Sacred Texts The Myth of Historical Literalism.

In the modern United States, a substantial portion of our society has the view that this country is in a state of moral decay. The alleged causes of this decay take various forms but are often expressed as a belief that the nation has drifted away from its "sacred texts"--the Bible and the U.S. Constitution. The argument with both texts is that a literal reading provides moral guidance, while any other way of reading opens the door to the reader substituting her or his own subjective principles for what the text actually says.

For both biblical literalists and constitutional literalists, support for their world view comes from a belief that, since their very creation, these texts were read literally and a moral society was the result. Only in recent years (often the 1960s are cited as the beginning of the fall) have we begun to "interpret" them. The result, literalists would argue, is society's moral decay.

In his 1985 article "Comparative Normative Hermeneutics: Scripture, Literature, Constitution" (Southern California Law Review 58), scholar Ronald R. Caret summarizes the view this way:

   The rhetoric of literalism suggests that texts offer a fundamental access
   to meaning, and that this access is impeded by "interpretation," which is a
   pejorative term in the literalist lexicon. Literalism offers several
   distinct accounts of how interpretation becomes an impediment to
   understanding the moral meaning of a text. One account takes the form of
   history. According to this history, the text was once read literally, but
   in recent times has come to be read in new "interpretive" ways.

Conservative religious leaders (for example, Southern Baptists and various other evangelicals) often blame moral decay on society's increasing failure to read the Bible literally, and they attack "liberal" theologians who provide alternative explanations of what the Bible says. These attacks are often sharpest when it comes to particularly controversial issues like homosexuality but are reflected as well in debates over the role of women in the church and the use of corporal punishment. Biblical literalism argues that not only is the Bible literally correct on all moral questions but it provides historical truth as well. Jerry Falwell, a prominent biblical literalist, argues that "the Bible is the inerrant word of the living God. It is absolutely infallible, without error in all matters pertaining to faith and practice, as well as in areas such as geography, science, history, etc."

Similarly, prominent conservative legal scholars--such as Robert Bork, Antonin Scalia, and Clarence Thomas--argue that the Constitution has always been read more or less literally and that many of the problems of modern society are caused by "liberal" judges reading principles into the Constitution that aren't contained in its text. Judicial decisions on such topics as abortion, homosexuality, school prayer, and affirmative action are all seen as drastic departures from what the Constitution literally commands. As Bork states in Slouching Towards Gomorrah. Modern Liberalism and American Decline (1997):

   Judicial radical individualism weakens or destroys ... families, schools,
   business organizations, [and] private associations.... All of this has
   happened within the lifetimes of many Americans. We are worse off because
   of it, and none of it was commanded or contemplated by the Constitution.

Because of this perceived threat, Bork has called for a constitutional amendment enabling a majority vote of Congress to override a U.S. Supreme Court decision.

In reality, however, debates over how to read the Bible and the Constitution have existed since the documents' first creation. Arguments over literalism and interpretationism are nothing new and, in fact, reflect the enormous importance society places on these documents. To believe that the documents have always been read literally until recently simply ignores historical fact.

BIBLICAL LITERALISM

One of the distinctive features of the three major monotheistic religions is their dependence on a written text for guidance. As Ronald Garet points out:

   The interpretation of certain texts that are invested with special value
   guides the reader's moral reflection and action ... The believer who reads
   Scripture finds in it profoundly instructive moral meanings which bear
   directly upon the reader's inmost contemplation and most practical
   life-choices."

In her award-winning book A History of God (1993), Karen Armstrong shows how the earliest religious creation stories were taken allegorically, not literally. As time passed, the methods of interpretation grew numerous, as the number of sects of religious belief multiplied. When one reads the great works of Augustine or Aquinas, it becomes clear that their work includes far more than mere literal interpretation of a text. In fact, the view that literalism was the only correct method of reading the Bible didn't achieve widespread acceptance until the sixteenth century. Armstrong says that:

   In the past ... some rationalists and mystics had gone out of their way to
   depart from a literal meaning of the Bible and the Koran in favor of a
   deliberately symbolic interpretation. Now Protestants and Catholics had
   both begun to put their faith in an entirely literal understanding of
   scripture.

This new faith in a literal and absolutely correct scripture was the cause of the famous condemnation of Gallileo. His belief that the Earth circled around the sun violated the scriptures that "The world is firmly established; it shall never be moved" (Psalms 96:10), and "The sun also ariseth, and the sun goeth down and hasteth to his place where he arose" (Ecclesiastes 1:5). Armstrong argues that this new literalism made Christianity vulnerable in a way that Islam and Judaism were not:

   Catholics and Protestants were insisting that the Bible was factually true
   in every detail. This would make the traditional mythology vulnerable to
   the new science and would eventually make it impossible for many people to
   believe in God at all.... Science has been felt threatening only by those
   Western Christians who got into the habit of reading the scriptures
   literally and interpreting doctrines as though they were matters of
   objective fact.

The fact that theologians historically argued about the proper way to read the Bible is supported by other scholars. Garet asserts:

   Early Christians did not read the Bible "literally" in any sense that
   matches the rhetorical aims of modern Biblical literalists.... Many
   Christians, following the Jewish interpreters of Hebrew Scripture,
   understood Scripture allegorically ... [and] sensitivity to the various
   nonliteral meanings is just as old as the attempt to recover the literal
   sense.

It should also be noted that one of the major themes of the Protestant Reformation was a belief that the Bible should be interpreted literally, because this would enable lay readers to free themselves from papal rule and lead to a truer, personal understanding of God's will. This doctrine was called sola scriptura and in principle, although less in practice, was an attack on the role of reason. As Garet points out, "Far from being natural or self-evident theologically, [it] emerged quite late and then only as a result of a specific complex of theological motivations."

Apart from its historical origins, we can examine the practical effects of reading the Bible literally. In short, it can create just as many conflicts as does reading it liberally. In his 1996 article "Beyond Biblical Literalism and Inerrancy: Conservative Protestants and the Hermeneutic Interpretation of Scripture" (Sociology of Religion 57), John Bartkowski shows how literalists often disagree amongst themselves as to what the Bible commands. For example, on the issue of whether wives should submit to their husbands, Bartkowski examines the writings of two self-proclaimed biblical literalists: The Christian Family (1970) by Larry Christensen and Being a Woman of God (1993) by Ginger Gabriel. Although both Christensen and Gabriel provide support with scriptural quotations for their view, they achieve almost the exact opposite conclusion. Christensen believes that women are weaker than men and inherently more prone to sinful behavior and, thus, must submit themselves to their husbands. Gabriel, on the other hand, believes that men and women are equal and that the Bible calls for mutual submission between husband and wife.

Bartkowski finds a similar dispute on the value of corporal punishment between biblical literalists James Dobson in Dare to Discipline (1970) and Russ Campbell in How to Really Love Your Child (1990). Bartowksi concludes that "from a hermeneutic perspective, the Bible as a text is capable of generating multiple readings--even multiple `literal' readings--and can yield seemingly contradictory conclusions." Similar conflicts between literalists were found in historical debates over slavery, temperance movements, and pacifism. (Beyond conflicting interpretations of the same language, there are additional problems in deciding which texts constitute part of the canon and in resolving translation differences; similar debates occur today over the role of cases and contemporary writings in constitutional literalism.)

As Shakespeare wrote, "Even the devil can cite scripture for his purpose." The problem with biblical literalism, then, is clear: once each side has found biblical support for its cause, the debate cannot be resolved. The only rational way to satisfactorily conclude such a debate is to interpret the principles contained behind the literal passages, and this deviates from the command of literalism itself.

This debate over the proper way to read scripture is an important one. Those who believe in the text's divine origin look to it for guidance in almost every aspect of their lives. Furthermore, there is tremendous social importance even for those who don't believe. Although (or perhaps because) the debate is important, it is enduring. It has taken place for centuries, and whatever ills may plague us today cannot be fairly attributed to the fact that there are advocates of each position.

CONSTITUTIONAL LITERALISM

Constitutional literalism takes two distinct threads. A view held by only a very small minority of scholars is epitomized by Justice Owen Roberts' notorious view in United States v. Butler (1936): "The judicial branch of the government has only one duty; to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former." Even conservative scholars rarely take this position because the flaw is obvious: the Constitution speaks in "majestic generalities," using vague and potentially limitless terms such as guaranteeing due process and allowing only reasonable searches. Such scholars instead turn to a method of interpretation called originalism or strict constructionism. H. Jefferson Powell summarizes the view well in his 1985 article "The Original Understanding of Original Intent" (Harvard Law Review 98):

   A substantial and influential group of judges ... maintain that
   historically demonstrable intentions of the framers should be binding on
   contemporary interpreters of the Constitution. This last group not only
   invokes history ("the original understanding at Philadelphia") as a
   normative guide to the Constitution's meaning, but also claims historical
   warrant for this interpretive strategy.

It is well known that the 1960s and early 1970s were a controversial time in the Supreme Court's history. The Warren Court issued Griswold (legalizing contraceptives) in 1965, Miranda (requiring that arrestees be informed of their rights before being interrogated) in 1966, and, of course, Roe v. Wade (legalizing abortion) in 1973. Decisions such as these placed the Supreme Court in the spotlight and made it a prime target for criticism by conservative commentators. The originalist movement was a response to this perceived "judicial tyranny."

Although, as Edward P. Lazurus points out in Closed Chambers (1998), it is "far from obvious why the Constitution, replete with clauses of indefinite content, designed with the evident purpose to apply to unseen and unforeseeable changes in the structure of American society, should be interpreted exclusively by reference to the vision of persons dead for more than 200 years," many conservative scholars argue that we should look to the recorded debates and other writings of the framers to find out what they intended the language of the Constitution to mean. There are several practical problems with this view, most damning of which is the fact that the framers themselves didn't believe that their intent should govern future interpretation of the document. Far from being a new phenomena, debates over the proper way of reading the Constitution surrounded the very ratification process itself. As Powell points out in his Harvard Law Review article, "Once the Constitution was proposed to the states, a central element of the campaign to prevent ratification was the charge that the Constitution would be the object of interpretation and that judges and legislators would read into it doctrines present only `constructively' and not textually." In response, the Federalists argued, according to Theophilus Parsons at the Massachusetts convention, that "no compositions which men can pen, could be formed, but which would be liable to the same charge of ambiguity."

Central to the debates was whether the Constitution should be interpreted solely with reference to what the writers intended or as the common law traditionally looked at statutes. Much as our modern-day Republican and Democratic parties define themselves by reference to "strict constructionism" as opposed to "living, breathing constitutionalism," parties at the time of the ratification process defined themselves by reference to how they believed the Constitution should be interpreted. As Powell puts it:

   The split between Hamilton and Jefferson over liberal versus strict
   construction played an important role in the parties' efforts to define
   themselves. Federalists like Hamilton, applying the traditional tools of
   statutory construction to the Constitution's sweeping generalities, found
   in the text the basis for an expansive view of federal power. The
   Republicans, in contrast, took up the cudgels of the religious and
   philosophical opposition to the interpretation and warned that the "wiles
   of construction" could be controlled only by a narrow reading of the
   Constitution's expansive language.

If we look at what the framers themselves actually intended, it seems doubtful they expected future generations to pay great attention to their subjective intent. The framers took no official records of their meetings, and James Madison, who privately kept notes of the Constitutional Convention, expressly allowed them to be published only at his death, writing that "as a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character."

Conservatives often criticize the Warren Court as the inventor of liberal construction and argue that originalism would stop such problems from happening again. But the first Supreme Court refused to embrace originalism. In 1793, the Court was faced with the question of whether states could be sued in federal court. Despite the "virtually unanimous" writings of the framers that the states retained their sovereign immunity, the Court applied the "ordinary rules for construction" and found otherwise in Chisholm v. Georgia.

Courts and legal scholars since then have routinely argued that making law solely with reference to the intent of the framers would be unwise. In 1910 the Court said in Weems v. United States that "a principle, to be vital, must be capable of wider application than the mischief which gave it birth." In 1920, Oliver Wendell Holmes said in Missouri v. Holland that

   when we are dealing with words that also are a constituent act, like the
   Constitution ... we must realize that [the framers] have called into life a
   being the development of which could not have been foreseen completely by
   the most gifted of its begetters ... the case before us must be considered
   in the light of our whole experience and not merely in that of what was
   said a hundred years ago.

And in 1921, Benjamin Cardozo said in The Nature of the Judicial Process: "The great generalities of the Constitution have a content and a significance that vary from age to age."

In a practical sense, the results of using original intent are shocking. As Steven B. Epstein points out in "Rethinking the Constitutionality of Ceremonial Deism" (Columbia Law Review 96), if courts had consistently made law solely with reference to what the framers intended, "African-Americans would still be subjected to Jim Crow laws, segregated schools, and miscegenation statutes; women would not be entitled to the protection of the Equal Protection Clause [and] seditious libel could still be a crime."

Of course, the fact that historically there have been several ways of looking at the Constitution doesn't mean that original intent is an invalid way of reading it. But it does mean that supporters can't claim historical warrant for it. In short, the "original intent" was that the intent of the framers shouldn't matter. Additionally, any claims that interpreting the Constitution is a new phenomenon promulgated by activist liberal judges are also doomed to fail in the light of historical evidence.

There are several interesting similarities between biblical literalism and constitutional literalism that deserve to be explored further in another setting. For example, both kinds of literalists usually believe that their text is necessary for civilization, that they are dealing with unique documents, that writers of these documents were divinely influenced (or practically so), and that their text can provide all of the answers. Additionally, both biblical and constitutional literalists believe that any "problems" are with the interpretation of the document, not the document itself. Both are conservative reactions to liberal advances in society; the ebb and flow of literalist movements is often akin to a cultural pendulum. Finally, both kinds of literalism evince a fear of the use of reason and an assault on intellectualism.

There are also, of course, fascinating differences between the two kinds of literalism. Constitutional interpretation is a vital question, because it directly affects all citizens, while there is a large and growing segment of our society that doesn't believe in biblical authority at all. Differences also lie in who has the ultimate authority to pronounce what the language means, which tertiary texts are considered canonical, and the effects of an inconsistency on the ultimate authority of the document. Finally, it's important that we understand that biblical literalism and constitutional literalism aren't two separate phenomena. Biblical literalism may have directly influenced, or continue to influence, constitutional literalism.

Arguments over how to read our "sacred texts" aren't new and they aren't the invention of activist judges or liberal theologians. These arguments existed when the documents were first created, throughout their long history, and are likely to continue well into the future. The fact that we work so hard to find out the best way to read a text is evidence of its importance in our lives. For both the Bible and the Constitution, the documents are important only if we are capable of adapting them to changes in society. We shouldn't pretend they could have meaning otherwise.

Jeremy Patrick is a third-year law student at the University of Nebraska College of Law. He welcomes feedback at jhaeman@ hotmail.com.