Meaning in the Constitution and the Bible
Several months ago, my friend Rob lent me a pair of short books by Supreme Court justices--A Matter of Interpretation by Antonin Scalia and Active Liberty by Stephen Breyer. Rob said that the dueling books offered an interesting look at contrasting ways of interpreting the law. (A Matter of Interpretation also contains essays responding to Scalia by Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin.)
Well, life intervened and I didn't even crack open the books until the last two weeks. Sorry, Rob! But now that I've read them I can confirm that they do indeed offer an interesting and clear contrast between "conservative" and "liberal" ways of reading and applying the written law--especially, of course, the constitution.
Now of course I am neither a lawyer nor a constitutional scholar. But as a writer, editor, and sometime literature student, I have spent my life immersed in the question of how we derive meaning from texts. And based on that experience, I must say that I find Breyer's way of reading and using the constitution, which focuses on interpreting individual clauses in the light of the document's broad underlying purpose--namely, to foster democracy in both American government and American society--very reasonable.
By contrast, Scalia takes what he calls a "textualist" approach. He scoffs at any attempt to divine the Founders' "intent" or "purpose," considering this inherently subjective and therefore an open invitation to read into the constitution any damn thing we like. Per Scalia, the remedy is focus solely on what he calls "the meaning of the text."
This might be all right as a starting point. But unfortunately, Scalia seems to think that the "meaning" of the constitution is self-evident, since he never really defines it. And for me this gives away the whole game. As far as I can see, what Scalia is doing is pretending that the law's "meaning" is obvious so that he can make that "meaning" whatever he wants it to be in a specific instance. Which is where atrocities like Bush v. Gore come from.
(Scalia's book was published in 1997, prior to Bush v. Gore, so he had no opportunity in its pages to explain or justify how--for the purposes of deciding a single case and giving the presidency to George W. Bush--he and the other right-wing justices suddenly discovered an entirely new and unprecedented "meaning" in the fourteenth amendment. Talk about reading one's personal political views into the constitution! It's hard to see how anyone can ever again take so-called conservative jurisprudence seriously in the wake of that decision.)
So much for my broad-brush reaction to the books. But I was struck by the similarities between Scalia's textualist approach to the constitution and the literalist (mis)reading of the Bible by fundamentalist Christians. For Scalia, the constitution is a fount of inerrant governmental wisdom that is in continual danger of being polluted by liberals who are eager to use it to support their most sinister doctrines, from abortion rights to affirmative action. To keep from sliding down that slippery slope, we must cling fast to "the meaning of the text" as Scalia sees it, since that is the only bulwark between us and the chaos of individual subjectivity.
In the same way, the fundamentalist Christians I've known view the Bible as their sole bulwark against all the evils of modern society. They fear and abhor "liberal" (i.e. non-literalist) readings of the Biblical text because these allow people to "pick and choose" which religious doctrines they will take seriously and which they will discard. We must cling to the Word of God, the fundamentalists say, or else we'll find ourselves sliding down the slope that leads from gay rights to child pornography to devil-worship.
At bottom, both attitudes are driven by fear--the fear that, if we try to use our powers of reason to analyze, interpret, and make sense of the wisdom of the past, we will inevitably be betrayed by our human weaknesses and end up floundering in error and sin.
I understand this worry. Our individual powers of reason are indeed fallible, and we make lots of mistakes when we rely upon them. Unfortunately, there's no alternative to thinking for ourselves. (That's life for you.) The fact is that "meaning" is never as unitary and obvious a thing as the fundamentalists imagine. When we pretend it is, we inject our own biases into our sacred texts without even realizing it.
Hence such gross inconsistencies as Bush v. Gore. Or, on the religious side, the fact that virtually every fundamentalist Christian ignores dozens of rules laid out in Biblical books like Deuteronomy and Numbers while exalting others to the status of shibboleths. For example, Leviticus 19:19 says:
Ye shall keep my statutes. Thou shalt not let thy cattle gender with a diverse kind: thou shalt not sow thy field with mingled seed: neither shall a garment mingled of linen and woollen come upon thee.About a page later, Leviticus 20:13 says:
If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them.Right-wing Christians are forever quoting the latter text, since it's one of the very few Bible verses that share their obsession with homosexuality. But they never quote the former text, because they have nothing personally against linen/woolen blended fabrics.
Now, it's possible to develop a theory as to why some Biblical proscriptions should be taken seriously today, almost three thousand years after they were first written down, while others can be safely ignored. But this would mean interpreting the broader meaning, purpose, or intent of the Bible--exercises of personal judgment that fundamentalists deplore. So they don't bother. Instead, they just cherry-pick texts they like and disregard others, falling victim to the very subjectivity they so greatly fear.
Of course, I'm not the first person to notice this parallel between Christian fundamentalism and constitutional textualism--in fact, Biblical scholar Jaroslav Pelikan has written a whole book about it. But it's interesting to note one more specific similarity between Scalia and the Biblical fundamentalists: Both insist on reading very different texts as if they contain exactly the same kinds of meaning.
Laurence Tribe points out this flaw in Scalia's reasoning in his essay responding to Scalia in A Matter of Interpretation. As Tribe explains, Scalia treats every line of the constitution with basically equal literalism. For example, Article II specifies the qualifications for the presidency this way:
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.Meanwhile, the first amendment defines several of our most basic freedoms like this:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.Now it seems clear that these two texts are working on very different levels of abstraction. The former, as Tribe puts it, specifies "a quite definite architecture" of government, while the latter proclaims "open-ended principles." The former clause demands a straightforward, literal application, while the latter cries out for interpretation in the light of evolving cultural, political, and social conditions. To read both texts as if their meanings were equally narrow, definite, and unchanging seems perverse. But this, in effect, is what Scalia's textualism tries to do.
This is very similar to the mistake many Christian fundamentalists make in reading the Bible. They fail to recognize that some books of the Bible consist of history, some of theology, some of legal, social, and political teachings, some of poetry, some of fable, some of mystic visions, and some a blend of several genres. As far as they are concerned, it is all "the Word of God" whose truth is self-evident and therefore requires no theory or practice of interpretation. As a result, they read the Bible as if they have no idea what they're reading.
To cite the most egregious example, they read the opening books of Genesis, which present an ancient myth about the spiritual relationship between God and creation, as if they were a scientific text book. On that silly basis they've launched a legal and educational war against modern biology, geology, and astronomy. This is what you get when you think you can avoid "interpretation" and just cling thoughtlessly to "the plain truth."
Thoughtful reading, whether in political science or in religion, is hard work. It's about understanding the context of what you read, the purposes for which it was written, and the underlying intentions of its authors, and then (in the case of the Bible or the constitution) applying all that in the light of your understanding of our contemporary issues and needs. It's not about clinging to comfortable, unexamined assumptions in the hopes that this will save you from the dangers of thinking for yourself.
Tags: Antonin Scalia, Stephen Breyer, constitution, Bible, fundamentalism, textualism, Laurence Tribe, Jaroslav Pelikan, Bush v. Gore, Genesis