The Bible, Our Constitution?

The Bible, Our Constitution? July 25, 2012

Some Christians do treat the Bible as a lawbook (I wrote about this in Blue Parakeet) and in Brian McLaren’s A New Kind of Christianity a challenge was given to treating the Bible as a constitution. By which Brian mostly meant a lawbook, but I have been reading Jack Balkin’s book, Living Originalism (Harvard, 2011), and I wonder if treating the Bible as our “constitution” is a problem.

To begin with, “constitution” is more than a lawbook. (And Brian focuses on the legal side, and he also focuses on practicing the Bible as a legal constitution and he advocates the model of the Bible as a “library,” which is a salutary category.) Even more, the US Constitution is alive.

So today a few thoughts from my reading of Balkin’s book.

Do you think we should see the Bible as our “constitution”? What do you think of seeing the gospel as the “framework” that shapes faithfulness to the gospel in churches? What does this approach to the Bible say about ongoing development of the Bible or of the value/authority of ongoing interpretation? Perhaps another way is to ask this: If the Bible is/contains our constitution, what “part” (or whole?) is the constitution? The Bible as a whole, the NT, Jesus, Paul, or the gospel itself?

And, of course, I welcome comments on whether or not you like “living constitutionalism” — that is, that originalism and ongoing adaptations and expansions are welcome. [But I suspect there is some analogy here with the Bible. Agree? I’m open to that discussion too.]

First, Balkin’s approach to the US Constitution is opposed to Justice Antonin Scalia’s original intent and expectations-originalism. (Law professors, folks, trade in lots of finely-defined terms, so be patient; I promise this will make sense and be of help to Bible reading.) That is, the aim of the court is to interpret the original intent, not of the framers but of the text itself, and to see the law’s interpretation contained by how it was originally applied. He thinks Scalia is — in Scalia’s own terms — a “faint-hearted originalist” (8).

Second, Balkin sees that approach to the US Constitution to be what he calls “skyscraper originalism.” That is, the US Constitution is more or less complete as it is; judges are to hold citizens in constraint to that Constitution. Balkin’s approach is “framework originalism.” Balkin thinks the approach to law is called “text and principle” and it requires both fidelity to the original text and open to constitutional construction. That is, the US Constitution intends and enables and empowers interpreters to get to the bottom of the text and to carry that text further in each generation. The US Constitution mentors society to live according to its light.

Third, the US Constitution is a framework for politics in our culture. Each generation must live out the original Constitution with fidelity to the text. The Constitution has three kinds of text: determinate rules (for all time; as in the President must be 35 yrs old), standards (“no unreasonable searches” — which have to be discerned by the citizenry and courts), and principles (which are more open-ended but the fundamental textual principle that must be used).

Fourth, society’s changes — like suffrage for women, the New Deal, the civil rights movement — create conditions in which the US Constitution must now take up abode and speak all over again in new ways. Genuine achievements in culture yield new achievements in the court as it finds adequate basis in the US Constitution (would to God we could do more of this for gun laws in the USA). So he’s proposing a bottom-up approach to living originalism.

Fifth, at the heart of interpretation is not just the court and the judges; at the heart is the citizenry.

Sixth, the original expected application of the US Constitution is not binding; but the Constitution itself is. Law is about ongoing interaction of culture with the Constitution and as such it builds up a history of interpretation that becomes interpretive tradition on how to apply law.

I now make my case that the Bible can be seen as a “constitution” (not as lawbook) and that perhaps framework originalism is a worthwhile hermeneutical approach to Bible reading:

1. I propose to think with you that the gospel — see King Jesus Gospel — is the constitution. It set in motion attempts to live out the gospel in various contexts, those attempts being the NT books. (We can expand this to include non-books like liturgy, etc, of course, but for now we’ll stick to books in the NT.)

2. This would mean the New Testament itself is the build up of “constitution construction,” or as instances of applying the original gospel to specific conditions. That is, the gospel is the framework and the New Testament is filling out of that framework.

3. This would then mean that each NT book is an instance of the gospel (a) in a particular context/setting, (2) by an apostolic witness to the gospel, and all of this occurs (3) as part of the Israel-Jesus-Church Story, thereby making the “constitution construction” to include the Old Testament as instances and preparations of the gospel.

I am of course dancing on the floor of the lawyers; if points need clarification, speak up… but my intent today is to explore the Bible as constitution, not to take a stand on legal issues.

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  • Stephen W

    By defining the Bible as a constitution, I think you make the same mistake as those trying to use the Bible as a lawbook. In both cases the Bible is made a template for living, which I don’t believe it is (or could possibly be). To make it so is to place the emphasis in the wrong place. As I see it the Bible points to Jesus – and Jesus is the point. To try to live from the Bible rather than from Christ is to turn the Bible into yet another idol.

  • scotmcknight

    Stephen W, fair enough. Tell me how the Bible functions in your Christ-shaped faith. Perhaps we should think of Christ as the center of the Bible that is our constitutional framework?

  • phil_style

    Constitutionalism is such a legal mindset- rooted in 16th-17th century nationalism movements. The language of constitutionalism is antithetical to Christianity is so many ways. I don’t see this metaphor as very helpful.
    What parts of the bible become “constitutional”? Who get’s to defined the “gospel” in this context?

    This kind of language is also nonsensical/confusing to those of us who:
    1. Are not patriots
    2. Live in countries without constitutions, or at least without written ones, or with highly flexible ones

    No, the Bible is a holy book, a sacred tradition and a religious and political record. It is ancient literature, it is poems and emotions it is a tale of evil, a tale of good, a hope and a despair. It warns, chastises, praises and confuses. It steps into death and pain. It argues with itself, one minute siding with the powerful elite, the next with the innocent.

  • scotmcknight

    I come back: “holy” — what does that mean? “tradition” — sounds stultifying to many. “religious and political record” — sounds like a newspaper or the report of a journalist. “ancient literature” — again, problems.

    And … “it is poems … [to] innocent” could be as much of an evolving framework constitution as anything you’ve said.

    I come back with this: The Christian faith is “constituted” by the Spirit of God at work through the apostolic witness to Christ, which is embodied in the New Testament as Scripture (no?), so I’m not so sure the word “constitution” doesn’t have some merit. To be sure, it is not a completely adequate word, but at some level it helps and expresses.

    A claim: to the degree our faith is established by and constrained by Scripture, to that degree we can say Scripture is our “constitution.” What say you?

    And, Phil, flexibility is precisely what Balkin is arguing for.

  • scotmcknight

    Since it may well take on a life of its own, I wonder Phil if “legal mindset” is precisely the problem. I opened the post with that issue, and said Brian equated constitution with lawbook, but I wonder if “legal mindset” is too narrow. The USConst is for the framers a “charter” and a “map” and a “framework” … in other words, not just laws — to be sure it is legal etc — and rules but a vision for a country from thenceforth. I’d like to add that to the mix.

  • DRT

    Right now the right wing is glorifying the constitution in much the same way that they glorify the bible. So the constitution takes on holy characteristics like a very high view of scripture. So, it seems to me that attempting to nuance the equivalence risks that no one will listen to the nuance. In other words those who believe in the sacred view of the constitution will see this as confirmation.

    I believe you may be right, I just think this approach is dangerous.

  • Rob Dunbar

    The thing that makes the Constitution a living document, more than anything else, is that it is amendable. You mentioned women’s suffrage and civil rights. These did not evolve through new judicial interpretations; they are amendments. Is Christ amendable? If he himself is the Word, the full and true revelation of God, then the point of Christianity is understanding God revealed in Christ as the Spirit of God makes Christ known to us. I’m not so sure there’s common ground between the two concepts.

  • Scott Foster

    As an attorney and a Christian, my knee-jerk reaction would be to say that of course treating the text of the Bible in manner analogous to the Constitution would be unwise. Though, after reading through your description of Balkin’s interpretative framework, I think the analogy is closer to compatible with a few minor problems.

    I would like to push back on Balkin’s characterization (or Scot’s characterization of his characterization) that “Law is about ongoing interaction of culture with the Constitution and as such it builds up a history of interpretation that becomes interpretive tradition on how to apply law.” It is true that as cases are decided by judges on specific issues, and that judges references these previous cases when making their own decisions, but I think that stare decisis (the judicial doctrine that says judges should apply prior precedent) is very flimsy (and often ignored) leaving the interpretative tradition of the Constitution very susceptible to a wide variation of meaning. What you have left is a text with very little story standing behind it. (You didn’t list any specific examples but I would be curious to see specific examples of the “principles” of the Constitution – perhaps this would alleviate this concern somewhat)

    By contrast, the New Testament accounts as “constructions” of the gospel are far more authoritative in how Christians interpret and live out of the gospel today. The gospel is more than rules, standards, or principles but as you have previously demonstrated the “Israel-Jesus-Church Story.”

    I think another problem between the analogies is that the Constitution may be interpreted by litigants and others seeking to shape the Constitution to conform to their own “story” of what it should mean. Though not all Christians might agree, I think we come to the “constructions” of the gospel in the bible and hope to be shaped by them.

  • Bob

    I agree with a lot of what Phil posted. One could use the words “holy” or “sacred”, meaning that it has been set apart by men as something special. “Tradition” in that is indeed passed on generation to generation as is (pretty much). It sounds like Scot is more hung up on the perception than the content of Phil’s post.

    Step back for just a minute – how did the Bible come to be in the first place? David is off writing songs – probably feeling very “inspired” as most composers do when the “muse” lights upon him, causing him to experience a rush of thoughts he puts down with his own flair, some of which even he doesn’t understand as he writes. Very common among artists. But what about the guy in the palace simply documenting what happened historically in the kingdom? Did he feel that same rush of inspiration? I strongly doubt it.

    What about Solomon collecting proverbs that other people came up with (and adding a few of his own) – did he feel that same inspiration? I doubt it. Or the guy in Babylon who finally put the oral tradtiion of Moses down as the Torah. Or Paul writing letters to correct problems in churches. Or disciples writing a biography of Jesus with a particular audience in mind? Just what does “inspired” really mean?

    The implication I was taught in the church & religious schools is something akin to magic – that God somehow magically wrote the whole Bible but happened to use human authors their own distinctive voices over a long period of time. But what if that’s poppycock? What if it really was just men writing down their perspectives (sometimes feeling “inspired”, sometimes not) over time that other men viewed as special – sacred, holy – and bound together into a single volume (even disagreeing over which items should be included in that volume)?

    The only perspective that makes sense to me anymore is that it is truly a work of men from their perspective in that time and place (which for me resolves things like genocide, slaverly, wives as property, and the fear of a monster God who throws people into eternal conscious torment simply because they never heard the name of Jesus and are therefore doomed). It makes more sense to me that Joshua convinced himself he should “slay every living thing that breatheth” and said God told him to do it, even though the God we see in face of Jesus would never say such a thing.

    The only way the Bible could be considered a constitution is if it actually was written by God himself and a single, cohesive, infallible, inerrant work. And I just can’t buy that anymore.

  • Rodney Reeves

    I’m wondering if the issue is grounded in genre as much as interpretation. In other words, if the U.S. constitution were primarily a collection of stories generated by a particular people over several hundred years, then we might find more hermeneutical kinship. Genre recognition is key to interpretation, no? That’s where I keep getting tripped up when I think about similar approaches to these two “documents.”

  • Stephen W

    scotmcknight #2 – This is all stuff I’m trying to work out at the moment 🙂 Hence the asking questions, pushing buttons, trying to gauge where other people are at.

    The big question for me right now is “What is the Bible?” How does it function, where does it fit, how does God want me to understand it?

    And this has lead me to all sorts of questions such as “Why do we claim the Bible to be the word of God?”, “Why do we see the Bible as foundational to our faith?”, “Why do we claim the Bible to be inerrant/infallible etc.” The Bible claims none of these things about itself.

    And it seems that interpretation of scripture is what divides the followers of Jesus, which makes me wonder if we’ve missed the point somewhere. Was a Bible-based religion really what Jesus had in mind?

    Anyway, I’m finding reading yours (and others) posts & comments very interesting, sometimes enlightening and often entertaining whilst on this journey.

  • Bob

    @Stephen W – some argue that “the Bible” does claim to be inerrant/infallible, etc. But that’s circular reasoning for one. Secondly, it’s usually applying the terms”word of God” or “scriptures” as though it really means the 66 books later agreed upon as “canonical”. But “scriptures” to NT authors meant the OT, and “the word of God” to OT people (and many NT people) meant more than just what was written down as “scripture”. I just don’t think one can say definitively that God’s word is limited only to writings approved by Church Inc.

    Perhaps “the word of the Lord” is that which resonates in your innermost being; that’s admittedly subjective, but what do we really KNOW that we haven’t experienced? Sometimes it’s taken a leap of faith in order to really know, but I think sometimes it also takes a leap of doubt away from what mere men say about God. Makes for an interesting journey, that’s for sure.

  • Scot,
    I come from a church tradition (Stone-Campbell, Restoration, Disciples/ Christians/Church of Christ) that saw the Bible as a “constitution” or “blueprint”. As an early 19th century movement birthed in the new American republic, the constitutionalist approach would work as a framework on how to do church (evidenced by the bicameral division of church leadership into elders and deacons).Using Balkin’s terms, the movement fell into a “skyscraper originalism”. While many in 200+ years of the movement have moved away from this approach, many still hold to it. While the bulk of this constitutional approach has been about church structure and institutions, some have applied this to the gospel and have developed standards for admittance into the kingdom (especially baptism).
    I understand your desire to apply a “living framework” with the King Jesus Gospel to show a deeper Christian spirituality that also allows a greater diversity among Christians. Can we keep from falling back into a “skyscraper” mentality that codifies and regulates into a dead gospel? Also, is a constitutionalist framework a very modern way of understanding and application that would somehow suffer the ancient originalism in the text itself?
    Thanks Scot for the discussion.

  • Adam O

    Some confusion seems to be over what question this kind of analogy answers. IMHO, it is at least a reasonable answer to “how does the church continue to utilize Scripture to shape its life together?” While it certainly is not an answer to the question, “What is the Bible?” The genre distinction brought up by others is a good point because clearly the Bible was not constructed in the genre of an enlightenment era social contract. Yet, I think what Scot describes is essentially what many Christians (who feel that the Bible is not only a “rule/law book”) do by taking the Gospel of Jesus as Messiah and Lord, and allowing that story to govern/give framework to their decisions as a Christian people. This, it seems to me, is what Paul/Peter/John do in the epistles, which I believe, set the real precedent for how we apply the Gospel in our contexts as well. Genre may be wildly different, but the application is analogous.

  • Scot McKnight

    Adam O, thanks. You are right. This is not about what the Bible is but how it is used, how it functions, and how it becomes vital in new contexts.

  • Rodney Reeves

    Perhaps I’m being thick-headed, but it seems to me form anticipates function. So, on the one hand, I see Scot and Adam O’s point. In other words, the letters of the NT might be the very place/example of how we should approach a re-contextualizing of the story of Israel/Jesus. But, then again, the constitutional analogy breaks down for me because even the letters are not of the same genre as the constitution. I just can’t get past the genre question. In other words, “law-book” or “constructed frame” may be the way American Christians read the Bible, but neither is sufficient because the approach is prompted by the “genre” of the constitution. Is that a legitimate criticism?

  • dopderbeck

    Facinating! I need to read Balkin’s book. Jaroslav Pelikan also wrote a book comparing Constitutional and Biblical interpretation.

    I like the analogy, with the proviso of course that it’s a rough analogy. I might even say that this is a sense in which the Bible really did influence the Constitution — that is, in the broad notion of a founding text. If the Church’s founding text has been scripture, the liberal democratic state’s founding text is a Constitution.

    And I think it’s also true that the competing heremenutical strategies we see in Biblical and Constitutional interpretation have some parallels — is the text “living,” can we discern a stable “authorial intent,” how do we apply the text to new and unanticipated circumstances, and so-on.

    The key place where the analogy starts to break down, I think, is in the role of the Holy Spirit with respect to scriptural interpretation. Even “originalists with respect to the Bible acknowledge that truly understanding the text’s application requires the “illumination” of the Holy Spirit. Perhaps there’s a rough analogy here in the “spirit” of the nation in relation to the Constitutional text, but there just isn’t the same Trinitarian sense of authority there.

  • Rick

    doederbeck #16-

    “The key place where the analogy starts to break down, I think, is in the role of the Holy Spirit with respect to scriptural interpretation. Even “originalists with respect to the Bible acknowledge that truly understanding the text’s application requires the “illumination” of the Holy Spirit. Perhaps there’s a rough analogy here in the “spirit” of the nation in relation to the Constitutional text, but there just isn’t the same Trinitarian sense of authority there.”

    I totally agree, and am concerned when such conversations leave out that Trinitarian aspect.

  • scotmcknight

    Rodney, along with dopderbeck, you are breaking down this analogy well — and that’s the conversation I wanted to have. Yes, genre is significant and it will shape how we read and use the Bible; the USConst is not the same genre. And dopderbeck’s point about Spirit makes the Bible sui generis in this regard.

    The analogy works for me at the level of “constituting” or “forming” text, though in this case the NT didn’t form the church as the USConst formed the nation, but Story of Israel and Jesus and gospel all framed the community, via Spirit, and that community then came to express itself in Scriptures. But there is a sense of constituting that really does help since it not only constitutes but also governs/guides. I believe many think the NT actually constituted the church and that many treat the Bible just this way.

    The function of the text as authority for new situations is also a rough but good analogy, so it seems to me. What fascinates me in reading Balkin is how hard it is to “amend” the USConst and, apart from the most radical form of Bible-and-Bible-alone folks, it is hard to “amend” or “add to” the Bible, but that’s how Creeds and systematics often function — and the Catholics and Orthodox overtly permit additional texts to function in a more authoritative manner than do Prots — and in this whole issue I find a good analogy to the USConst.


  • kierkegaard71

    A constitution should govern how a government is put together, or “constituted”. Properly speaking, the civil, ceremonial, and moral ordinances of the Old Testament are what constituted the nation of Israel. For the people of God today, it only seems right that the teaching provided by Jesus, the new and greater “Moses”, and explained by the Scriptural writings should govern the church. Of course, this doesn’t answer every interpretive question, e.g. differentiating between commandments that have universal applicability and those that are locally and temporally binding. But seeing Jesus’ teaching as the bedrock “constitution” should be a unifying, and not a divisive point.

  • Rodney Reeves

    Scot, I see what you mean now, esp. “I believe many think the NT actually constituted the church and that many treat the Bible just this way.” That turned the light on for me.

    Would it be fair to say that you’re talking about the sub-structure of the Bible and constitution, seeing how “readers” identify such foundations, then scaffold meaning upon it–whether by rule or by principle? If so, then the analogy works especially well, re: how we build meaning and whether we are willing to admit our scaffolding is tenuous. Now I’m beginning to see the implications of the analogy.

  • T

    Wow; this is a lot to raise for discussion in one post; too much, I think. Let me offer a few thoughts, in no particular order:

    First, Adam O’s comment is very helpful. The issue is use not genre. And there is a good analogy here for use. For instance, lawyers reference prior cases as “persuasive” authority or as “controlling” authority, depending on the jurisdictions involved in each case. But regardless, the process of looking at a prior case (or a prior story in the scriptures) for the purpose of guiding us in the present is very similar to how we use the scriptures. Of course, the charge of “that was then, this is now” can be applied too much or not enough when trying to apply scriptural “precedents” to the present, and there are many more ways to “distinguish” NT situations from our own in an attempt to say that this or that scripture passage is irrelevant to the issue at hand, whatever it may be, but I don’t see how we can use scripture as any kind of “authority” and not employ the kinds of thinking that is common for lawyers who are looking at precedent and/or constitutional authority.

    Second, when I was in law school I thoroughly enjoyed Constitutional Law. Further, when we discussed various theories for how to interpret the Constitution, I was immediately struck at the comparisons to interpretation and use of the scriptures, and I’m sure I was not unique in that experience.

    Third, let’s not forget that the New Testament is also called the new “covenant.” Yes, just as marriage is not merely a legal concept, neither is covenant, but law is part of it. But as Scot has argued, the law itself is not merely a list of do’s and don’t’s with various consequences. Our antinomian tendencies in evangelicalism tend to see anything that is “legal” as bad. But this is simply not the case. One of my favorite legal philosophers, Lon Fuller, describes the law as an ongoing activity of effectively communicating with and leading a society, of giving society helpful guidance “by which they may themselves orient their behavior” and plans, etc. We must deal with the fact that whether our preferred language is “covenant” or “kingdom of God” or “Messiah” or even “Jesus is Lord” the Christian faith is in enterprise in which God is leading and governing and “law” is a necessary part of his governance/guidance.

  • dopderbeck

    Scot (#19) — I’d be careful about suggesting Catholics and Orthodox use other texts to “amend” scripture. To read Catholics’ self-description generously, the Magisterium “interprets” scripture, but scripture remains foundational. The Magisterium for them is in fact the first instance of how the Spirit speaks concerning the meaning of the text. For Orthodox theology, things are a bit different. The text of scripture is central for them but in a way that is more organically embedded into the whole fabric of the tradition. They wouldn’t speak of “amending” scripture nor of other authorities being “above” scripture, but they simply speak of the entire Tradition as authoritative, all of it being part of the Spirit’s speaking, of which scripture is a central part.

  • dopderbeck

    And BTW there are possibly further interesting parallels between the need for and role of Judges in a Constitutional system and the need for and role of a Midrashic / Magisterial/ Priestly / Pastoral apparatus in a text-based theological system.

  • CGC

    Hi David and Scot and all,
    It would seem like the RC Magisterium would be the closest parallel today in all this? I simply hardly see any kind of unity or recognized leadership anywhere else? Even if its only Catholics that recognize this, I see nothing comparable within Protestantism (EO’s I will let speak for themselves).

  • Scot McKnight

    Dopderbeck … I agree, but “amend” can be understood as organic development. I’m reading Levering on Catholic eschatology, and he begins with this very set of issues — of Catholic development and so asks if Catholic theology is biblical? Yes, I’m sure he will say, but just thinking about a topic like purgatory … “amend” not in the sense of correct, and maybe organic, but clearly development — beyond the Bible.

  • scotmcknight

    Dopderbeck, and as I read Balkin — I’m not done — he would argue progressive developments are organic in that they must also be connected to original intent. (Living originalism is the redemptive movement, as I read it, for biblical hermeneutics.)

  • dopderbeck

    Sure but by that light even the Trinity and Chalcedonian Christology are “amendments.”. How about McIntyre: “extensions” of a living tradition

  • Paul

    The analogy provokes a fascinating discussion. One benefit of the analogy is that it helps us to consider that the texts of any constitution or the Bible apparently have authority because human beings as a community on any given day choose to assert and conform to the authority of (portions of) the texts–rather than the texts appearing ex nihilo with a pre-existing condition of authority because the texts were dictated by a supreme being.