Constitutional Protestantism or Constitutional Televangelism
posted by Joey Fishkin
I think this is yet another area where Jack’s analogy (or really, Sandy Levinson’s analogy, which Jack credits generously) between constitutional faith and religious faith, between the Bible and the Constitution, is highly instructive. The Protestant idea that we all can read and interpret the Word for ourselves is just that—an idea. It is an important idea for reasons I’ll say something about in a second, but it’s somewhat aspirational. One can, and some people do, believe in the authority or even the inerrancy of the Bible without reading it much (or at all). It is also possible to read it without understanding it very well. Most people today report that they find Biblical text hard to understand (although the irony is not lost on me that the survey I just linked to saying so was conducted by the Vatican).
Luckily, if you have a hard time reading or understanding your Bible or your Constitution, help is on the way! Many experts and leaders—elites, as Doug says—stand ready to help by offering interpretations, often complete with textual citations, that ordinary people can understand (and there is no need for most people to actually go look up the citations). Very often these authorities offer their interpretations in a manner that is charismatic, memorable, and convincing. Their interpretations are all the more convincing when they happen to square with one’s own pre-existing beliefs about what the Bible or Constitution ought to say or mean.
So does all this mean the Protestant idea has no practical effect? Quite the contrary. The Protestant idea has an extremely important effect. The normative premise that we all are able to read and interpret the text for ourselves means that we do not have to trust the priests in the temple; we do not have to trust the Justices who emerge from behind the curtain of the Court. We get to decide for ourselves who to trust, whose interpretive authority to respect. This is, as Jack says, a great theology for dissent. We can decide we agree with people who say that on a particular question, all nine Justices got it wrong.
This is why Jack’s conception of constitutional Protestantism is linked in a such a deep way with his account of the role social movements play in constitutional change. But in my view, the mechanism by which constitutional Protestantism empowers social movements to make constitutional changes has little to do with ordinary people literally reading the constitutional text and coming up with their own interpretations of its meaning.
Jack notes that people generally cannot name Supreme Court decisions (245); he contrasts the case law, the work of “We the Judges,” with the text that belongs to We the People. I am somewhat skeptical of the strength of this contrast. I doubt most people would do much better naming important Amendments or clauses of constitutional text than they would do identifying important cases. And yet I still think there is something to what Jack says, that the very fact that the Constitution is an open, public text “authorizes people from all walks of life to claim the right to interpret it.” (237) I’d put the emphasis on “right.” Most people do not actually do this interpretive work for themselves, literally reading the words and trying to determine their meaning. And they need not. In our pluralistic, Protestant polity, many different interpretive views are being articulated all the time, not only in editorials and blogs but also at political rallies, in sermons, on TV, on the radio. All we have to do is listen and decide who is right.
But how do we decide that?
In part, we decide whose answers we like best. That’s not all, of course. We also decide whose ways of speaking and reasoning about the Constitution appeal to us. And here I think the analogy between religion and law, between the Bible and the Constitution, is more than an analogy. Anecdotal evidence strongly suggests, and I would be very surprised if it were not the case, that people who interpret their Bible as literally true and inerrant are also likely to prefer discourses about the Constitution that emphasize its unchanging character, reverence for its origins, its authority over us, and the limits of our role as interpreters. On the other hand, I strongly suspect that people who view their Bible as a source of meaning to be re-interpreted with new glosses and layers of commentary in each generation are likelier to be comfortable with theories about the Constitution that do the same. But all that said, I really doubt that most people choose which elite interpreters of the Constitution sound the most correct and plausible to them primarily on the basis of interpretive methodology. It has to be mostly about substance—not necessarily results in particular cases, but which substantive visions, which constitutional narratives, each of us finds more compelling. It probably also has quite a bit to do with the the speaker’s affiliations—specifically, whether the speaker is connected to a group, a social movement, a political party we respect or identify with.
And that is where I think Jack’s theory (with Sandy Levinson) of partisan entrenchment, and the connected idea of a link between what Jack elsewhere calls “high politics” and “low politics,” comes into play. Constitutional questions are not simply political questions. But neither are they extricable from politics. Our jurisprudential views are never fully separable from our political and moral views, any more than our theological views can be completely separated from our moral views. (In one of the most striking sections of Constitutional Redemption, Jack cautions readers not to let our jurisprudential views reshape our moral views and constrain our moral imaginations, but instead to retain a sense of morality independent of our sense of what the Constitution requires.) If constitutional debates are a special kind of politics (“high politics”), our decisions about which elites to trust, and who to credential as an authority to speak about the Constitution, are political decisions of a special kind. We make constitutional changes in part by voting elites with particular constitutional views into high office (especially the office of President, who appoints Supreme Court justices), but also by providing popular support that enhances the stature of other elites who may never hold any public office. On this picture of things, We the People may not be in the driver’s seat of constitutional interpretation, but constitutional Protestantism gives us power to decide to whom we hand the keys.
If this positive account is right, there are a number of real problems with this state of affairs. Most obviously, all of the distortions of normal politics will tend to flow into, and shape, constitutional politics as well. Any entity with substantial political power, whether or not that power is democratically legitimate, also has significant power over the trajectory of our constitutional law.
In the end, to return to the topic of my earlier post, I am not sure that the democratic character of this kind of constitutionalism is compatible with a constitutionalism that maintains a close tie to text. Elites who go to law school can be socialized into a world where particular bits of text matter. But for most people, it’s hard to see how that could occur. We do not have Vacation Constitution Schools in which we have children memorize passages of Constitutional text, nor do we have Constitution Mitzvahs in which we showcase our young teenagers’ newfound and perhaps fleeting ability to read and explain a passage in the original 1787 language… and really, thank goodness. Instead we have something much simpler: a system in which people, very few of whom have probably ever read most of the text of the Constitution, listen for authorities who talk about the Constitution in a way that speaks to them. We listen for authorities who speak in a way that makes sense to us in terms of the rest of the nomos we inhabit. Jack’s own narrative of constitutional redemption, like Martin Luther King Jr.’s great narrative of the Declaration as a promissory note, speaks to us not because it’s such a close exegesis of the Declaration’s text, but because it’s a compelling narrative that resonates with deep American themes of progress and renewal. It speaks to us. Maybe that is enough?