Here, we continue to examine the objectivist, or strict constructionist, school of interpretation by turning our attention to interpreters who are openly, and without apology, committed to conservative social, cultural, and political views. We refer to those whose political and cultural views drive their interpretations of law and scripture for ideological and strategic purposes.

Part 6 of a 10-part series

Certain 20th-century forms of legal jurisprudence that are usually grouped together under the term “structuralists” were engendered out of the dramatic struggles of the era with vastly different and even contradictory purposes. In the United States it was represented by the “legal realism” of the 1930s (incubated especially at Yale Law School) and the “neo-realism” of the Cold War, Civil Rights Movement, and Vietnam War era. Of these movements within jurisprudence there has emerged today’s version of “structuralists” whose primary concern is to impart particular values and protect certain conservative structures and institutions that they believe are crucial for “the American way of life” and democracy. “Structuralists” tend to subordinate all issues to strategic concerns.

The dangers of rising Post-WWI fascism and communism as perceived in the United States, on the one hand, and the emergence of the New Deal on the other, led to a new academic emphasis in law schools of the 1930’s. An innovative aim of education was put into place: the production of lawyers trained to be policy makers and upholders of the core values of liberal parliamentary democracy, whatever their area of legal practice. (“Liberal” is here being used as a term regarding governance committed to the protections of liberty, such as are set forth in the Bill of Rights, not a term identifying a position of the political spectrum.) Policy-making and the inculcation within American structures and institutions of the values that reflected the New Deal, and the protection against values and aims that were apparent in fascism and communism, became a goal for the practice of law, whether corporate law, tax law, criminal law, legislating, or any other specialty. The idea was to educate law students in the political and cultural values considered essential to American democracy and train them to bring these values to bear in their careers.

This shifted from a perspective inspired by the New Deal to an increasingly conservative “neo-realism” as the United States became engaged in WWII and then in the Cold War. The conservative movement intensified following the civil rights movement and the Vietnam War and became relatively established over the last 40-odd years in domination of politics as well as the judiciary. Instead of legal realism, structuralists became neo-realists and, often, conservative strict constructionists of the sort ready to develop arguments to guard their political and cultural viewpoint. Structuralists, who are now invariably strict constructionists, unapologetically look to protect the structures and institutions that are considered “conservative.” This approach is especially employed in protection of what is often termed “the establishment.” The establishment ranges from the ever present good ol’ boy system founded on wealth and power, to the growing power of the 1 percent who are increasingly taking charge of the political and financial realms of society, to the religious establishment as adhered to by the structuralist judge, scholar, or politician.

Structuralists strategically identify the institutional and structural relationships that the constitution mandates in order to discern “rules” and theories that can be employed for conservative purposes. In this sort of way, the structuralist tends to conjure up rules and insist that they are to be sacrosanct. Such an example can be found in the identification of speech with the money it takes to buy it, established in the name of protecting the first amendment. (Even the language regarding speech that is deemed “free” points plainly to the logical problem within a theory that equates that with speech that is purchased.) Another example of a neutral axiom in International Constitutional Law would be the recognition that certain fundamental principles cannot be violated — even if written into the text of a constitution. For example, a state cannot be forced to act against its own self-interests when the issue at stake is one of survival. This can provide considerable theoretical leeway for use of first-strike combat action and even to what international law condemns as torture.

Just as there are committed conservatives who use legal interpretation to strategically further the political and social conservatism agenda so there are Christians who read scripture through the lens of their conservative religious commitment, which usually begins with a commitment to conservative political and social issues, and find the bible a useful tool to support that point of view. It is no coincidence that the states of the old confederacy are the most conservative within the United States and that the most conservative churches predominate within them. It is not a matter of coincidence but one of irony that this region is deemed “the bible belt.”

Something similar has happened within the Christian community committed to the critical study of scripture to what occurred in the American “realist” school of jurisprudential “structuralism.” The movement from the New Deal values such as emerged in the Legal Realism of the Yale Law School during the depression was followed by a reaction in the judiciary that has been a major factor for the success of the conservative movement. In the church there has been a reaction against serious and scholarly biblical study that has been relatively successful. The reaction has been taken on behalf of Protestant fundamentalism, aided and abided by conservative Roman Catholic apprehensions – especially on cultural morays concerning women and sexuality.

Those who interpret scripture with the eyes of faith unencumbered by a prior social, cultural, and political commitment realize full-well the value of protecting the broad, pervasive, and underlying values, themes, and “good news” that makes the bible the Word of God. And, what is appropriately termed the “mainline” churches of Protestantism, the Eastern Orthodox Churches, and – by and large – the Roman Catholic Church also know the dynamic of having chosen to engage in scholarly efforts in order to enhance the understanding and appreciation of the scriptures only to have the effort opposed, co-opted and largely subverted by more conservative elements.

Still, we may remain confident that knowledge cannot be blocked except temporarily, that information always rises to daylight, that truth does carry the day, however painfully and slowly. When asked what his school was going to do after a decision by his denomination to nix the work to which he had devoted so much of his academic life, the dean of one of America’s outstanding seminaries replied: “Deeper scholarship.” The final word is that serious interpreters of scripture will avoid reading the bible as proof-texts for particular points of view and will expose ever more clearly God’s Word for each age.

Joe Morris Doss
President, At the Threshold

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