Part 4 of a 10-part series
Application to Law
The school of legal interpretation that is most extreme in an attempt to remain as purely objective as possible is termed “Original Intent.”
Strict Constructionists are especially concerned to avoid having the law become political. Law must remain above the social, cultural, and political fray – especially their unstable and changing realities – to be a means of independent control that effectively limits the conduct of citizens, institutions, and communities. In particular, law is to remain faithful to the reasons for founding the institution or community. Only what has been formally consented to by a legitimate source of authority can be constitutional law.
To go outside or beyond the original intent is to raise the question of the legitimate authority to make law. Courts are not legitimate authorities for the creation of law, and must not usurp the political role or trump the will of the body politic. If law is to evolve and change, then the changes must be overt and established through the given political processes. The only appropriate way to expand or change the constitution is to amend it explicitly. Until then, only the original intention of the ratifiers is legitimate and binding because that intent defines the scope of the consent. Nothing else, certainly no extension of internal logic or interpretive implications can be applicable because they will go outside that scope.
The aim is to limit any and all interpretations to that original intent and then to enforce rules that claim to carry out that intent. What founders or revisers intended in a constitutional article can be found in legislative history, such as in floor debates and media reports, or in evidence, such as articles and books. For example, the Federalist Papers are often examined for interpretation of the Constitution of the United States.
Application to the Bible
Christians try to apply “originalism” to scripture. Most of the time this is an attempt to find within scripture a code of law or of ethics that is absolute, inviolate, and universally to be applied at all times and all places – as applicable in the 21st century as it was in the time and place of the Roman Empire. This is articulated as a belief that “God’s law” is to be found in scripture. Biblical strict constructionists reject the legitimate authority of tradition and reason in interpretation of scripture, viewing each as unnecessary and even as an impediment. This is, of course, based on the perception that the Bible presents clear rules that everyone can understand and should follow. From this outlook, Christians of every day and age stand under Scripture as a rule that others made, or that God made through human instruments. Concomitantly, today’s Christians do not have the authority to make or unmake the rules through interpretation. By this interpretation, the church is to apply Scripture; it is to avoid making or revising an understanding of it.
However, we can hardly claim that writers of Scripture intended any such thing —certainly not one applicable to the 21st-century Christian Church. The writers and editors and shapers of the Hebrew scriptures intended any codes therein to apply to particular people living in a place and time most specific. There were, in fact, no codes intended in the strictly Christian scriptures, what is commonly termed the New Testament, and none exist.
We can turn, as we have previously in this series, to the wisdom of the 17th century English theologian Richard Hooker. He viewed the Bible as the guide in all things holy and profane and he believed it contained everything “needed or necessary to salvation.” He noted that “every Booke of holy Scripture doth take out of all kinds of truth, naturall, historicall, forreine, supernaturall, so much as the matter handled requireth,” but he held back from ascribing to Holy Writ absolute authority in the government of society or the last word in all things earthly. Divinely inspired, the Bible was nonetheless written by human beings and so subject to mistakes of detail and simple contradictions. Furthermore, he pointed out that it described life, mores, and times quite different from his day. Its authors, being human, could not have anticipated the world as Hooker found it, much less the way we find it today?
Most ethicists and biblical scholars agree with Hooker and maintain that we ought not to apply the Bible “prescriptively,” that is, treat it as the source for moral rules. Scripture, rather, speaks to moral life at the level of basic values and principles. It is often asserted that all scripture is to be interpreted in the context of “the summary of the law” as Jesus stated it. It is also deemed legitimate and helpful to employ analogical reasoning in the application of scripture to contemporary moral issues; for example, the exodus story is appropriately applied to the plight of oppressed and enslaved peoples. The Bible was not written as moral canon law for the Christian Church.
It is interesting to compare the way legal interpreters seek to uncover the original intent of a law and the way biblical originalists seek it. The former can turn to legislative history and important documents that reflect the thinking at the time that went into the writing and acceptance of the law. Many biblical originalists are suspicious of, and some flatly refuse to engage in, a validly critical study of the writing and acceptance of scripture in the first and second centuries. Instead, they will either claim that the plain words speak for themselves or they will rely on creeds, confessions, councils, and magisterium – all of which came much – centuries – later.
Finally, and this is to be repeated as a general critique of “strict constructionism,” original intent omits any consideration of tradition and reason because it refuses to account – to make room for – change. Because change is inevitable, scripture cannot be taken as literal, absolute, and immutable. Hooker was not merely pragmatic, he was realistic in seeing the necessity of using reason and tradition to interpret scripture in accord with new and unanticipated realities. Furthermore, he foresaw that the formation of a traditional understanding of scripture was to be decided not by a literal, or magisterium, reading, but as a result of the willingness to live a variety of interpretations until, over time, one rises to acceptance over the others as true.
However, there are many interpreters of law and scripture who claim the mantle of strict constructionism simply because they are (and often this becomes only too obvious) motivated by a conservative philosophy that dominates their analysis. We know of instances in which judges will sometimes employ reasoning that is rather highly imaginative in order to arrive at the conclusion they desire. That conclusion is usually reached, sometimes by a rather convoluted route. “Citizens United” and the decision to maintain the 18th century protection of the right to bear arms are outstanding examples on the U.S. Supreme Court.
Joe Morris Doss
President, At the Threshold