Okay, I lied. There's no kitten here. But how else could I get you to read this? Have you seen how many hits kitten videos get on You Tube? If I had titled this honestly - something like "An Overlong, Repetitive Rant About The Theory of Constitutional Interpretation" - I doubt you would've clicked. As it is, it's going to be very hard to keep you here. I mean, after all, you could be updating your facebook status right now or checking out Roger Ebert's latest tweet. Anyway, here goes nothin'. Make it to the end and I'll give you a parting gift.
So it became national news recently when comedian Glenn Beck used the bully pulpit of his Fox News television program to urge people of faith to leave any house of worship which advocated "social or economic justice". Why on Earth would he loudly and publicly take such an anti-Gospel position? Because those terms, Beck told his audience, are really code for Communism and/or Nazism.
Wow. Just wow. It was a stunning, confounding proclamation, even for a clown like Beck. Because seriously, the New Testament is about social and economic justice more or less in the way that Schindler's List is about the Holocaust. Picture a studio executive saying "Make that movie, Steven, but without any suffering Jews in it" and you get the general idea.
This time, the man who earns his daily bread by going too far went too far, as evidenced by a vocal reaction from many prominent religious types. It seems on its face to be a fairly clear cut case of one wacky guy shooting his mouth off and not necessarily speaking for others, but there's something far more interesting at play here. In fact, this Biblico-Becktian brouhaha got me thinking about the United States Constitution.
See, there are two schools of thought when it comes to interpreting the Constitution. Conservatives tend to favor what is known as "constructionism". Strict constructionists argue that there should be no reading of the document other than that which reflects the unerring intent of the original framers. Never mind that there's no particular reason for considering the 55 politicians who drafted the document, or the 39 who signed it, to have been wholly infallible; never mind that the framers themselves were often wildly at odds with each other; never mind that they couldn't possibly have envisioned the various issues that might crop up in future generations. Despite all of this, the rigidly doctrinaire constructionist crowd doesn't believe you have, say, a constitutional right to privacy if those specific words weren't written down in the original document or in one of its many ratified amendments.
Liberals tend to be more "developmentalist", viewing the Constitution as a living, breathing document, the specific clauses of which can be interpreted more widely in light of modern legal dilemmas which were unforeseen at the time of its 1787 adoption - or as Chief Justice Earl Warren put it, "the evolving standards of decency that mark the progress of a maturing society". It would be hard to argue that the framers wouldn't eventually have come to a consensus on issues such as privacy, or reproductive rights, had those been 18th century concerns, but that is exactly how constructionists - or their only marginally more open-minded cousins, originalists - expect us to behave; if it didn't exist then we must pretend it doesn't now.
This progress-hindering position is complicated by the existence of the Ninth Amendment, which states that
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people".
Meaning just because the document doesn't specifically grant that aforementioned right to privacy, doesn't mean one doesn't exist. In fact, this language was specifically added by those fabulous, supposedly fault-free framers to prevent die-hard constructionists from later attempting to apply the maxim "Expressio unius exclusio alterius" ("the express mention of one thing excludes all others"). So when a conservative protests "Where in the Constitution does it say you have a right to an abortion?", one could quite reasonably point to the Ninth Amendment and say "where does it say I don't?"
The constructionist argument is further complicated by the fact that the original framers' specific intentions are, by definition, open to interpretation (which essentially is the difference between a constructionist and an originalist, the latter of whom will at least acknowledge some wiggle room). Whereas a constructionist wants a strict reading of original intent, an originalist will claim to want a reasonable one; both, however, demand adherence to what they see as the specific designs of the framers, frozen in time in 1787. Or at least pretend to. As University of Tennessee College of Law Professor Thomas Davies has written about the Court's current conservative majority:
"As practiced in the Supreme Court, originalism is merely a rhetorical pretense under which justices justify their personal predilections by falsely claiming fidelity to historical meaning, while actually ignoring or altering the historical meaning."
In other words, conservative judicial activism. Despite the many problems with the "framers' intent" position, both in theory and praxis, it has become a Republican shibboleth. As far as the right is concerned, (alleged) fidelity to historical meaning is the overriding concern of Constitutional interpretation.
Which brings us back to Glenn Beck and the Bible. Yes, the Bible. The Bible may be the only document that many uber-conservatives will assert that they value more than the U.S. Constitution. When George W. Bush was asked at a 1999 GOP presidential debate in Des Moines who his favorite political philosopher was, he didn't say, for example, "Thomas Jefferson", a Founder and early proponent of laissez-faire capitalism. Instead, he answered "Jesus". Several of the other GOP hopefuls then fell over themselves to agree with the choice. Left unexamined was the fact that from a political standpoint, Jesus was a die-hard liberal who preached nothing if not pacifism and the kind of social and economic justice lamented by Beck. He was also an anti-money demagogue who routinely demonized the wealthiest among us. So why the philosophical incoherence?
When it comes to the Bible, you would think that these same conservatives - for whom "original intent" is the whole ball of constitutional wax - would insist on a close reading to glean its "framers' intent" and that they would then behave accordingly. Well, not so much. Which is a funny thing. Because even more than the Constitution, the intent of the language in both the Old Testament and New is remarkably, inarguably clear.
"Six days shall work be done, but on the seventh day there shall be to you an holy day, a Sabbath of rest to the Lord. Whosoever doeth work therein shall be put to death". - Exodus, 35:2
A strict constructionist, or even an originalist like Antonin Scalia, would have to maintain that the framer's intent was that anyone working on the Sabbath should be put to death. A developmentalist like Earl Warren, however, would argue that modern morays lead us to a new conclusion, perhaps only that one should honor the Sabbath as a day of rest. It is this "interpretation" that we as a society now widely accept. Score one for the activist liberals.
"Do not wear garments woven from two types of thread... do not cut the hair at the sides of your head or clip off the edges of your beard... if a stranger sojourn with thee in your land, do not vex him. But the stranger that dwelleth with you shall be unto you as one born among you, and you shalt love him as thyself; for ye were strangers in the land of Egypt". All followed by the admonition "Keep all of my decrees and all my laws and follow them. I am the Lord". - Leviticus, 19:19, 19:27, 19:33 and 19:37
God's intent in Leviticus 19 is not really open for interpretation: a modern adherent must be staunchly pro immigrant and be so while never getting a hair cut or, as the famed Letter To Dr. Laura cleverly notes, wearing a cotten/polyester blend. Doesn't exactly sound like Clarence Thomas, does it? And yet Thomas is an originalist whose entire legal world view, like most conservatives, is all about framers' intent. I don't get it. Isn't God the original Founding Father?
Some would quibble that I'm talking Old Testament, and there's a New One. So here are just a few things Jesus said about money and wealth:
"Jesus said unto him, if thou wilt be perfect go and sell that thou hast, and give to the poor, and thou shalt have treasure in heaven: and come and follow me." - Matthew 19:21-22"No one can serve two masters. Either he will hate the one and love the other, or he will be devoted to the one and despise the other. You cannot serve both God and Money." - Matthew 6:24"People who want to get rich fall into temptation and a trap and into many foolish and harmful desires that plunge men into ruin and destruction. For the love of money is a root of all kinds of evil... but you, man of God, flee from all this, and pursue righteousness, godliness, faith, love, endurance and gentleness." - Timothy 6:4-12"He who oppresses the poor to increase his wealth and he who gives gifts to the rich--both come to poverty." - Proverbs 22:16"Go to now, ye rich men, weep and howl for your miseries that shall come upon you. Your riches are corrupted, and your garments are motheaten. Your gold and silver is cankered; and the rust of them shall be a witness against you, and shall eat your flesh as it were fire. Ye have heaped treasure together for the last days." - James 5:1-3"Then Jesus said to his disciples, "It is hard for a rich man to enter the kingdom of heaven. Again I tell you, it is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of God." - Matthew 19:23-24
And, of course, the biggie:
"Then He will say to those on his left, 'Depart from me, you who are cursed, into the eternal fire prepared for the devil and his angels. For I was hungry and you gave me nothing to eat, I was thirsty and you gave me nothing to drink. I was a stranger and you did not invite me in, I needed clothes and you did not clothe me, I was sick and in prison and you did not look after me.' They also will answer, 'Lord, when did we see you hungry or thirsty or a stranger or needing clothes or sick or in prison, and did not help you?' He will reply, 'I tell you the truth, whatever you did not do for one of the least of these, you did not do for me.' Then they will go away to eternal punishment, but the righteous to eternal life." - Matthew 25:31-46
How must an originalist view these biblical admonitions? There is only one obvious answer: Jesus was a passionate advocate for the poor, distrustful of the wealthy, and if you don't look out for the needy, the sick, the homeless, even the prisoner... you're going straight to hell. Oh, and those of you who would give tax breaks to the rich? You shall come to poverty. Yet a Glenn Beck seemingly has no problem calling for Christians of all stripes to ignore Jesus' clear words in favor of a modern, relativist reading of The Bible more attuned to our present day, evolved needs and beliefs.
American conservativism has bastardized the book's original lessons so drastically that there is now even a Prosperity Gospel, propounded by the likes of Benny Hinn and Joel Osteen, which goes as far as to argue that Jesus blesses his believers which riches; gifts of health and wealth to which they, as his faithful followers, are clearly entitled. No matter that this flies in the face of an originalist reading of Christ's own words. This is exactly the sort of "creative interpretation" of the Bible that conservatives rail against with the Constitution... and yet when it comes to their own most sacred text, such an über-liberal view is de rigueur.
So the questions beg to be asked: how is it that to a conservative mind, what is supposedly the literal, unerring Word of God is open for miles wide interpretation, but the creation of 55 warring politicians must be narrowly defined as if it were the unerring Word of God? How can they believe that the framers were perfectly clear when they were vague but that their Lord and Savior needs an army of interpreters when he was perfectly clear? God is not infallible... but some liberal lawyer named Rufus is?
I guess this leads to one inexorable conclusion: either progressives have been right all along to employ a broader interpretation of the Constitution - one that, like Glenn Beck's view of the Bible, evolves along with society - or conservatives give infinitely more credit to the Founding Fathers than they do their Heavenly Father.
Thank you for getting to the end of this rant. As a gift, I give you this.
Enjoy. You deserve it.
