Constitutional Originalism, Biblical Fundamentalism, and Church Confessionalism: Amy Coney Barrett and Secularized Theological Concepts

Constitutional Originalism, Biblical Fundamentalism, and Church Confessionalism: Amy Coney Barrett and Secularized Theological Concepts October 19, 2020

Let’s start with church confessions. Not all churches look to the same thing for their organizing authority. Of course most Christian churches look to the Bible (and the Christ they encounter there) as the ultimate authority, but the way that is clarified varies by tradition. Might be the pope. Might be a prayer book. Might be the experience of the Holy Spirit.

For Lutherans it is the confessional documents. Lutherans have had, ever since the 16th century, a closed set of confessions that are understood to be the texts that orient preachers and the church toward right theological and ecclesiological commitments.

You can read the entirety of the Lutheran confessions at a free online page. Or you can get yourself a copy of the Book of Concord. I recommend the latter, as the translation is better and it includes great commentary. If you’re a Lutheran and have never read the confessions, you’re honestly in for a treat. They’re fascinating.

A few other confessional churches do the same. The Reformed have confessions as well, and have kept their confessional canon open, thus including new texts written up into the 20th century like the Barmen Declaration.

Any denomination that looks to confessions as an interpretive lens for reading Scripture and understanding God as Trinity ends up asking: to what degree are these confessions normative?

We might ask: Are the confessions true inasmuch as they faithful to Scripture? Or… are the confessions true because they are a faithful interpretation of Scripture?

This is a long-standing debate among Lutherans. Just google confessional Lutheranism and quia vs. quatenus to see what I mean.

However, this debate is not isolated from wider theological and cultural discussions.

Take, for example, Biblical fundamentalism itself. In a wider purview within Christianity than the debates of confessional churches (admittedly, a demographically tiny percentage of total Christianity) is the debate about fundamentalism.

We can ask a question of Scripture similar to the one asked of the confessional documents: Is Scripture the Word of God because it is literally the inerrant and inspired voice of God? Or is it the Word of God inasmuch as we encounter Christ or God’s word in and through it?

Fundamentalists tend to argue the former. Most mainline Protestant traditions, as well as Roman Catholicism and Eastern Orthodoxy, and probably Pentecostalism, argue the latter. And all these do so because they have additional resources of various kinds that they recognize as interpreting Scripture.

One might say that the bumper sticker for fundamentalism holds true: “the Bible says it. I believe it. That settles it.”

Whereas the bumper sticker for everyone else reads: “the Bible says it. I interpret it. Context matters.”

Without getting into all the hoary details (the debates between fundamentalists and non-fundamentalists are long-standing, fraught, and seemingly intractable), the big difference is the extent to which we recognize that there is no simple way to read the Bible (or any text for that matter) literally, because everything is always being interpreted and translated by the reader.

There’s a distance to be traveled. Non-fundamentalists don’t think this is relativism, it’s just reality. Fundamentalists tend to think there isn’t really a distance, and any arguments introducing such distance are a form of relativism.

Now, this is where things get interesting. One of the great jurists of the last century (a complicated figure to be sure), Carl Schmitt, argued the following:

“All significant concepts of the modern theory of the state are secularized theological concepts not only because of their historical development – in which they were transferred from theology to the theory of the state, whereby, for example, the omnipotent god became the omnipotent lawgiver – but also because of their systematic structure, the recognition of which is necessary for a sociological consideration of these concepts. The exception in jurisprudence is analogous to the miracle in theology. Only by being aware of this analogy can we appreciate the manner in which the philosophical ideas of the state developed in the last centuries.”

You might want to read that paragraph a couple more times before continuing. I know I’ve had to read it many times to get my head around it.

Basically, Schmitt is saying that the modern nation-state gets its concepts from theology. So, for example, we don’t always know how to apply the law ourselves. So in the cases when it isn’t clear that yes, you were speeding, so yes, you pay the fine, we seek out a miracle to resolve the reality, and the miracle is a judge, that is, jurisprudence.

So consider constitutional originalism, famously espoused by Amy Coney Barrett, nominee for the U.S. Supreme Court, and also by the judge she looks up to, Antonin Scalia.

Originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding “at the time it was adopted”.

Or, in her own words, “In English that means that I interpret the Constitution as a law,” she said, “and that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it.”

This concept appears reasonable, at least on some levels, because honestly all interpreters of texts try, to some degree, to understand the text in the way it would have been originally understood by its first readers or hearers. It’s a crucial first step in interpretation.

But originalism takes things a step further, and generally attempts to then apply the constitution based on this originalism, disregarding (it seems) all the intervening centuries and developments.

Originalism is fundamentalism translated into the modern theory of the state. It’s quia confessionalism. It essentially secularizes the sacred treatment of texts, acting as if the constitution were the Bible.

Commentators have pointed out, for example, that the original understanding of jurisprudence at the time of the adoption of the Constitution assumed women could not vote or serve on the court.

That’s just one tragic irony of Amy Coney Barrett espousing originalism.

But it does illustrate the problem and shows how and why it is directly related to fundamentalism and confessionalism.

Those of us who consider ourselves faithful readers of the Bible, the confessions, and the constitution, do not believe that recognition that “interpretation is happening” is a form of relativism. Rather, we see it as an important step in right interpretation. It’s called hermeneutics, and it’s a crucial thing in all reading of texts: to study carefully not just the text, but our science of interpretation itself.

Fundamentalism, confessionalism, originalism, they all “pretend” we can be interpretation free. They disregard development. They turn texts into dead letters. 

Amy Coney Barrett says she cannot update or infuse the constitution with her own policy views. Those of us who don’t agree with originalism argue, “It’s impossible for you not to. And honestly if you think you aren’t, that’s even more dangerous than doing so intentionally, because you’re fooling yourself and trying to fool others.”

The same then goes back to biblical fundamentalism and confessionalism. In both instances, the readers of the confessions or the Bible fail to recognize (as all hermeneutics points out) that in the reading event, there is a text, but there is also a reader, and a reading community, and these must also be considered during the act of interpretation.

So finally, back to the confessions. One of the great strengths of having a book of confessions is simple: it stands as a resource not to lock us into 16th century ways of reading the Bible, but rather by being a confessional church, it points out that the church has always historically done the hard work of interpreting the Scriptures for its own moment.

Preachers can still use such texts to gain insight into Scripture. I did so just this past Sunday when I connected Luther’s explanation of the first commandment in the Large Catechism to the gospel lesson on Caesar and taxes.

But if I’m locked into attempting to literally maintain the confessions for church in the 21st century, I end up doing a disservice to the confessions, to Scripture, and to the living nature of the church which, by the power of the Holy Spirit, never remains stuck in the past or locked ancient texts, however beautiful they might be.

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