Text and Tradition

12

The furor surrounding the appointment of a new justice for the U.S. Supreme Court highlights the similarity between interpreting the Constitution and interpreting the Bible.¹ For American citizens, the Constitution is, functionally speaking, their national scripture containing rules they must regard as supreme.² Yet, like the Bible, the Constitution is not a comprehensive legal code and, again like the Bible, the Constitution was framed in a past vastly different from today’s world. Throughout history, interpreters of both “Great Codes” have faced the challenge of reading their “scripture” in the light of events and circumstances unforeseen by the original writers.

Despite the frequent assertion that interpretation is an art, not a science, interpreters, be they rabbis, priests, ministers or Supreme Court justices, have always proceeded on the basis of some principle or philosophy. For example, in the U.S. today, a judge might be a “constructionist” or he or she might adhere to the concept of the “Living Constitution.” In essence, a constructionist (also sometimes called an “originalist”) interprets the Constitution according to the original intent of the framers and thus focuses on the strict sense of the words as they were meant in 1789. The idea behind the “Living Constitution” is that the text carries within itself principles and ideals that enable it to evolve as lawmakers address the exigencies of new times. As we shall see, these two approaches have close counterparts in the tradition of biblical interpretation.

Justice Antonin Scalia, a well-known proponent of constructionism, says, “I do believe you give the text the meaning it had when it was adopted,” asserting that the Constitution was designed to be rigid rather than flexible.³ Advocates of the Living Constitution, on the other hand, would point out that few constructionists would object to Brown v. Board of Education although the original framers, who counted enslaved African-Americans as two-thirds of a human being, would neither have anticipated nor countenanced the ruling. Brown attempted to ensure precisely the goals stated in the Preamble to the Constitution: to “establish Justice … promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” In the difference between the two approaches lies the dynamic, creative tension between following the letter versus the spirit of the law.

The rabbis regularly wrestled with this tension. They considered the Bible, or written Torah, to be the unchangeable incontrovertible word of God. Yet their sense of human rights (which was not always stated explicitly)⁴ could result in an interpretation directly antithetical to the strict sense of the text. A good example appears in the Mishnah’s section on civil damages, which includes a discussion of Exodus 21:23–25, the famous “eye for an eye” passage.⁵ According to the Mishnah, the offender in the case must pay monetary damages rather than suffer the equivalent punishment. The argument given indicates that the rabbis were aware of the apparent discrepancy; to justify it, they invoked a whole series of biblical texts (such as Numbers 35:31, which they understood as requiring capital punishment, while any lesser injury called only for “satisfaction,” or payment of damages) as well as common sense (“how could capital punishment be applied in the case of a dwarf killing a giant?”).⁶ As sacred text intersects with evolving tradition and mores, reinterpretation results.⁷

Christian interpretive traditions follow a similar trajectory, with a long history of what is called development of doctrine,⁸ although both Protestants and Roman Catholics are often unaware or unwilling to acknowledge this. For example, Protestantism is based on the idea that Christian dogma can be derived only from what is written in the Bible 50(sola scriptura); hence Protestants reject doctrines such as papal infallibility or the immaculate conception of Mary as scripturally unattested. However, Protestant dogma includes numerous important points not explicitly mentioned in the Bible, among them the Trinity, infant baptism (Baptists are the exception here!), and even the status of the New Testament as Christian scripture!⁹ All these ideas arose out of several centuries of doctrinal debate by church fathers whose devotion to the biblical text was no less avid than that of the rabbis and who found ways to reconcile what was for them a living scripture with the developing Christian traditions.

Interestingly, Roman Catholicism has always acknowledged both the Bible and what Catholics call inspired church tradition as sources of doctrine; this explains the nonbiblical principle of saints as heavenly intercessors, for example, as well as the internal reforms of Vatican II in the early 1960s. Like the rabbis long ago, the proponents of these doctrinal changes were careful to cite the biblical text to support the principles they advocated, even if the biblical text was mute on the specific topic at hand. This reliance on tradition is shared by both conservative and liberal practitioners. In the Catholic church today, both reformers calling for the ordination of women and a married clergy as well as their more conservative opponents base their arguments on past tradition in addition to the text of the Bible.

While both Christian communities like to claim that the church is unchanging and eternal, their own histories attest to growth and change over time even as the biblical text has lost none of its authoritative power.

Similarly, the Constitution has, over its brief 200-year history, proved itself flexible and amenable to new interpretations that, one hopes, will always promote and preserve the principles of justice, general welfare and liberty for all Americans.

The furor surrounding the appointment of a new justice for the U.S. Supreme Court highlights the similarity between interpreting the Constitution and interpreting the Bible.1 For American citizens, the Constitution is, functionally speaking, their national scripture containing rules they must regard as supreme.2 Yet, like the Bible, the Constitution is not a comprehensive legal code and, again like the Bible, the Constitution was framed in a past vastly different from today’s world. Throughout history, interpreters of both “Great Codes” have faced the challenge of reading their “scripture” in the light of events and circumstances unforeseen by the original writers. […]