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Published online by Cambridge University Press: 24 April 2015
Those who have made an equally sedulous study of 1) American constitutional law and 2) religion—particularly New Testament theology—are immediately struck by the many similarities inherent in both the process and polemics of textual interpretation between them. The observation and description of these similarities have been the subjects of a relatively small yet proliferous corpus of comparisons and investigations, predominantly in law journals and monographs. Most constitutional legal scholars, not formally trained in and therefore unfamiliar with the arcana of theological hermeneutics and exegesis, earnestly join the jurisprudential debate over the “intent of the framers” and the creation by certain justices of the U.S. Supreme Court of new constitutional fundamental rights via substantive due process and/or the penumbra doctrine, without ever realizing the striking parallels in the debate between theologians about the original meaning and applicability of the New Testament canon to modern moral and religious problems.
1. See page 310 infra, where I discuss what appears here to be an omission relative to “dissimilarities.”
2. Not that it does not occur in reverse, i.e., that such comparisons do not occur in religious studies journals. They do, but not to the same extent, which explains the use of “predominantly” instead of “exclusively.” See inter alia Pelikan, , The Vindication of Tradition (1984)Google Scholar.
3. On the literary criticism to constitutional interpretation issue, see, e.g., Dworkin, , Law as Interpretation, 60 Tex. L. Rev. 527 (1982)Google Scholar. On the interpretivism and noninterpretivism issue, see, e.g., Ely, J., Democracy and Distrust: A Theory of Judicial Review, chapters 1-2 (1980)Google Scholar.
4. Murray, J., The Problem of God: Yesterday and Today 53 (1964)Google Scholar.
5. 381 U.S. 479 (1965), 405 U.S. 438 (1972), and 410 U.S. 113 (1973), respectively.
6. Cover, , Foreword: Nomos and Narrative, 97 Harv. L. Rev. 9 (1983)Google Scholar.
7. 3 Dall. 386 (1798).
8. Id. at 388. These “principles,” I suspect, might legitimately be equated with those of which Ronald Dworkin speaks as practically inextricable from the processes of adjudication. See Dworkin, , Taking Rights Seriously 82–88 (1978)Google Scholar.
9. 3 Dall. at 399.
10. 198 U.S. 45 (1905) and 291 U.S. 502 (1934), respectively.
11. Substantive due process was never entirely in hibernation from Nebbia to Griswold. See, e.g., Skinner v. Oklahoma, 316 U.S. 535 (1942).
12. 304 U.S. 144 (1938). Justice Stone's famous foreshadowing is found in his footnote 4, at 152.
13. 381 U.S. at 482, 484.
14. 405 U.S. 438 (1972).
15. 410 U.S. 113 (1973).
16. Grey, , The Constitution as Scripture, 37 Stan. L. Rev. (1984)CrossRefGoogle Scholar.
17. 462 U.S. 416, 420 (1983).
18. “Interpretivism,” a term used by John Ely, Gerald Gunther, Thomas Grey, et al., is basically synonymous with “originalism” as used by Paul Brest. It is a mode of constitutional interpretation or exegesis which adheres narrowly to the written text and to a strict intentionalism with regard to the purposes that the framers sought to achieve, and advocates a finite role for the judiciary that does not include law making.
19. “Noninterpretivism” is the opposite term used by the same commentators and is, of course, synonymous with Brest's term “nonoriginalism.” As the opposite of interpretivism, it is a mode of interpretation which regards neither the text nor the framers' intentions as binding, but advocates an activist role of the judiciary in establishing standards—and enforcing them by decree—to fit the needs of a radically changing world whose exigencies were not and could not have been foreseen by the framers.
20. Templeton, , Kerygma: A Definition in God, Secularization, and History 103 (Long, E. ed. 1974)Google Scholar.
21. Bultmann, , New Testament and Mythology in Kerygma and Myth: A Theological Debate (Bartsch, H. ed. 1972)Google Scholar. Legal scholars making comparisons between biblical hermeneutics and constitutional interpretation have most often—like Garet and Cover—sought to contrast the legal debate with the Protestant Reformation begun by Martin Luther. Luther—and by extension Calvin-with their reliance on sola scriptura and sola fide, are normally viewed as analogues to legal noninterpretivism, and the dogmatic Church as analogue to the doctrinaire and conservative interpretivists.
22. Id. at 15 and 24.
23. Id. at 18.
24. Id. at 19.
25. Id. at 22.
26. Id. at 34.
27. Id. at 34-35.
28. Id. at 37-38.
29. Id. at 40.
30. Id. at 3.
31. Id. at 4.
32. Burt, , Constitutional Law and the Teachings of the Parables, 93 Yale L.J. 455, 467 (1984)CrossRefGoogle Scholar.
33. Garet, , Comparative Normative Hermeneutics: Scripture, Literature, Constitution, 58 S. Cal. L. Rev. 37, 45 (1985)Google Scholar.
34. Johan Huizinga was a renowned Dutch scholar who flourished in the first half of the twentieth century and who is regarded by some historians as the epitome of the historian of culture, able to capture the intangible and nonquantitative aspects of culture for a complete understanding of the culture, and against whose works most others are judged. He was most famous for The Waning of the Middle Ages (1924), Homo Ludens: A Study of the Play Element in Culture (1938), and, à la Tocqueville, , America (1928)Google Scholar, where he wrote that “[t]he ideological terms in which the struggle [ratification of the Constitution] was waged were those of Freedom against Aristocracy, and the passion that inspired it was that of unbroken individualism resisting the menacing pressure of government.” (p. 22).
35. It should be added that there are strong parallels between the American state of affairs in the 1770's and 1790's, in terms of ordo ab chao, and that of post-Civil War America. The latter period might in some ways be viewed as a microcosm of the former, where the 13th, 14th, and 15th amendments were added to further “secure the Blessings of Liberty” to a segment of American society theretofore excluded from them. The relevance of these parallels exists in the degree to which the 14th amendment is used by noninterpretivists to justify the results of their constitutional interpretation in substantive due process cases.
36. Bultmann, supra at 1. It is not possible to enter into a complete history of culture for either worldview within the confines of this short essay. It is sufficient that the reader has the general idea.
37. Brest, , The Misconceived Quest for the Original Understanding, 60 B.U.L. Rev. 204 (1980)Google Scholar.
38. Id. at 204. In the last phrase Brest quotes from Justice Sutherland's dissent in Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 459 (1934).
39. Id. at 205.
40. Perry, , The Authority of Text, Tradition, and Reason: A Theory of Constitutional “Interpretation”, 58 S. Cal. L. Rev. 551, 555 (1985)Google Scholar.
41. Nor could all “prescriptions and processes” be embodied in the Constitution. As was noted early on by Chief Justice Marshall, “A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could be scarcely embraced by the human mind.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
42. Hoy, , Interpreting the Law: Hermeneutical and Poststructuralist Perspectives, 58 S. Cal. L. Rev. 136, 148 (1985)Google Scholar.
43. This assertion by Justice Douglas is perhaps the closest admission to the practice of seeking the kergyma from within the “narrative” and mythos of the post-Revolutionary American worldview as one can find. Roe v. Wade, 410 U.S. at 210.
44. See Perry, supra note 40, at 565. The “constitutional text is a symbol of the aspiration of the political tradition,” and that tradition “can free us to create.”
45. Brest, supra note 37, at 205.
46. See Bultmann, supra at viii. Twenty years after the publication of “New Testament and Mythology” Bultmann critiqued such muted accusations of heresy which had been directed at him during that time: “With unflinching pharisaism they condemn an opinion different from their own as false doctrine, in the certain conviction that their own opinion alone represents the truth. They cannot imagine that they themselves could possibly be in error. They cannot listen any longer to another opinion or feel challenged to re-examine their own position.”
47. Berger, R., Government by Judiciary 410 (1977)Google Scholar.
48. See especially the works of von Daniken, Erich (Chariots of the Gods (1970))Google Scholar and Allegro, John (The Sacred Mushroom and the Cross (1973))Google Scholar.
49. Perry, supra note 40, at 565.
50. Murray, supra note 4, at 53.
51. 478 U.S. 186 (1986).
52. Levinson, , “The Constitution” in American Civil Religion, 1979 Sup. Ct. Rev. 123, 150Google Scholar.