Author Archive for joseph-fishkin
Constitutional Protestantism or Constitutional Televangelism
posted by Joey Fishkin
I appreciate Doug taking up questions from my earlier post and I think he’s right about the central role elites play in interpreting constitutional texts.
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. Read the rest of this post »
August 2, 2011 at 9:21 pm
Posted in: Constitutional Law, Constitutional Redemption Symposium, Law and Humanities, Religion
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What kind of constitution is the subject of this book?
posted by Joey Fishkin
First, thanks to Danielle and Jack for the opportunity to participate in this symposium. I’m happy to do it because I think this is a fantastic book.
Among many other things, this book offers a particularly well-developed story about the role that stories play in constitutional argument and constitutional change. I thought I’d start there, because that piece is at the foundation of the argument of the book. Also it has the fun property that once you start thinking in its terms, you start seeing examples everywhere. Indeed you see these moves even in debates that are not, explicitly, constitutional debates.
And this raises an interesting question: to what extent is this book about faith in the Constitution, and to what extent is it, instead, about faith and redemption in something like the broad political/constitutional project of the United States? It is hard to separate these things. But let’s look at places where the two might plausibly come apart. Jack (citing Mark Graber) notes that in recent years, among liberals, the canonical example of a policy problem the constitution does not address is the distribution of income and wealth (132-33). So let’s begin with the stories we tell about fiscal policy.
Last April, President Obama made a speech on the deficit and fiscal policy in which he offered a defense of Medicare, Medicaid, and unemployment insurance, along with Social Security. He said: “From our first days as a nation, we have put our faith in free markets and free enterprise as the engine of America’s wealth and prosperity. More than citizens of any other country, we are rugged individualists, a self-reliant people with a healthy skepticism of too much government. But there’s always been another thread running through our history -– a belief that we’re all connected, and that there are some things we can only do together, as a nation.” After discussing such collective projects as schools, science, the military, and the interstate highway system, Obama argued that Medicare, Medicaid, unemployment insurance, and Social Security were part of this “American belief that we are all connected,” which is in part a “conviction that each one of us deserves some basic measure of security and dignity.” He argued, “We are a better country because of these commitments. I’ll go further – we would not be a great country without those commitments.”
Rick Santorum sharply criticized these comments in a speech in June. Santorum quoted the lines above and responded, “Ladies and gentlemen, America was a great country before 1965!” When the applause died down, he continued: “Social conservatives understand that America is a great country because it was founded great. Our founders, calling upon, in the Declaration of Independence, the Supreme Judge, calling upon Divine Providence, said what was at the heart of American exceptionalism. In the Declaration of Independence it said ‘We hold these truths to be self-evident, that all men are created equal and endowed by our Creator with certain inalienable rights.’ You see, our founders understood that we were going to take the principles, Judeo-Christian principles, that had been out there for centuries, and we were going do something radical. We were actually going to found a government upon these principles.”
August 1, 2011 at 2:49 pm
Posted in: Constitutional Law, Constitutional Redemption Symposium, Law and Humanities
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