Interpreting the Constitution like the Bible

I was raised to be an originalist. When asking what the constitution meant, we were always to look at the “original intent” of the founding fathers. PZ has just offered a perfect example of this:

That man [Scalia]  is a dangerous lunatic. He’s got a theological dedication to insisting that the US must be run exclusively by the 18th century principles of the Founding Fathers — even when he’s willing to consider limitations on the ownership of weapons, he gives it an unbelievable twist.

The justice explained that under his principle of originalism, some limitations on weapons were possible. Fox example, laws to restrict people from carrying a “head axe” would be constitutional because it was a misdemeanor when the Constitution was adopted in the late 1700s.

What the hell is a “head axe”, I wondered. So I looked it up. Here’s a picture:

OK, that looks nasty. I’m glad the Supreme Court will think that casually carrying around a deadly looking thing like that is not reasonable behavior.

But then look where his reasoning takes him:

“What about these technological limitations?” Wallace wondered. “Obviously, we’re not now talking about a handgun or a musket, we’re talking about a weapon that can fire a hundred shots in a minute.”

“We’ll see,” Scalia replied. “Obviously the amendment does not apply to arms that can not be hand-carried. It’s to ‘keep and bear’ so it doesn’t apply to cannons.”

Oh, good. We can restrict people’s ownership of cannons…because he interprets the Constitution with a Ken Ham-like literal-mindedness that says the only weapons that count are carried.

“But I suppose there are handheld rocket launchers that can bring down airplanes that will have to — it’s will have to be decided,” he added.

So no head axes, and no artillery…but the right to keep and bear arms can be extended to fucking rocket launchers. … I give up. Our legal leadership consists of brain-damaged, narrowly literal-minded amoral morons who worship an 18th century scrap of paper.

I quote this at length because it really does bring out the connection between a literal interpretation of the Bible and a literal interpretation of the Constitution. Because they’re the same. Have you ever gotten in a fundamentalist row over head coverings? It’s really pretty much the same thing as getting in the middle of a discussion on the second amendment.

Growing up, I couldn’t understand how anyone could not follow an “original intent” understanding of the Constitution. I mean, what else even made sense? The reality is, for me at least, I couldn’t change my literalist understanding of the Constitution until I changed my literalist understanding of the Bible. Only when I began to see the Bible as a living document with context and, well, raw humanity could I begin to see the Constitution that way as well.

It might be a bit of a stretch to say that those on the far Right “worship” the Constitution, but they do seem to approach it with the same reverence and understanding that they approach their most sacred religious document. At least, I know I did.

How about you? If you used to be, or still are, religious, do you think your religious belief and practice affected how you viewed and understood the Constitution?

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About Libby Anne

Libby Anne grew up in a large evangelical homeschool family highly involved in the Christian Right. College turned her world upside down, and she is today an atheist, a feminist, and a progressive. She blogs about leaving religion, her experience with the Christian Patriarchy and Quiverfull movements, the detrimental effects of the "purity culture," the contradictions of conservative politics, and the importance of feminism.

  • James C.

    Another similarity: I’d bet an awful lot of people who revere both documents have read neither, not in any significant sense, but they revere them all the same, because…they’re magical? Because an authority figure said so? Both? Neither? I honestly don’t know.

    Even when I was Christian, I recognized the Constitution was written by mortals, so I never gave it any originalist reverence at all.

  • Azel

    It’s just me or do you also think that the originalist would be the most likely to instate a state religion in the USA if it were not for the First Amendment ? Perhaps with the Constitution as its holy writ. And even then it may happen: atfer all, it’s only an amendment, not the original text of their object of worship.

    • machintelligence

      atfer all, it’s only an amendment, not the original text of their object of worship.

      That might not fly, since the first ten amendments were adopted concurrently with the constitution.

      • Sqrat

        Not quite. The Bill of Rights was adopted in late 1791, after twelve proposed amendments were approved by Congress in 1789 and submitted to the state for ratification. Of the two that were not ratified in 1791, one was eventually adopted — in 1992. The other is still technically pending.

      • machintelligence

        My bad. Just shows what happens when relying on memory, and failing to check facts.

  • Amethyst

    There’s an episode of the original Star Trek series called “The Omega Glory” in which a parallel American race literally worships the Constitution, although they’ve forgotten what it actually says and what the words on it mean. Originalists often remind me of it.

  • Besomyka

    You’ve made an excellent observation. What about the 3/5ths compromise? Recall that when the Republican congress read the constitution, they omitted that part. The right also has an odd tendency to assert some Original Intent that is demonstrably NOT what the intend of the original authors had in mind. The separation of church and state is a good example of that.

    With the bible, the recorded intent of the authors is lost to time, but not so with the Constitution.

    You’d also think that the process of amending the constitution would make it clear that the original intent of the founders was that is could change to suit the ever changing needs and desires of the population that if governed.

  • Sqrat

    Growing up, I couldn’t understand how anyone could not follow an “original intent” understanding of the Constitution. I mean, what else even made sense? The reality is, for me at least, I couldn’t change my literalist understanding of the Constitution until I changed my literalist understanding of the Bible.

    What’s your preferred alternative, Libby Anne? When the Constitution says, “Congress shall make no law respecting an establishment of religion,” is that supposed to be read as a metaphor for something and not to be taken literally?

    • Uly

      Our legal system is based on precedent and interpretation. Nobody writing the constitution imagined themselves perfectly able to predict what would be needed hundreds of years in the future. That’s why every part has to be interpreted. What DOES the second amendment allow for? This wasn’t written out in little details, so we have to work it out ourselves. What DOES the first amendment prohibit? Ideas on this front have altered over time. What IS unreasonable search and seizure? That’s what the supreme court has to decide, because our founding document is, cleverly enough, not that specific.

  • Steve

    The American constitution was meant to be a living document. That’s why it is relatively vague and non-specific when it comes to personal rights. A lot of it is left open to interpretation by the courts.

  • Sqrat

    Nobody writing the constitution imagined themselves perfectly able to predict what would be needed hundreds of years in the future. That’s why every part has to be interpreted.

    James Madison (the guy often referred to as “the Father of the Constitution”) would have argued that it was because it was impossible to predict what would be needed hundreds of years in the future, a mechanism was provided to meet those needs – the amendment process. He would have been appalled at the suggestion that the Constitution could or should be “amended” by judicial interpretation.

    • Steve

      Only back then there were 13 states, so amending it was relatively easy. Today with 50 states it’s nearly impossible. At least for things that are even remotely controversial.

      • Joy

        You’d think so, yet most of those 50 states were there to implement that horrible Constitutional Amendment that gave us Prohibition.

    • Petticoat Philosopher

      Oh for pity’s sake, please learn something about your country’s government. The Supreme Court does not “amend” the Constitution with its rulings, it decides how these vague statutes are to be practically applied in real-life situations. And since real-life situations change as times change, this is a constant and never-ending process. What constitutes protected speech, for example? What exactly is “equal protection under the law?” These are the questions that the courts have to answer. That’s what the Judicial Branch is for, that’s what it’s always been for. If Constitutional law were as simple as just reading off a page, then everybody could be a Constitutional scholar.

      • Sqrat

        I don’t disagree with you, PP — unless you are suggesting, for example, that the courts ought to have unlimited latitute to assign whatever meaning they wish to phrases such as “equal protection of the law” in order to achieve the political ends that the justices desire.

        Let me use that very “equal protection clause” in any argument in favor of originalism: Whether abortion is legally permissible or impermissible in the United States depends to a considerable extent on the meaning of one word, “person” — as in “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (14th Amendment). If a fetus is not a person, then perhaps we can reason our way to the conclusion that no state government can legally BAN abortions. If, however, a fetus is a person, then the conclusion is well nigh inescapable that no state can legally ALLOW abortions, as that would deny certain persons — fetuses — the equal protection of the laws.

        So the question is, how should the courts have gone about deciding whether a fetus is a person? (a) Should they simply have decided that the word can mean whatever they wanted it to mean? Or (b) should they have conducted a poll to ascertain whether most English-speakers today consider fetuses to be persons? Or (c) should the justices have inquired whether, at the time the 14th Amendment was adopted, the word “person” was routinely held to mean “fetus”? As it turns out, in Roe v Wade the Supreme Court went with option (c) and ruled that a fetus was not a “person” for purposes of the 14th Amendment because, at the time the amendment was adopted, fetuses were generally NOT considered persons. In my view, that’s precisely what they ought to have done. Your mileage apparently varies.

    • Uly

      So exactly what do you think we have a judiciary FOR, then? You never heard of the “balance of powers”?

  • Sqrat

    The number of states would have been irrelevant, since the same proportion of states (3/4ths) required to ratify an amendment was precisely the same then as it is now. It might be worth arguing that 3/4ths is an excessively high barrier and that the Constitution should be amended to make amending it in the future easier. What you can’t plausibly argue is that a federal court would have it within the scope of its legitimate power to declare an amendment ratified and in force without having received the approval of the 3/4ths supermajority of states that the Constitution currently requires.

    • Mark Temporis

      It’s not readily apparent that it’s easier to get 3/4ths of, say, 20 states to agree — that’s only 15 guys you need on board — than it is to get 3/4ths of 50 states, where you need 37 1/2 states to agree. And this is why something as innocuous and uncontroversial as the ERA doesn’t get ratified.

      • Mark Temporis

        I intended a ? in there somewhere but I got to wrapped up to put it there. I think right before the capitalized And, which I also find a bit embarrassing, frankly.

      • Sqrat

        You’re focused on the wrong arithmetic problem. The difficulty is not in getting 75% of 50 state legislatures to agree (as opposed to getting 75% of 13 state legislatures to agree). The diffculty is much more a matter of getting 100% of two rival political parties to agree. That’s the way it has been throughout most of American history. If you could get the Republicans on board with the innocuous and “uncontroversial” ERA, it would sail right through.

  • Mark

    I’m on the fence about this, having started out thinking like you did on both points. I definitely agree that the constitution needs to be a living document and originalist worship is flawed. However, I would prefer tor the constitution to live and adapt through the process of amendments rather than by judges changing the interpretation of it. If there’s a substantial change needed to the way we deal with rights in this country (such as legalizing abortion), it would be preferable for that to happen through democratic means. If judges are given the responsibility for changing the constitution to keep up with the times, then it seems like they are basically legislators without accountability.

    To extend the analogy to the Bible, if there’s a problem with what the Bible says, you could either change your interpretation of the Bible away from what the authors originally meant so to be more in line with current morality, or you could change your canon of texts, getting rid of offensive old passages and bringing in new texts that are more in line with what you’d like the Bible to say today.

    No one is open to changing the Bible any more of course, and getting new amendments ratified is next to impossible. But I think it would be still be preferable for constitutional changes to happen democratically, rather than through the wisdom of judges deciding what the nation needs. If the judges have the ability to change the constitution, than whoever votes them in is really just amending the constitution by proxy.

    I think creating abortion rights from the text of the constitution has been a great thing for this country but I still respect Scalia’s position. Being able to stretch the constitution beyond its original intent according to what a judge thinks is best would make them more powerful than any president. Amending the constitution is supposed to be difficult and be done with broad consensus. Even if you use that power to do good, it shifts the balance of power towards the courts, and makes the democratic processes less important.

    • Steve

      That sounds nice in theory, but since most legislatures are controlled by theocrats, you will never see any progress on those issues there. For Pete’s sake, where but in America is contraception so controversial that all kinds of politicians want to deny access? The courts are the only place where minorities can defend their rights halfway reliably. Just as they were meant to. If elected people are the only place people can turn to to have their rights recognized, only majorities will have any rights.

    • Petticoat Philosopher

      “However, I would prefer tor the constitution to live and adapt through the process of amendments rather than by judges changing the interpretation of it.”

      But SOMEBODY HAS TO INTERPRET THE AMENDMENTS! People, we have a legislative branch and a judicial branch for a reason: they serve different purposes. Even when the Constitution is amended, the amendments don’t come with how-to guides about how to practically execute what they say. Take the “equal protection clause” of the 14th amendment for example, which provides for equal protection under the law. Well, that’s all well and good but what does that mean? There is no single interpretation. In the Plessy vs. Ferguson decision, the Court ruled that segregation did not violate the equal protection clause as long as facilities were “separate but equal.” That holding informed U.S. Law for 60 years, until Brown vs. Board of Education came along, where the Court ruled that separate was inherently unequal. (Still the holding.) Exactly the same amendment, two different interpretations. Because it’s IMPOSSIBLE to simply apply a vague concept like “equal protection under the law” without people having to decide what “equal” means and what “protection” means. That is the job of the Supreme Court–to interpret. It does not amend the constitution, it decides what the hell to do with the amendments once we’ve got them.

  • Mark

    Steve, I agree that unfettered majorities are a bad thing, which is why we have a constitution to limit what the majority can do. The problem is that constitution isn’t perfect. It was written by the majority at a particular time.

    Petticoat Philosopher, when I say they can amend the constitution, I’m not referring to a literal amendment, I’m saying that a supreme court ruling which effectively changes the law of the land can have the same effect as someone actually passing an amendment that does the same thing. You could have argued that the equal protection clause also could be interpreted as granting the right to vote to women, making the 19th amendment unnecessary. Or a conservative could argue that equal protection extends rights to unborn children.

    The question I don’t really have an answer to is how to distinguish all the different interpretations you could apply to something like that, for good or ill. If it’s just personal opinion, they’re doing the jobs of legislatures. If they’re basing it on what was meant at the time, that’s at least a standard you can apply consistently.

    • Steve

      You are really, really dense. It’s the courts who enforce those limits on what the legislature can do. No one is preventing people from enacting constitutional laws. It happens all the time. And then people sue and the courts say “Nope. You can’t do that”. It’s how the system is supposed to work, yet you don’t want the courts to do their job

  • BabyRaptor

    I can’t say much about the Constitution, because I don’t remember ever thinking about it. But I do remember fairly early on that my thoughts on “hot button issues” were almost always counter to what my grandparents and the church taught.

    For example, abortion. I wasn’t 100% sure on my stance until I had my son, but I had doubts early on that life started at conception, and as such abortion was wrong. Now I’m more inclined to place “life starting” when the fetus can survive completely independent of the mother’s body or machines, and I believe that a woman should have access to abortion until then, no matter what reason she gives.

    I was never against gay marriage. I was always for the environment. I never believed in witnessing, or forcing Christian views into public law.

    My grandparents thought I was just horrible.

  • Joy

    I think “original intent” arguments are dangerous because the world our 18th century forebears lived in was so different than ours, in assumptions, lifestyles, and attitudes; not to mention technology and education. Also, the founding fathers weren’t Prophets of God or anything, but mostly wealthy, educated landowners with a lot of ideas about how to run a country, some of which weren’t all that suited to 21st century life–it would actually be unfair to them to expect their ideas and compromises to be appropriate in all cases 220 years in the future.

    Not only do some fundies interpret the constitution like the Bible, some apparently confuse the 2, if the fine artwork at the link is any indication. (You should view this. It’s hideous and ridiculous but apparently some people like it) :

  • MountainTiger

    Even by his standards, Scalia is on shaky ground with “obviously the amendment does not apply to arms that can not be hand-carried.” “Bear arms” has a broad military connotation; if Scalia wants to exclude artillery on originalist grounds, I would like to see some 18th century citations to that effect.

  • Mark

    Was that directed at me, Steve? If so I feel like we must have talked past each other somewhere.

  • R.C.

    Eh, I’m afraid I think this piece is misguided. There are two different things at issue here, and the surface-level similarity is just that: surface-level. The same similarities would occur any time one discussed two different bits of text being interpreted.

    With respect to the Bible: Serious believers who seriously respect the Bible are required to take a literal view but are forbidden to take a literalistic view, and the difficulty is distinguishing between them.

    For those unfamiliar with the distinction:

    LITERAL: The literal view is literary in its awareness of forms and styles, and thus obligates the reader to take into account colloquialisms and the style of writing being used in order to get at the kind of reaction/understanding the original author intended to produce in his readers/hearers.

    In the Literal reading, the phrase “it was raining cats and dogs” means it was raining hard, and the question of whether it really WAS raining very hard is a matter of deciding whether this is the introduction to a film-noir or gothic horror style bit of writing, where the rainfall is a conventional bit of set-dressing, or whether this is an eyewitness report on a battle, the outcome of which was influenced by muddy terrain and poor visibility.

    LITERALISTIC: All forms and styles and colloquialisms are disregarded in favor of treating the work not in a literary way, but as of the least-figurative literary style imaginable: Something like a list of ingredients on a cereal box or a set of instructions for treating snakebite.

    In the Literalistic reading, “it was raining cats and dogs” meant that any four children who went outside holding a blanket at the corners could snag a household pet for free.

    And it goes without saying, or should, that the vast majority of evangelicals and even a majority of those who self-label as “fundamentalists” use the Literal, not the Literalistic, view. However in some cases there is dispute as to the genre of writing intended in a particular book, and things can get twisted.

    For example, the first three chapters of the book of Genesis. They’re poetry. They don’t rhyme, because the Hebrews weren’t big on that poetical form. But they’re full of parallelism, which the Hebrews were big on. They’re like word-paintings; more closely resembling the lyrics to a 70′s Yes tune than a Wikipedia article. The creation stories (plural; there are two, and while their chronologies are inconsistent from a literalistic point-of-view, they’re perfectly compatible from a literal/literary understanding) are more obviously artsy in their structure than even the book of Job. (There, the obvious artsy-ness comes from people carrying on a conversation by exchanging five-minute speeches, a kind of dialogue which no one apart from Ayn Rand has ever imagined to be realistic.)

    The problem from the fundamentalists’ point-of-view is that even when they make genre distinctions in other books of the Bible (e.g. Job) they feel they can’t do it in Genesis because they worry that points of high theology (God made everything and man muffed his relationship with God through sin) would be “symbolized and analogized away.” They needn’t worry; the poetry read as poetry makes it perfectly clear that these theological points are precisely what the author intended to convey. (Well, that, and a bitch-slap to paganism, in the form of taking anything conventionally associated with gods in the ancient world — sun, moon, stars, earth, seas, creepy-crawly critters — and saying, “Nope, not divine, just an object God made.”)

    At any rate, the Biblical Literalism (read: Literalistic Reading) issue isn’t really the same as the Consitutional Originalism issue.

    The Constitutional Originalism issue is one about preserving the Rule of Law and particularly limitations on the power of government, because these are good things from a social-stability and civil-liberties perspective.

    The Constitution was written in a constrictive way (see Amendment X) to divide powers among the branches, to balance states’ spheres of authority against federal spheres, all to achieve a government that couldn’t do just whatever it wanted. Remember who was writing it and what their complaints had been against the British. The Bill of Rights was engendered by a fear that merely telling the government “This is all you can do, you have no authority to do anything else” was not enough; this is why each of the first few Amendments has a “You Can’t Touch This” feel to it. (Apologies to M.C.Hammer.)

    Now the right reasons that Constitutional restrictions on federal power cease to exist if the Constitution means whatever one wants it to mean. If the government construes “freedom of speech” to mean “you’re free to say whatever you want provided that it’s pre-approved by Congress,” then the prohibition on Congress restricting speech is pretty much overturned. A “living constitution” is another way of saying “a government with no structural impediment to tyranny.” Originalism is seen as a bulwark against that tyranny.

    Now the original Originalism was “Framers’ Intent”: What did Madison et alia intend these words to mean? But the problem with this is that we can’t read living minds, let alone dead ones; and in any case it leads to the question, “Well, what WOULD Madison have thought had he seen our current situation?” …which is so speculative as to become a new form of “living constitution” and a path to unrestrained lawmaking.

    So the new hotness in this area is “Original Public Meaning,” which appeals to the generally understood meaning of the statute as worded when encountered by legally-literate persons of that era. There’s still necessarily a little speculation, but because one is dealing with the public at large’s interpretation rather than the intent of one mind, it becomes a more objective standard.

    I say, “more” objective. No standard is entirely objective when one is doing interpretation, of course. But an appeal to something which is past and which is well known has more solidity than an appeal to imagination or good intent. Thus the “Original Public Meaning” view has less risk of reducing the Constitution to “whatever we want it to mean” than the nebulous “Living Constitution.” They’re both the same on this end of history; but the “Original Public Meaning” is tethered on the other end of history and can only stretch so far, whereas the “Living Constitution” is untethered and pretty much goes wherever the party in power wants to drag it.

    Result: the “Living Constitution” reduces to abject servility to democratic majorities whereas the “Original Public Meaning” allows the possibility that a higher law prohibits three wolves and two sheep from voting on what’s for dinner.

  • Dgsinclair

    The similarity between the docs is that both purport to convey timeless principles, as well as short term prescriptive solutions. The question is, which are which? Of the latter, must we divine the principles behind them, and do those prescriptions still meet those principles and goals in our modern day? And if yes, are the limits and balances associated need adjustment.

    For example, the right to bear arms:
    1. Is this a timeless human right?
    2. If yes, what principles limit gun ownership and use?
    3. What specific rules can we create from these limiting principles, rules that make sense in our day?

    The diff between the Bible and the constitution is that the latter is much simpler. It has principles and prescriptions (as an ‘originalist’ I would argue more of the former), but it lacks historical narrative, poetry, apocalyptic symbolism, aphorisms, and other literature types that both fundies and liberals misinterpret.