The Mimetic Theory of René Girard proposes that all human culture is founded in sacred violence. American culture is no different, even though it does bear some marks of transformation under the Gospel. There is much potential to grow toward freedom and equality through democratic self-government, but American culture is still steeped in sacred violence in the protection of its yet-to-be-fully-realized brand of freedom.
America’s sacred text is the Constitution and, similar to the Bible, needs to be read with awareness of the sacred violence at the foundations of American government. And for reasons similar to “fundamentalist” readings of the Bible, “Strict Constructionist” judicial interpretation, I believe, leads America backwards into greater sacred violence. Born in the 18th Century, the U.S. Constitution was crafted under the shadow of the Doctrine of Discovery by white men who were racist, sexist, and elitist. To interpret this document with only the Founders’ intent in mind is to roll back the progress made since that time to ameliorate the oppression of People of Color, women, and working class white people.
Judge Neil Gorsuch has been nominated by President Donald Trump to be Associate Justice for the U.S. Supreme Court. He stridently professes himself to be a strict constructionist in his approach to ruling on the law. It is high-time that this nation enters into a serious conversation about interpreting its sacred text. It strikes me that it seems to be such a low priority to evaluate a judge’s professed method of judicial interpretation. I know in my task as a theologian how important is my method of interpreting Scripture. With Supreme Court Justice nominations, one hears that that the judge is a “good man” and a “brilliant lawyer” and, for some, the vetting includes a close examination of the case record. But I miss getting to another level of conversation: how effective is the judge’s professed method of interpreting the law, and the Constitution in particular?
I oppose the confirmation of Judge Gorsuch for his professed method of judicial interpretation. The following letter to senators is offered for anyone who shares this concern about constitutional interpretation, to use in part or in whole — with the hope that we can ramp-up conversation about what’s at stake in interpreting our American sacred text for greater freedom and equality.
Dear Senator _________,
I urge you to vote against the confirmation of Neil Gorsuch for Associate Justice of the Supreme Court of the United States on the basis of his professed “strict constructionist” or “originalist” method of judicial interpretation of the Constitution, which I believe is counter-productive to our most deeply held national values. It’s not enough to simply accept that he’s a “good man” and “brilliant lawyer,” when, as I believe, his way of interpreting the Constitution blocks a full realization of freedom.
As a retired Lutheran pastor and interpreter of the Bible, my perspective is that the “strict constructionist” philosophy of judicial interpretation leads to similar dead-ends as the “fundamentalist” approach to the Bible. Both texts hold transcendent power for guiding our communities in the journey of equality for all. This is especially true with the highest court in our land, where there occasionally arises the need to let our national values bring us forward, rather than return us to our origins.
The clearest and most dramatic case of this forward movement was in the aftermath of the Civil War. The original text of the Constitution allows for slavery and counts male slaves as three-fifths of a person. The 13th-15th Amendments outlawed slavery and counted free African American male citizens as full persons. Continuing with the forward movement of equality, the 19th Amendment was ratified in 1920 to stop denying the vote “on account of sex.” Full voting rights for Native Americans didn’t come until Acts of Congress in 1924 and 1948; removal of final barriers to voting for People of Color came in 1965 — currently under attack from a strict constructionist judicial interpretation.
I believe the most deeply held values guiding the process of Constitutional interpretation come from outside the Constitution in the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. … That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government….
The examples cited moved us from “all [white] men” to “all people are created equal” and illustrate, “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government….”
Strict constructionist judicial interpretation is too often used to block or even reverse legislative attempts to move forward with our national values, expressed in the spirit of the Declaration of Independence. The last fifty years have seen significant movement forward with civil rights for marginalized peoples. Under the direction of strict constructionist majority rulings, recent Court decisions have already rolled back some of the important strides made as a result of the Civil Rights Movement.
While our Founders had much wisdom in crafting democratic self-government, they were steeped in the sexism, racism, and elitism of their day. If strict constructionism seeks to consult only the intent of the Founders, as it professes to do, then we go back to all their ‘isms,’ too, and block our way forward to continual ‘new births of freedom’ for all individuals. For many women and People of Color, America — under the shadow of the Doctrine of Discovery — has never been great and will only truly be great when it fully lives up to the vision of the Declaration of Independence.
Strict Constructionism is a dead-end method of judicial interpretation that works against the fulfillment of the great American experiment. Even if Judge Gorsuch’s confirmation is not denied, due to the Republican majority, I hope his way of interpreting the Constitution can be thoroughly scrutinized and challenged.
With sincere gratitude,
Rev. Paul J. Nuechterlein