The purpose of a slender volume by Jaroslav Pelikan is to examine the methods and loci of interpretation of (1) the US Constitution in American society (with a nod to other components of American scripture, such as the Declaration of Independence and the Gettysburg Address) and (2) the Bible. Pelikan wants to describe how it works in practice when a people or community adopts a particular constellation of text as its normative Great Code.
Jaroslav Pelikan, Interpreting the Bible and the Constitution. A John W. Kluge Center Book (Library of Congress). New Haven and London: Yale University Press, 2004
It is hard to think of anyone more qualified than Pelikan (7 Dec 1923 – 13 May 2006) to do the work of description. His erudition in the field of history of Christian doctrine is legendary. He was also an accomplished legal scholar.
Pelikan notes that when pressed
about the nature of ‘dogma’ as the normative teaching of the church in relation to the doctrinal authority of the Bible, I have found that the most helpful analogy for it is the authority of the United States Constitution in American society and its complex relation to the standing of the Supreme Court of the United States as its official and decisive interpreter. (p. 2)
He goes on to argue that the following paragraph applies equally to the Bible and American scripture (the Declaration of Independence; the Constitution, especially the Bill of Rights):
There is a familiar and venerable text, centuries old by now, which is the product of multiple authorship (although even after generations of historical research and literary analysis we are not always in a position to determine with absolute precision just who wrote, or rewrote, which parts of it). The text was originally composed under very specific circumstances, which modern historical scholarship has done much to illumine. But far transcending the history of its original composition is its official standing ever since, for it has been adopted by a community as its normative Great Code, and therefore as occupying a position that in some profound sense stands beyond its own history: ‘not spake but speaketh!’ That normative status is based on the assumption that it can be applied to any and all of the radically changed situations of later times, many of which the writers who originally framed it could not themselves conceivably have foreseen. Every official action of the community thus had the obligation of conforming to it, or any rate of not violating it, and of demonstrating that conformity when challenged to do so; and members of the community are under the strictest possible obligation to obey it. Therefore its words and phrases have for centuries called forth meticulous and sophisticated – and sometimes painfully convoluted – interpretation, as well as continual reinterpretation. By now, this interpretation has grown into a massive corpus of authoritative, if often controversial, commentary. Yet the text does not itself prescribe the method of such interpretation; nor does it specifically identify the authoritative agency that bears the ultimate responsibility for determining the binding interpretation, much less for revising it. (pp. 4-5)
What the text itself does not prescribe, communities and institutions structure in analogous ways. Pelikan distinguishes four loci of interpretation of normative Great Codes:
(1) We the people (p. 22), or, in religious diction, the consensus of the faithful (consensus fidelium) understood, in practice, to be the continuing experience of the Holy Spirit through his faithful people in the Church, by definition, a witness to the never-changing truth of Scripture.
(2) “[A]cademic scholars of the professoriat with their historical research and their footnotes, who are a learned and often quarrelsome lot” (p. 27). Pelikan nonetheless points to the ivory tower nature of current research, quoting Richard A. Posner,: “The real significance of constitutional theory is, I believe, as a sign of the increased academification of law school professors, who are much more inclined than they used to be to write for other professors rather than for judges and practitioners.”
(3) “The professional and certified practitioners with their briefs and their sermons” (p. 29). Pelikan notes with his usual acumen: “persuading the hearer by these professionals has always entailed using Scripture to present ‘the character of the speaker,” ethos[;] to form a bond with ‘the frame of mind of the audience,’ pathos[;] and to enhance ‘the structure of the argument,’ logos. The same three components, as they are formulated in Aristotle’s Rhetoric, pertain to the function of the lawyer addressing a judge or a jury as barrister” (pp. 29-30).
(4) “The hierarchy with their robes and decrees” (p. 30). Hierarchy is a much-maligned word, but as Pelikan points out, its technical meanings include (1) a collective body of ecclesiastical rulers, more exactly, a synod or a council charged with formulating teaching and laws in the process providing a normative interpretation of Scripture; and (2) the justices of the Supreme Court who are charged with providing a normative interpretation of the Constitution.
All of this seems a fair description, but is it a good thing that a polity or community regulate its life in this way, by attributing authority to a text from a bygone age, however much in need of appropriation and re-interpretation in the present? Pelikan is convinced that it is a very good thing. He quotes his mentor, Edward Hirsch Levi, who had this to say in his Introduction to Legal Reasoning:
constitution worship . . . gives great freedom to a court. It can always abandon what has been said in order to go back to the written document itself.
It also the case, as Levi notes, that “[a] constitution cannot prevent change,” but change, however controversial, such as allowing or disallowing gay marriage or specific activities on the Sabbath, is only possible through appeal to the Bible or the Constitution by locus of authority #4, whose appeal is nonetheless subject to review and verification by loci of authority #1- #3.
What Pelikan does not do is discuss the tendency of believers, for the sake of the common good, to appeal to Scripture in order to make an argument for a particular law or policy; or the tendency of many in the electorate to think of the Supreme Court in the last decades as engaged in a power grab in which the justices merrily strike down “laws, traditional institutions, and practices” (in the diction of law professor Steven D. Smith) the views of the electorate be damned. Those kind of tendencies hover in the background of the argument of Smith’s recent book, The Disenchantment of Secular Discourse (Cambridge: Harvard University Press, 2010), whose central thesis I touch on here.
It is not too much to say that the ongoing appropriation of the Bible and the Constitution determines, more than anything else, the shape of American civilization. Are current tendencies and approaches to the interpretation of said texts subject to criticism? Of course they are.