Those who criticize the late Supreme Court Justice Antonin Scalia’s method of interpreting the Constitution tend to employ a method of interpreting written documents that not only undermines American democracy, but historic Christianity as well.
That’s the conclusion of some conservative literary and Bible scholars in the wake of Scalia’s Feb. 13 death.
Scalia belonged to a school of constitutional interpretation known as originalism or textualism – which held that the Constitution’s meaning is determined by the intention of its authors, as indicated by their use of grammar, syntax and vocabulary. In contrast, his legal opponents, known as progressivists, believe the Constitution is a “living” document whose meaning can be shaped and altered by modern judges.
Scalia illustrated his view in a 2005 dissent to a death penalty ruling, in which he stated, “I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court.”
Screen capture from The New York Times
Supreme Court Justice Antonin Scalia believed the Constitution’s meaning is determined by the intent of its original authors.
Karen Swallow Prior, professor of English at Liberty University, told Baptist Press “attempts to undermine our belief in the power and reliability of God’s gift of language” contradict a 2,000-year-old Christian tradition.
“As soon as we begin to think that an author’s meaning is what we make of it,” Prior said in written comments, “the notion that the [divine] Author [of scripture’s] meaning is what we make of it logically follows. Either words refer to things or they don’t. A biblical worldview not only says they do, but it depends on their doing so.”
Denying humans’ ability to know the meaning of written texts with confidence lies at the heart of the so-called postmodern worldview, Prior said, noting postmodern interpretation of documents “began largely in the field of literary criticism and then spilled over into constitutional law and biblical hermeneutics [the study of interpreting texts].”
Prior explained, “In general terms, traditional approaches to literary texts focused, in varying degrees, on the text and its context, assuming (rightly) that an author’s meaning, both textually and contextually, could be understood.” Postmodern interpretation questions “the very structures of meaning … and therefore an author’s ability to know and express meaning.
“With this so-called ‘death of the author,’“ she said, “the reader imposes meaning on the text as seen in schools of theory such as feminist, Marxism, reader-response and queer theory. These schools of criticism are more about constructing meaning rather than interpreting it.”
David Smolin, professor of constitutional law at Samford University’s Cumberland School of Law, said the progressivist view of constitutional interpretation gained prominence following World War II. Progressivists, he said, argue the Constitution’s framers intended it “to embody … changing views” and that America has inherited from British common law the idea of judges’ rulings “building up” the law.
Progressivists, Smolin said, envision “a building up of law from judicial precedent to judicial precedent. … That’s how we get a doctrine of same-sex marriage or abortion rights. We start with precedents in areas in the past of parental rights and the right to marry in terms of one man and one woman, and then as times change, we evolve those meanings.”
R. Albert Mohler Jr., president of The Southern Baptist Theological Seminary, wrote in a Feb. 14 commentary that Scalia’s opposition to progressivism in the legal realm “is directly relevant to the church’s proper reading of scripture.”
“The same liberal theorists who propose reading the Constitution as a ‘living’ and ‘evolving’ text,” Mohler wrote, “also propose that the Bible be liberated from its actual text and from the intention of its authors. Ultimately, this approach to the Bible, common to theological liberalism, denies the authority of God as the ultimate author of the scriptures. It is no accident that liberal theology and liberal theories of the Constitution emerged together in American public life.”
Ben Merkle, professor of New Testament and Greek at Southeastern Baptist Theological Seminary, said the idea that readers determine a text’s meaning “is contradicted by the very people who argue for it.”
“As we read their books,” Merkle said in written comments, “they desire for us to seek to understand their meaning and not to read in our own meaning.”
Merkle continued, “The best theory, and by far the most practiced theory, is that meaning is determined by the author. The author seeks to communicate and therefore conforms to the rules of grammar and syntax in order to convey his or her message. This approach is really the commonsense approach and what is assumed by most people.”
In studying the Bible, a reader’s goal should be to “determine what type of literature we are reading” – whether narrative, poetry, parable, proverb or another genre – and learn the grammatical and stylistic rules governing that literary form, Merkle said.
“As we approach the biblical text, our goal is to understand what the author meant,” Merkle said. “Thus, if we are studying Paul’s letter to the Romans, we ask ourselves, ‘What did Paul mean by this statement?’ and ‘How would the original readers have understood Paul’s statement?’ That is why it is helpful to study the language and culture of the author.”
As for Scalia, a Roman Catholic, he seemed to realize cultural elites were as likely to scorn an originalist reading of scripture as an originalist reading of the Constitution.
Employing his trademark sarcasm, Scalia told a 2005 audience in Baton Rouge, La., “To believe in traditional Christianity is something else. For the Son of God to be born of a virgin? I mean, really. To believe that He rose from the dead and bodily ascended into heaven? How utterly ridiculous.
“To believe in miracles? Or that those who obey God will rise from the dead and those who do not will burn in hell? God assumed from the beginning that the wise of the world would view Christians as fools … and He has not been disappointed.”
(EDITOR’S NOTE – David Roach is chief national correspondent for Baptist Press, the Southern Baptist Convention’s news service.)