought that the right to own weapons was an individual one, or one mediated through a militia. All that I care about is that today, in the circumstances of our contemporary society, the incredible carnage brought about by the widespread availability of fireams tells me that the common good is best served by serious gun control. If you disagree, come up with a natural law argument, not one based on what people thought in times past.
At the end of the day, law is an ordinance of reason for the common good brought about by those with care for the community. The common good of 2009 is not necessarily the common good of 1789. To say otherwise might violate right reason. Which is exactly the problem with sola scriptura…
MM: Scalia most certainly isn’t an originalist. Not in any serious way. Not in the way BA argues here. I would say your argument is much more intuitively originalist because the origins of beauty and truth are older than the origins of the constitution. And, if the writers shared this sensibility of the eternal truths (and I think they did), then, your point on Roe would be their point. Scalia and other so-called “originalists” get this quite wrong.
But American “orinialists” don’t like this way of thinking. They don’t like the notion of a natural law, and of the positive law as doing its best to accord to the natural law, sometimes making mistakes along the way. They don’t like custom-based law and tradition. Instead, by appealing to the original meaning of the text, the follow the lead of the American fundamentalist Protestants.
Where do you get off purporting to “know” what whole diverse groups of people “think” a certain way? Your comment is the very definition of ignorance.
Take gun control. I’m really not that interested in whether or not a bunch of wealthy 18th century Americans thought that the right to own weapons was an individual one, or one mediated through a militia. All that I care about is that today, in the circumstances of our contemporary society, the incredible carnage brought about by the widespread availability of fireams tells me that the common good is best served by serious gun control.
Again with the ignorance. You just blasted people for ignoring custom based law, yet you bluntly say you have no need and don’t care about one of the customary laws of this country, while backing it up with nothing but conjecture and opinion.
The common good of 2009 is not necessarily the common good of 1789. To say otherwise might violate right reason.
The common good does not change. People’s viewpoints on it and the circumstances and ways they try to accomplish it do.
Unlike Islam and certain aspects of Protestantism, Catholicism is not a religion of the book.
True enough. But what does this have to do with matters of constitutional interpretation?
The common good of 2009 is not necessarily the common good of 1789.
True, however, one must keep in mind here what St. Thomas says in Summa I-II Q. 97 art. 2. For courts to simply ignore constitutional provisions because they (even rightly) don’t agree with the content of those provisions is profoundly damaging to the rule of law. This is a point you do not seem to adequately appreciate.
Good Post Blackadder
THere is as Doug Kmiec pointed out before he went off the rails “no “Catholic way” of interpreting the U.S. Constitution”
See “The Catholic Judge and Roe v. Wade”
http://www.beliefnet.com/Faiths/Christianity/Catholic/2005/11/The-Catholic-Judge-And-Roe-V-Wade.aspx
As to Scalia he of course looks at Custom and tradition too as to finding the origianl public meaning. Though Scalia does pick up dioctionaries of the day he does far more than that. See Scalia’s majority opinion in the recent Gun Control case as an example
The problem that many see with the “Living Const” theory is that in many ways it entails some of the sloppines of the Looking at the Vatican II documents in the “Spirit of Vatican” which often has negated the very wording of the Documents themselves
On the secular side we can see that as to State Execution where many say the Document prohibits State Execution but run into the proble that State Execution is mentioned in the very document itself.
THe Danger in all this in a secular sense is that one can live in a sort of anxiety as different Judges can change the law or increase its scope or narrow its scope all at whim. THus in our system the most unaccoutable branch of Govt (because of Life long tenure) becomes a potential threat and also does not help people’s respect for the law.
See for instance the recent State Spreme Court opinions on same sex marriage in California and Iowa. Though they are elected and have a more link to the people it shows the dangers.
“People like Scalia make the fundamental mistake of opposing Roe v. Wade, for instance, because such a “right” was not in the minds of those who wrote the document. Sorry, but Roe is bad law because it directly violates a core tenet of the natural law. What if the founders had supported abortion? Would that make it better? For the Scalias of the world, it would.”
Well Morning we can take a look at the issue of Slavery. In the pre Civil war days was a person that believed Slavery as practiced in the U.S against the Natural Law supposed to delare it was now illegal.
THe answer would seem to be the obligations are different. First the problem is that the above person’s Postion as Judge is there because it is part of the “bond”. That is his power comes from the Const that made this arrangement. Even Lincoln did not think he or the COurt had the power to elminate Slavery by fiat. Thus the plan was to strangle it.
So if Scalia was on the Court in 1820 I would expect him not to think he had the power to end slavery.
In the background there are real poltics here. The Court has no armies to enforce it decrees and in large part must have its decrees obeyed by their own integrity
“Intentions are about as secret as things can get, original intentions are even more mysterious. Distilling that from a plurality makes for an even harder task. But, all that aside, the prose of the constitution is read with reverence by many—and for good reason, if they find it to be that important—and this makes the constitution, and the corresponding moral notion of constitutionality, dangerously close to scripture and spirituality.”
Sam I would agree as to Intentions. THe problem is furthered because as to the Legislators at the time in the public debate this seems to centers on big 3 or 4 and everyone else is ignored. Jefferson seems to be cited all over the place as to what should be the meaning U.S. Const even though he was not even in the COuntry at the time
I guess don’t see it akin to Spirtuality though
Originalism is somewhat mythic. It typically pays attention to the intent of drafters, but not of the actual legislators – the ratifying conventions, which if originalism were to be a deeply meaningful theory, would have to figure more prominently and *not* simply take drafters as proxies therefor.
The other problem is that originalism in its current guise is somewhat anachronistic, to the extent it is being developed into something more coherent than was the case in the time of the drafters and ratifiers.
The one consistent truth of American constitutional praxis since the 1790s is that Americans appeal opportunistically to natural law and positivism. We are consistently inconsistent. An originalism that candidly engages that reality would be more credible.
It’s interesting that MM is still flogging this inapt analogy more than a year after being so solidly refuted by a top constitutional law professor (Rick Garnett).
Where’d you come from, S.B.?
Whatever the “original intent” of the Constitution, there is always a residue of meaning in every article. Thus the article about slave trading does permit the ownership of slaves.
Now the way to change that permission is to amend the Constitution. For some reason, this is shied away from as though it were blasphemous.
I wish I could follow these arguments better. I’ve tried Scalia and O. Holmes and others for a free speech seminar and it made my head hurt. I only half get legal arguments, but they are clearly important in a constitutional republic with democratic processes.
S.B. – welcome back. I hope you continue to comment.
Blackadder is open-minded enough to let a comment of mine slip through. Hope he doesn’t get banned himself for doing that . . . .
Notice the key elision in MM’s argument, the key place where his sleight of hand skips over the fact that he’s comparing two completely different things without any argument for why they’re similar:
So for Catholics: (i) scripture itself must be read in a dynamic manner; (ii) the Holy Spirit also guides the Church through sacred tradition. . . . But American “orinialists” don’t like this way of thinking.
Well, gee, maybe that’s because there’s absolutely no reason to think that the Holy Spirit is “guiding” any American judge in a “sacred” process of re-interpreting the American Constitution. And hence, there’s no earthly reason to think that Scripture and the Constitution should evolve in the same way.
The irony, of course, is that if anyone could be accused of treating the American Constitution like a religious document, it’s MM himself! Here he is, saying that the Constitution should be read like Scripture and (apparently) that the Supreme Court plays the role of Pope, being guided by the Holy Spirit.
The common good of 2009 is not necessarily the common good of 1789. To say otherwise might violate right reason.
And it’s ironic in the extreme for someone to bring forth this reasoning after having purported to oppose Roe v. Wade. Roe occurred precisely because judges used the interpretive method that MM supports, i.e., they decided that the modern notion of the common good required the protection of abortion, regardless of whether such a right could be found in the Constitution’s text.
jh: Thanks for engaging with my comment and I can see where the link is blurry between constitution and spirituality. This is what I called “the corresponding moral notion of constitutionality.” Let me try to explain.
Since constitutionality (see the update to my post below) corresponds to the actual constitution, the criteria, as it were for that moral notion is embedded in the document itself. This seems much like the golden rule and its corresponding notions of intuitive morality in the treatment of other human beings are embedded in the New Testament. If that is true, then, I think that the constitution can function, at the level of moral belief, as a spiritual text. And, in my opinion—which has nothing, absolutely nothing at all, to do with originalism (something people seem to be ignoring about my stance on the matter)—that is not a good thing for at least two reasons. One, it doesn’t compare to other texts, in my opinion. Two, it further erodes from the thing itself that is not a matter of constitutionality or morality.
S.B.: I am new here, but you seem to be mad at some of us. Please accept my most sincere “hello.” I have nothing bad or mean to say about you right now.
I hope this thread doesn’t become another tired case of polemics—its depressing.
Roe occurred precisely because judges used the interpretive method that MM supports, i.e., they decided that the modern notion of the common good required the protection of abortion, regardless of whether such a right could be found in the Constitution’s text.
Yes, I think this is exactly right. A few months ago I posted this:
http://vox-nova.com/2009/02/11/the-reduction-of-personhood/
From this absolute mess of a decision:
“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Em, yes, when you allow discretion then it is possible that the wrong thing will be chosen. This is supposed to be an argument for sola scriptura constitutionalism? I would say it is more an argument for moving away from a written constitution and toward the natural law.
Blackadder,
Isn’t Thomas talking about custom-based law in this context? I’m not sure what he would have made of modern constitutions.
I would say it is more an argument for moving away from a written constitution and toward the natural law.
So are you really arguing that moving away from a written constitution and toward the “natural law” (which, in practice, will really mean whatever judges of vastly differing opinions think is the natural law) will somehow reduce “discretion”? That’s quite an amazing view, one that’s hard to take seriously.
Isn’t Thomas talking about custom-based law in this context?
I don’t think what St. Thomas says is limited to custom-based law. In any event, in our society the custom is to respect the constitution and treat it as the binding legal norm.
Would the common good be better served if judges were empowered to invalidate laws they thought went against the Natural Law? I find that doubtful. But even if that would be a better system, it’s not the system we currently have, and having judges do this when they aren’t empowered to do so does great damage to the rule of law and to the legal institutions necessary for society to function properly.
Blackadder — I think what MM needs is to read up on some basic American civics, and from there progress to some basic constitutional theory (including a variety of texts, from Scalia’s “Matter of Interpretation” to Mark Tushnet’s “Taking the Constitution Away from the Courts” to Larry Kramer to John Hart Ely).
It’s not really fruitful to have this discussion with someone who seems to think that a constitutional system of government is just the Catholic Church in disguise, and who doesn’t seem to be aware of the most basic theoretical and practical issues raised by judicial review.
The issue is not judges being empowered to invalidate laws. In fact, judges who violate laws the most in the US are those who claim fealty to some “originalist” understanding of the constitution. Custom evolves. The new economic role of the govermment (developed from the New Deal onwards) is part of the architecture. Simply claiming that the people who wrote the constitution would have disagreed is irrelevant.
I prefer the UK system of not having a written constitution. If it is written, it should specify the rules of the game. It should not be deified, as it is in the US.
The issue is not judges being empowered to invalidate laws.
True. The issue is judges being empowered to invalidate laws not because they actually violate the constitution, but because they violate the judge’s notions of the common good, or natural law, or whatever.
Custom evolves. The new economic role of the govermment (developed from the New Deal onwards) is part of the architecture.
I don’t actually think that Scalia disagrees with this. He hasn’t, in any event, seemed all that eager to enforce a pre-New Deal understanding of the scope of the federal government’s power.
I prefer the UK system of not having a written constitution.
That’s nice. But we don’t live in that system.
In fact, judges who violate laws the most in the US are those who claim fealty to some “originalist” understanding of the constitution.
Says who? What does it even mean for a judge to “violate laws”? You mean taking bribes, or something like that? Then prove it.
Not surprised that there’s no answer.
Em, yes, when you allow discretion then it is possible that the wrong thing will be chosen. This is supposed to be an argument for sola scriptura constitutionalism? I would say it is more an argument for moving away from a written constitution and toward the natural law.
Hey, I’ve got a bright idea. When you allow discretion for bankers to choose their level of capitalization and leverage, it is possible that the wrong thing will be chosen. This is supposed to be an argument for having a regulation, the text of which makes the bankers restrict their conduct? I would say it is more an argument for moving away from any written regulation, and towards a system in which bankers are free to do whatever they like, as long as they say they’re doing what they think is best.
Great argument, huh?
And please don’t bother complaining that regulation isn’t an exact parallel to a constitution; it’s a heckuva lot closer than Scripture, of all things.
By parity of meaning, then, sola constitutionola would be the view that the Constitution is inerrant and infallible, and that it is the sole rule and norm for legal doctrine.
The statement makes no sense. Unlike the Bible, the constitution does not make truth claims that can be evaluated against some external truth referent. For example, it doesn’t claim that the value of PI is 3. In that sense, it’s impossible for the Constitution not to be inerrant and infallible. In fact, like Euclid’s propositions, the issue of truth is irrelevant. The only thing that counts is self-consistency. i.e., the ability to serve as an unambiguous basis for a system of juriprudence and legislation.
Is the “natural law” anything more than religious dogma in disguise?
Who gets to say what it is? How is it isolated from the trappings of a particular culture or system of religious beliefs (or no belief at all)?
I prefer the UK system of not having a written constitution.
That’s nice. But we don’t live in that system.
So… because we live in “this” system, our system is beyond critique? We should not compare it to other systems?
You usually don’t make these kinds of comments, BA. I’m surprised.
It’s a rather obvious point to make: given that America does (like it or not) have a written Constitution, it is asinine to suggest that when courts pay attention to that written text, they are acting as “Protestants” (a term that is used in a bigoted fashion to mean automatically wrong).
So… because we live in “this” system, our system is beyond critique? We should not compare it to other systems?
No, that’s not my point.
Perhaps an analogy would make my point clearer. It would probably be better if the U.S. used the metric system than its current system of measurement. Metric is more rational, other countries all use it, etc. Of course we don’t have the metric system currently, and one could argue about whether the costs of switching over would outweigh the benefits, and so forth. Maybe the change over would be worth it. Maybe not. But presumably no one thinks it would be a good idea, so long as we haven’t switched to metric, for people to pretend that we have, and to write ’3 yards’ when what they mean is ’3 meters’ and so forth. Doing that would simply lead to disaster.
Perhaps an analogy would make my point clearer.
If the US vs UK systems were truly analogous to systems of measurement, I could see your point. But they’re not. MM’s comments offer a critique of the notion of having a constitution as a feature of a political system and in doing so, he compares that system to other systems. Political systems, unlike systems of measurement, involve moral values and these can and should be judged and critiqued. Simply saying “well, we don’t live in that system so can it” won’t do unless you mistakenly believe that 1) political systems are morally neutral and/or 2) that they cannot be changed.
MM isn’t proposing to get rid of the US Constitution. He’s proposing that even while it’s still there, judges should feel free to ignore it and rule instead based on their feelings (which they would call “natural law”) . . . which could be a respectable argument, if it weren’t couched in completely irrelevant anti-Protestant bigotry.