Monday, July 20, 2015

Constitution Sola Scriptura

OK, with that out of the way, I should probably say something about my general philosophy of interpreting the Constitution.  My philosophy is the one usually described as "textualism," i.e., that any decision should be justifiable by the text itself.  I have on other occasions referred to this as the enlightened layperson approach to the constitution -- that interpretations should make sense to a person with no special training in law or history who has nonetheless read the Constitution itself. It has also been called Protestant constitutionalism.  While Catholicism had a long history of scholarship and tradition in interpreting the Bible, Protestants proposed to set that aside and let every layperson read the Bible and interpret it in accordance with his or her personal conscience.  This is also called sola scriptura (only scripture) or the priesthood of the believer.

I have long been a fan of sola scriptura, although the rise of Wahabi/Salafi Islam has given me second thoughts.  I think it is fair to call the Wahabis/Salafis the Muslim equivalent of radical Protestants.  Like the more extreme Protestants (especially in the 16th Century), they are iconoclasts and destroy sacred objects lest they become objects of idolatry.  They also reject a longstanding body of scholarship and tradition in favor of sola scriptura and appear to believe in the priesthood of the believer. (At least Bin Laden, an engineer with no special religious training, was issuing fatwas in flagrant violation of tradition).  So I am now of two minds about sola scriptura.  On the one hand, it is supreme arrogance to set aside the contributions generations of scholarship who made study of the scriptures (and other forms of religion) their life's work and say that you know better.  On the other hand, quite simply, scholars can be wise and learned and still be wrong.  And if one scholar builds upon the work of another, retaining the earlier scholar's errors and elaborating or magnifying them, you can end up with a huge edifice of scholarship that ends up having no scriptural basis whatever. That is worth challenging.

I am rather less conflicted about the subject when it comes to the Constitution.  The Constitution was not written in the distant past by remote and little-known figures.  It was written in 1787 by well-documented figures with an outlook not so different from our own.  The Founders had, for the most part, moved away from Christian orthodoxy.  They were, nonetheless, intellectual and philosophical heirs of the Protestant tradition of making the Bible available to the laity, and the view that equated sola scriptura with liberty.  (Specifically, freedom of conscience).  It is, therefore, probably not a coincidence that they wrote the Constitution they used simple language with a minimum of legalese. This was (presumably) done to make the Constitution accessible to the general public.

It should be interpreted in a way that makes sense to the general public, and that allows a judge to point to a actual language in the constitution as the basis for a particular opinion.  That means none of this elaborate body of tradition with one opinion building on another to create a whole castle spun out of air, such as a constitutional right to abortion or to same sex marriage.  And just for what it is worth, plenty of experts get cynical about the process.  One of my constitutional law professors would speak about reading the Constitution with a "magic decoder ring."  And in our six-week prep class the constitutional law lecturer went so far as to say, "Don't pay attention to what the Constitution actually says.  Follow what the judges say it says."  Or one of my teachers as a paralegal, "From the right to be free of  unreasonable searches and seizures comes the right to privacy.  And from the right to privacy comes the right to abortion.  Well, don't laugh,  It's what they said."  I am opposed to any interpretation of the Constitution that encourages this sort of cynicism.

The textual or sola scriptura approach is not the same as originalism.  Granted, originalism can protect against something really nutty like a constitutional right to abortion or same sex marriage. But it makes the Constitution inaccessible to the general public.  Indeed, as this post brilliantly puts it, it even makes the Constitution  inaccessible to judges.  Only a narrow priesthood of professional historians can understand it;
[O]ur constitutional rights will be defined by amateur historians’ ability to cherry-pick the historical record. 
Aside from the epistemological problems, it’s worth noting how utterly non-transparent and undemocratic this methodology is. In the Middle Ages, priests kept power by using a language (Latin) that only the educated elite could understand. Similarly, the Court’s tedious examination of dueling history books makes the opinion unreadable, and prevents the larger public from having a meaningful debate about it.
I mean, this is a problem with law opinions more generally. But debates about text and structure and policy and institutional allocation of power are least potentially accessible to the public. 
Hell, I teach law and I can’t even get through the tangled 157-page mess that came down this morning. More to the point, it’s impossible for me to realistically assess the historical validity of these claims. To have fully informed decisions on close historical questions like these from the 1790s and earlier would require you to take a few years off and work on a history Ph.D. Thus, the dueling history opinions are not so much wrong, as they are unverifiable either way. I’m honestly not competent to assess them. 
It shouldn’t be that complicated. If it is, we’re doing something wrong.
He then goes on to discuss the problems with the assumption that decisions should address the issues of the 18th Century rather than the issues of today.  At the same time, he concedes that historical background can be useful when the record is clear (for instance, putting soldiers on 25 cent pieces is not an unconstitutional "quartering" of troops).

I would add, it is also useful when the text is not easily accessible.  For instance, "No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken."  To most people these days, that would be incomprehensible.  A little historical background, however, makes the meaning clear.  In the 18th Century, a "capitation" was a head tax.  A "direct" tax was either a head tax or a property tax.  So this section says that "direct" federal taxes must be head taxes rather than property taxes. The census previously mentioned is a  mandatory ten-year census that would base representation and direct taxation on all "free persons" and three-fifths of all "other persons," i.e., slaves.  In other words, this section specifically bans a property tax on slaves and says that only three-fifths of slaves may be counted in a head tax.  No wonder this section is unclear; it was intended to obfuscate!

This is not to deny that even under a textual basis some decisions will be controversial.  But at least in cases of such controversy, judges will be able to point to a specific clause of the Constitution as what they are applying.

No comments:

Post a Comment