A Protestant Supreme Court?

Late nights in Washington, D.C.

I hope you will not think me too strange if I reveal that after a day of teaching and researching I currently delight in sitting up (too late into the night) catching up on the broadcast of the hearings of the Senate Judiciary Committee as it considers President Trump’s nominee Amy Coney Barrett. To my amateur, foreign eyes the hearings are an excellent microcosm of so many of the concerns at the heart of American politics at the moment, as well as of the distinctive features of the American legal system. As the chairman Lindsey Graham pointed out on the second day, the Committee’s proceedings are notably more orderly and respectful then the presidential debates (at least that is true so far in my viewing, though I haven’t got to the end of the second day yet). Even amid the party political posturing for the voters (the ‘soliloquies’, as PBS put it) there have been some excellent presentations from both sides and some incisive lines of questioning. It has been fascinating to see the tension between the political and the procedural conceptions of the role of the Supreme Court. Judge Barrett herself has been a model of grace and careful listening and speaking.

Originalism and textualism

One of the reasons that I find the hearings so fascinating is that they explore matters of legal philosophy pertaining to how the justices of the Supreme Court should interpret the text of the Constitution. Judge Barrett describes herself as an ‘originalist’ and a ‘textualist’, following in the footsteps of her mentor Justice Antonin Scalia. As I understand it, originalism is an approach to interpreting the Constitution which maintains that it should only be taken to mean what it meant at the time when it was adopted; its meaning does not change over time. Textualism, which often but not always goes with originalism, describes how the meaning of a legal text is to be ascertained. It holds that the text itself is primary in determining its own meaning, rather than extra-textual features such as the intentions or ideals of the authors.

Law and theology

It is no surprise that many great theologians began as lawyers or legal philosophers. Both theology and law centre upon textual interpretation. Originalism and textualism sound like approaches to the interpretation of Holy Scripture. Let me be careful not to over-state the parallels here: an originalist-textualist hermeneutic does not map neatly onto a historic Protestant or Roman Catholic approach to biblical interpretation. The biblical text is a divine text with a divine author as well as multiple human authors, which means that reading it is a categorically different act from reading even so lofty a text as the American Constitution. Also, the origin involved in biblical originalism and the text involved in biblical textualism are more complex and extensive than the text of a single human author or even a group of human authors. Hosea, for example, must interpreted in the light of Matthew’s use of his prophecy, written hundreds of years later.

The Protestant hermeneutics of Roman Catholic judges

Nonetheless, I do find the prominence of originalism and textualism among conservative Supreme Court nominees and justices intriguing. It is intriguing because the judges themselves, like Scalia and Barrett, are often committed, practising, and clearly thoughtful and highly intelligent Roman Catholics. They are of course judges rather than theologians, but it seems to me that originalism and textualism raise some serious problems for standard historic Roman Catholic apologetic moves. Though originalism and textualism do not map neatly onto a particular approach to biblical hermeneutics, one thing is clear: loosely plotted onto the scale of approaches to biblical interpretation they are much closer to the Protestant than to the Roman Catholic end.

The idea that the text of a law suffices for determining its own meaning sits very uneasily alongside historic Roman Catholic arguments for the necessity of the church and in particular the ex cathedra authority of the Pope in interpreting the word of God. Originalism warns the interpreter against allowing later traditions or teachers to determine a text’s meaning.

Textualism sounds very like the Protestant hermeneutical tenet Scripturam ex Scriptura explicandam esse (Scripture is to be explained from Scripture). Can the text of Scripture suffice for determining it own meaning? That is the very thing that many Roman Catholic theologians have argued not only is not but cannot be the case: we need the church as the authoritative interpreter because the text is not clear. And yet the very exercise of textualist interpretation implies that Scripture does suffice: if even the human Constitution can function like this, then God’s word, the word which is light, surely can.

Does a judge in interpreting the Constitution put herself above the text as an authority? Some (not all) Roman Catholic theologians have argued that the church sits above Scripture because it is its interpreter. And yet the originalist and textualist Roman Catholic judges profess that their method is intended to avoid precisely that result: they simply interpret the law according to what it says it means.

Originalism and textualism are not only interesting for their approximate Protestantism, but also because they reveal how even at the heart of a contemporary Western legal system there is stalwart resistance to postmodern hermeneutical relativism: the text has a meaning, and it can be known.

The hearings have finished but there is a lot to catch up on. Anyone for a few more late nights listening to a fine Roman Catholic judge imply the truth of Protestant hermeneutics?