On the Last Day, when some classifying angel is assigned to assess the cultural theories produced during the 20th century, there may not be much to put under the positive column. I have always thought one particularly wrongheaded development to be what literary theorists call “homologies.” What usually occurs under this esoteric heading is a quite crude assertion that two cultural manifestations are not only similar, but identical. For instance, Frank Rich of the New York Times has argued that the failure by American troops to protect artifacts in the Baghdad museums offered proof (if Times readers needed such) of the philistinism of the Bush administration. The radical culture critic Susan Sontag has more recently claimed that the American abuse of Iraqis at the Abu Ghraib prison “is us”—that is, reveals our core as Americans.
The principle is never applied to argue that, say, the collapse of the post-modern terminal at the Charles de Gaulle Airport in Paris confirms suspicions that French culture and its American acolytes are leading us toward dangerous instabilities. (I may be a little oversensitive to this point since I walked through that terminal twice a few weeks before it crumbled.) In short, a lot of what passes for cultural analysis under this and other contemporary theories, stripped of sophisticated trappings, looks like nothing other than a collective ad hominem attack, usually against people or groups classified as insufficiently progressive.
So it is a rare and quite pleasant surprise to come upon a well-conceived and nonideological comparison between two large cultural features of our society. But that is exactly what Jaroslav Pelikan has recently produced with his magisterial little book Interpreting the Bible & the Constitution (Yale University Press). Pelikan has for decades been one of the outstanding historians of Christianity. He brings the balance, precision, and proper nuance he has shown in every one of his nearly 40 books to looking dispassionately at the many similarities—as well as the differences—between the way that people have come over the centuries to interpret the Bible and the American Constitution.
If you have not thought much about the relationship between the two, there are more parallels than you might suspect. In either case, we begin with a text now hallowed by centuries of reverence. Pace the fundamentalists of various kinds, neither document is completely self-interpreting. The Protestant doctrine of sola scriptura, for instance, comes up against the difficulty, as Pelikan demonstrates in various historical cases, that we need to draw out Scripture’s meaning, especially where there are cruces interpreturn (cruxes of interpretation). All but a few Protestants recognize as much.
Take Martin Luther’s famous assertion of justification by faith alone, which hinges on his reading of a passage from Paul’s epistle to the Romans. Catholics replied by citing the letter of James, which underscores the need for faith and works. The Orthodox have often invoked James as well in support of their own tradition. And each of these approaches entails an appeal to an authority: for Lutherans, the individual conscience; for Catholics, the pope and the Magisterium; for the Orthodox, the various councils of Greek Christianity. And in each church there are administrative authorities as well who make judgments and discipline members who stray from the revealed Faith.
Constitutional interpretation is not as different from this process as first appears. Granted that the U.S. Constitution is a human document in a way that Christians believe the Bible is not, it functions, as Chesterton once noticed, as a kind of creed. Americans pledge their allegiance to that creed, and federal judges, most notably the justices of the Supreme Court, have usually accorded the words of the text a kind of sacred character not to be lightly tampered with. “Original intent” with regards to the Constitution is crucial and has been in some instances disastrously ignored. But as with sola scriptura, original intent also cannot be a simplistic flight from the need for interpretation. Nor can it mean that the individual clauses of our basic national covenant should only be interpreted as meaning what the delegates assembled at Philadelphia had immediately in mind. The Constitution has its own cruxes of interpretation as cases arise and therefore its own version of what Cardinal Newman called developments of doctrine. And like Scripture, since the text is not self-interpreting, we have, for good and for bad, a kind of sacred priesthood or Magisterium in our Supreme Court, which is reflected in its quasi-liturgical proceedings.
People who think about religion and politics in Washington have long noticed many of these issues. I have to confess that Pelikan added something new to my own reflections, however, by pointing out that there is a kind of ordinary and extraordinary magisterium in constitutional interpretation. The ordinary magisterium is the accumulated wisdom of the judiciary and the people as those have functioned over hundreds of years in lower federal and state courts. You can deduce a lot about what has always and everywhere been basic American law by looking to these everyday proceedings. The extraordinary magisterium in constitutional interpretation, like its ecclesial counterpart, comes—or perhaps we should say ought to come— only rarely, when some fundamental question about our compact cannot help being addressed.
Pelikan deftly sketches how many prior members of the Supreme Court followed, consciously or unconsciously, the belief that they should avoid pronouncements on the Constitution whenever possible. Justice Brandeis brilliantly codified these intuitions in 1936 in seven rules aimed at restricting constitutional questions to a bare minimum. Even in cases where some constitutional principle might be involved, he wrote, the Court should seek to decide on other grounds, whenever possible, and even when constitutional principles had to be faced should limit itself to not formulating “a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”
Of course this is precisely not only the crux of interpretation, but the bone of contention in recent cases such as Roe and Casey, which have shown a judicial excess and usurpation of settled law unique in our national history. If there is any flaw in Pelikan’s otherwise illuminating book, it lies in his avoidance of these cases. He might argue that his subject is the parallel between two traditions of interpretation rather than the parsing out of highly inflamed political controversies. Still, in the run-up to his brief comments on Griswold v. Connecticut, the first landmark decision that discovered a “right” to privacy (allowing couples to use contraceptives, a word Pelikan unfortunately does not use), he does invoke Oliver Wendell Holmes’s withering comments about “invisible radiation” from the Tenth Amendment and Hugo Black’s on “nebulous” standards. Pelikan observes that these “remind a patristic scholar of the metaphysical language of Valentinian Gnosticism or Plotinian Neo-Platonism.” All this delicately undercuts, for those in the know, William O. Douglas’s notorious observation in the 1965 Griswold decision that the “right to privacy” emerges from “penumbras, formed by emanations” in the Bill of Rights.
In a nation that respected intellectual honesty, this way of interpreting a revered text, be it the Bible or the Constitution, ought to be recognized as offering diminishing returns. You cannot claim the mantle of reverence associated with either text when your line of interpretation regularly reverses the way that text has been received for centuries. As many have argued, two behaviors—abortion and homosexual acts—once classified as crimes have now come to be regarded, via skewed interpreters, as fundamental rights protected by the Constitution. By the same token, liberal theologians and exegetes make Christian practice consist largely of tolerance and a nebulous love, while downplaying to the point of disappearance many of Christ’s clear formulations of what such love toward others and ourselves entails. Elaborate interpretations that do not merely interpret tradition in new conditions but that wander far from the bedrock of the text will find that they are producing as little respect for the values they wish to introduce as for the ones they wish to leave behind.