Prominent religion professor Stephen Prothero has begun blogging for CNN. In a recent post he reported on a speech given by Justice David Souter. At the 2010 Harvard commencement, Souter called into question the “Originalist” reading of the US Constitution. He accused originalism of being overly facile, taking the text at face value without accounting for the document’s internal contradictions. Souter used the example of the Pentagon Papers to argue that the First Amendment right to freedom of expression was contradicted by the federal government’s constitutional responsibilities to provide for the national defense and to manage foreign policy.
Souter believes that the language of the Constitution is clear, but it remains internally inconsistent because it “embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well.” This inherent ambiguity alarms Originalists who seek to make the Constitution self-consistent out of a “longing for a world without ambiguity, and for the stability of something unchangeable in human institutions.”
The clash between Originalist justices (eg, Antonin Scalia) and those like David Souter is a matter of epistemology, the question of how they determine what is true. They have adopted different hermeneutics of truth. Prothero notes that the tension between Living Constitutionalists and Originalists is similar to that between fundamentalists and liberal Protestants. Like Originalists, fundamentalists believe in a founding document – the Bible – which is internally consistent and which has immutable, proscriptive power over human action. Prothero argues that Souter, a liberal member of the Episcopal Church (he once planned to become an Episcopal priest), holds both the Bible and the Constitution in similar regard. He believes that both the Constitution and the Bible are a “pantheon of values,” not inspired or internally consistent, but written by a group of men over time. Both should be interpreted in each generation as living documents, unbound by authorial intent.
Prothero believes that “one way of reading this commencement speech, which argues against piecemeal interpretations of Constitutional passages, is as an application of those liberal Protestant principles to questions of Constitutional law.” Prothero deserves praise for adroitly comparing Souter’s religious and judicial beliefs, showing that theology and political philosophy are intertwined.
Prothero’s observation should resonate with religious historians. We often create a (false) dichotomy between the sacred and the secular. We pretend as if theology and political philosophy can be compartmentalized apart from one another. But the concepts and even the very language of religion and politics are conjoined.
For example, Lincoln has studied the use of Jeremiads in American culture. The term is a Biblical reference, but the concept applies to secular discourse as well. Likewise, civil religion is the label we give the blending of faith and the State. My own thesis involves the reaction of a Cold War era preacher, Carl McIntire, to the denominational politics of the fundamentalist-modernist controversy, a reaction that had profound consequences for both his theology and his politics.
Souter is the perfect example of the way in which the sacred and the secular are combined. In his address, Souter describes one of the fundamental tenets of his faith, that he abides “in an indeterminate world I cannot control.” But despite the absence of the Constitutional certainty that Originalists find so comforting, he still trusts “that a way will be found leading through the uncertain future.” This is the unifying theme of both Souter’s faith and political philosophy. They cannot be isolated from one another.
We religious historians like to think of our specialization as a field or a topic of study. We study a thing called religion, it’s structures, adherents, and beliefs. But I believe that religion is something far more fundamental. It is not only a topic; it is a category of analysis like race, class, and gender. Indeed, someone can even use religious modes of expression without adhering to any formal religion. (Religion being just a name for the systematization of faith, the structures that we construct around our presuppositional beliefs.)
I hope that religious historians will engage topics beyond their traditional preserves of churches, seminaries, and ministers. Likewise, historians in traditionally secular fields should explore the role of religion in social, cultural, and political history. For example, why hasn’t a religious historian examined the impact of John Foster Dulles’s theological liberalism on his foreign policy? Why has no one written a political history of fundamentalism?
First we must discard the Enlightenment categorization of the secular as something apart from the sacred.
To the Christian, there is no difference between the secular and the sacred: every bush is a ‘burning bush’ and all ground is ‘holy ground.’
Bob Jones Sr. (1883-1968)
Great post Paul.
I’ve been thinking a lot about how one’s biblical hermeneutic influences his or her constitutional/political hermeneutic, and especially about the connections between strict constructionists/originialists and fundamentalists. One thing that those with a conservative hermeneutic need to remember is the distinct qualitative difference between the scriptures and the constitution. The first we hold to be inspired and inerrant; the other we (should) not. So while I do think we should detect and respect the original intent of the constitution’s framers, we can’t expect it to be 100 per cent consistent or inerrant.
One document we can put our faith in, the other we have to work with.
Scott, I agree completely.
Here’s a rejoinder to Souter’s fair reading model from the Wall Street Journal op-ed pages.
(The article is subscription access, but you can see the full article by going to Google News and searching for the article title, “David Souter’s Bad Constitutional History”.)