Today, the United States Senate will begin confirmation hearings for President Trump’s nominee to the vacant seat on the Supreme Court, Neil Gorsuch. Gorsuch, who currently serves on the United States Court of Appeals for the Tenth Circuit, is a potentially divisive nominee, if for no other reason than the fact that the seat has been empty for well over a year and many of former President Obama’s supporters believe the Senate should have taken action on his nomination of Merrick Garland.
In the modern era, Supreme Court nominations are frequently a highly partisan affair, but the bulk of the day-to-day work of the Court is not: roughly fifty percent of opinions issued by the court since 2010 have been unanimously decided.* Although over half of the court’s decisions are divided, the divide does not always fall along a left/right split. Writers often talk as if major court decisions follow directly from the presumed political preferences of the justices, “conservative” versus “liberal” or “progressive.” The trouble with these labels is that they ignore the fact that in the Supreme Court’s own account of their work, in the text of the opinions issued from the bench, what the justices (regardless of their interpretive predilections) focus their attention upon is precedent, textual meaning, and the intent behind the laws they are called to consider.
*You can view the breakdown of the court’s opinions for every term since 2010 online.
As one commentator has noted, “being a Supreme Court justice is like holding a ‘spork’ and trying to decide whether it is more like a spoon or a fork.”* Given the same set of precedents, legal history, and text, individual justices often reach quite different conclusions about how the law applies. At least since the New Deal, the major interpretive divide on the Supreme Court has been between defenders of “originalism” and advocates of “living constitutionalism.”
*See Lax and Rader, “Legal Constraints on Supreme Court Decision Making: Do Jurisprudential Regimes Exist?” The Journal of Politics 72(2), 283.
To put it very briefly: originalism, as the name implies, argues that in resolving contests over Constitutional meaning, we should strive to implement the intent of the original framers of the text as closely as possible. The political payoff of such an approach is a level of certainty about the limits of political action, and thus a degree of predictability and stability in government for both citizens and legislators. Living constitutionalism, by contrast, sees original intent as the beginning of a conversation whereby the actual clauses are expanded to new shades of meaning driven by present political concerns. This naturally allows the judges greater latitude in providing remedies to aggrieved citizens or in extending rights to new areas of life.[SMS1]
An agreement that a case involves first amendment issues, then does not necessitate every justice rule the same way on the application of the right(s) in question.* Making these judgments fairly is a challenging mandate for fallen creatures. Law is not a machine, and the issues judges decide are seldom unambiguous. If cases could be decided on a mechanistic basis, the entire system could be streamlined simply by replacing judges with computers. No serious person would entertain such an idea, however, for the simple reason that we all recognize the inherent limitations of language and the potential injustice of thoughtless applications of the law without regard for circumstances. This does not mean that precedent, textual meaning, and intent are irrelevant, or that the law is simply whatever the justices say that it is (or should be). Rather, it means that the role of the justice is to sift through the competing facts of the case in light of all relevant legal considerations to discover how the law applies in any given instance.
*See for example, Justice Scalia, joined by Justice Marshall and Justice Blackmun, concurring opinion in James M. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991), at 549.
What’s missing from the public debate over Constitutional meaning is a recursion to first principles. As citizens, we relate to the government through not only the structure but also the premises of the Constitution. In certain ways, the Constitution itself requires us to accept an underlying set of commitments derived from natural law and embodied in the Declaration of Independence that Christians are ideally positioned to champion.
The Word of the Law and the Law of the Word
Christians of all stripes rightly believe that government ought to advance at least some of the issues of justice and morality we hold dear. And although we often fundamentally agree about what those issues are, faithful believers may disagree over the ways in which they might best be realized. In practice, although we look to Scripture for guidance in how to think about these highly contentious issues, to engage with their political aspects we are forced into debates about the nature and role of government itself.
In the American context, such questions center on the Constitution: the institutional structure it creates, but also the rights implicitly and explicitly found in the text. And here we are on much shakier ground: it’s hard to identify much obvious help in Scripture when thinking about constitutional interpretation or what judges should do in a modern multicultural republic. There is a long tradition in Christian political philosophy of thinking abstractly about lawfulness and the elements laws must have to encourage citizens to consider them seriously. Law should be clear so that citizens can understand them. Since it is unjust to hold citizens accountable for breaking laws of which they are unaware, laws must publicized. They should also be framed in a general way, so that as much as possible they apply to all citizens equally. But if we presume that under all but the most extreme conditions, the Constitution itself fulfills these criteria, then these kinds of discussions don’t tell us all that much about what we as citizens should think about it.
While the basic principle found in Romans 13 or 1 Peter 2:13-17 of giving due respect to those who interpret and enforce the law seems clear, we must ask what it means to honor the political sovereign. This is especially challenging in a representative government where we ourselves are that sovereign. Every American citizen has an obligation to interpret the Constitution at least as far as such an interpretation can help guide our political choices. At a minimum, this means we must ask whether to give priority to honoring “we the people” in our historic capacity as represented in the founding, or to honoring ourselves in our contemporary embodiment as represented in electoral returns, public polling, and democratic protest. These two broad instincts inform the major interpretative divide between those who adopt a relatively fixed “originalist” reading of the text and defenders of an evolving understanding of the Constitution as a “living” document. Neither approach is inherently more compatible with Christian teaching than the other, and each can be utilized to defend justice.
Christians might offer something unique to the conversation by uniting originalist and living constitutionalist concerns: as “people of the Book” we understand what it means to live in light of a text. In applying our faith-born intuitions to Constitutional interpretation, we might follow the example of former slave and abolitionist Frederick Douglass. Although Douglass deeply respected the accomplishments of the American people at the founding, he rejected the idea that “the people” in any given political moment were obliged to uphold any particular meaning of any specific clause of the Constitution simply because it could be shown to have been current at the moment of ratification. Instead, he argued that “we have to do with the past only as we can make it useful to the present and to the future.”* Usefulness, for Douglass, is not unprincipled pragmatism: the single greatest political utility depended upon the fulfillment of the aspirations listed in the Preamble of the Constitution “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” The challenge for us is to extend these over all citizens without destroying the culture of lawfulness and respect for legal precedents that makes constitutionalism meaningful. Douglass unites elements from both major schools of interpretation in what we call “living originalism.”
*Frederick Douglass, “The Meaning of the Fourth of July for the Negro,” Frederick Douglass: Selected Speeches and Writings (Chicago: Chicago Review Press, 2000), 193.
Trying Out Frederick Douglass’ Approach
Adopting such an interpretive stance toward the Constitution may require us, as it did Douglass, to read between the lines at times, recognizing that our civic obligation to realize the aspirations of the Preamble may well change in relation to our collective capacity to do so. At the same time, it may also require that we recognize the inherent tensions among those aspirations and, resigning ourselves to the imprecise and imperfect nature of the system, to make tradeoffs among them as prudence requires.
To take one example of this approach, most Christians can agree on the sanctity of life as a matter of both theology and justice. However, from a constitutional perspective, they might or might not agree with Neil Gorsuch’s stated opposition to euthanasia and his argument that the best understanding of the Equal Protection Clause requires that we maintain “an exceptionless norm against the intentional taking of human life by private persons.”* Gorsuch may be right on the moral question, from a Christian standpoint, and equally wrong in insisting upon the resolution of that question within the Constitution rather than as a matter of political debate. On the other hand, Gorsuch’s interpretation of the Fourteenth Amendment in this case may well embody the sort of “living originalism” that we have ascribed to Douglass, looking as it does to the principle underlying the text, rather than focusing exclusively upon the historical contingencies surrounding it.
*Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasia (Princeton: Princeton University Press, 2006), 157.
Supreme Court justices often surprise (and even confound) those who appoint them. We cannot know with any certainty how Gorsuch’s opinions will develop over time, nor should we insist that he speculatively commit to positions in the hearing process. Christian charity demands that even if we object to his interpretative approach, we remain at least open to the possibility that his positions are derived from sound legal reasoning and not simply political expediency. In conscience, we may urge our representatives to either support or oppose him: we may not, however, vilify him.
As a practical matter, Christian citizens ought not just respect the Constitution and those called to interpret it. Drawing on our experience as people of the Book, we ought to strive to live the underlying premises of the Constitutional text: to think and act in ways that apply our reason and faith to the law in such a way that we honor it through our day-to-day interactions with one another and our fellow citizens. Rather than viewing the Constitution as either a mere abstraction or a political tool, we can proactively work to ensure the realization of the promises of the preamble in the various spheres where we find ourselves. We can, for example, look upon the work of the policeman or the school teacher as contributing to domestic tranquility; that of the street sweeper, park ranger, or artist as to the general welfare. We can, in our private homes and relationships, work to advance the liberty of all by educating ourselves in the virtues required for self-government.