Constitutionalism and Eisegesis

With the news that the Supreme Court has upheld the constitutionality of the "Individual Mandate" centrepiece of Obama's Healthcare bill, political commentators on both sides of the aisle have suddenly found themselves transformed into expert constitutional scholars. Even Mitt Romney feels comfortable asserting the mandate "was unconstitutional", despite - and in contrast with the president - having never formally studied law. What is going on? What makes so many people assume that they are qualified to make pronouncements on what is or is not constitutional?

In part I think it can be traced back to the revered status that the US constitution and its authors hold in US public life. As I mentioned in a previous post, religious traditions that produce a central canon of texts (and I'm thinking here especially of the Abrahamic traditions) come to treat this canon as an object of worship and reverence in and of itself, forming "a largely insuperable doctrine that all subsequent developments in the tradition must not find themselves to be in conflict with". Given the progressive mythologisation of the Founding Fathers and the events that led to the penning of the constitution in American political discourse, a similar process of sacralisation seems to be at work here. The US constitution is not merely seen as a foundational legal text, but rather an inviolable prescription forged and passed down by demi-gods, whose scope of wisdom and moral perspicacity remains completely beyond the possibility of reproach. None of this has anything to do with the mundane process of interpreting law (constitutionalism proper), but rather the incessant American drive to idealise and sacralise every aspect of American history that led them (in a distinctly teleological sense) to become "the greatest nation in the world".

In practice, this makes the constitution the putative foundation and inescapable focus of every political ideology that exists in the US today. As the political ideologue imagines his beliefs to be unequivocally "good" and also imagines the life and works of the Founding Fathers to be unequivocally "good", then it stands to reason that his beliefs must be in perfect agreement with the text of the US constitution. Given this, those who adhere to a different ideology (let us say, the president) must hold beliefs that are inherently at odds with the text of the constitution, and therefore any legislation passed to further this ideology (let us say, healthcare reform) is viewed as an act deliberately conceived to assault the sanctity of the constitution. As such, the political ideologue feels a keen sense of offense at this act of blasphemy and feels justified in accusing his opponents of deliberately violating and undermining the central document of his Republic. Hence the current state of political rhetoric in the US, where every act of governance from Obama can be denounced as "unconstitutional" with a straight face.

Is unclear whether the political ideologue actually believes in the truth of such denouncements or whether it is mere political rhetoric, but it's clear in either case that he has not derived his outrage from a clear and objective reading of the US constitution. Such a reading would require a process of honest constitutional exegesis, and the real problem is that truly impartial exegesis - of any text - is almost completely impossible, and can lead one to many different (but equally valid) conclusions depending on one's starting conditions. When we read the Bible, for instance, and want to know the "meaning" of a passage, there are many different approaches we can take and different exegetical approaches have led to a myriad of different interpretations of the text. With "profane" texts (that is, texts not considered to be inviolably sacred) the ambiguities of language and the attendant exegetical issues are not serious: small differences in meaning don't lead to radically different understandings of the texts. When one is dealing with a text that is highly esteemed and fetishised within a given community, however, the overwhelming desire of the members of this community to find their own beliefs articulated within this foundational text precludes any possibility of an objective, disinterested exegesis of the text. Rather, the beliefs of these members are read into (rather than derived from) the foundational text, and it becomes more proper to call this process one of textual eisegesis instead.

In this way, it is firmly my belief that the progression and content of Christian theology, for example, is for the most part not shaped by the Biblical text. The sheer size of the combined texts and the irreducible plurality of views contained within (different authors from different places writing at different times...) makes any attempt to create a coherent theology that is not in conflict with any aspect of the text completely impossible. This is especially true where theology attempts to engage with more modern ethical concerns that the Biblical authors simply could not have foreseen. The conservative Christian may claim that his opposition to abortion, stem-cell research or gay marriage are based on Biblical injunctions, but it's plain for all to see that the Bible is completely silent on all these issues. The Christian here has plainly arrived at his conclusions for his own reasons (or lack thereof) and has then - ex post facto - gone in search of Biblical passages that might validate them. As an example, Jeremiah 1:4-5 is often cited as a Biblical injunction against abortion, though it is plain that the most natural reading of this passage bears no relation to abortion, as evidenced by the fact that it has never been interpreted in such a manner until recent times (i.e. when abortion became such a central political issue for American evangelicals). 

As it is true for the Bible, so it is also true for the constitution. As great as the authors of this text may have been, they were clearly not omniscient and plainly could not have foreseen every issue that the Supreme Court has been asked to rule on since the time they wrote it. There are different ways that the Supreme Court judges may interpret the constitution when forming their rulings, none of which are perfect or inherently superior to the alternatives. Some, for example, may claim to be strict constructionists or textualists, believing that they are taking into consideration nothing but the original wording of the text, though it's apparent that such a ideal is - in practice - completely unrealisable. The constitution only extremely rarely directly mentions any of the issues that are presented before the court, so when deciding on (for example) the constitutionality of Obamacare, in lieu of finding any direct injunctions for or against the provision of healthcare in the text of the constitution, at least some creativity or imagination will be required in its interpretation in order to provide a verdict. Abortion, yet again, serves as a clear example. The constitution has nothing to say about the issue of abortion, so Roe v. Wade was decided under the privacy clause of the 14th amendment, despite the fact that the right to privacy is plainly not the central moral or legal issue in question where abortion is concerned.  

Still others may claim that the constitution is a "living tree", that should be interpreted liberally in light of the development of public opinion, though such flexibility undermines the need for such a central, inviolable legal document in the first place. In practice, the brevity of the constitution vis-a-vis the complexity of the issues brought before the Supreme Court means that the judges will - consciously or otherwise - be forced to read their own prejudices and expectations into the text in order to arrive at a conclusion.

However, even when allowing for the inherent and inescapable need for such judicial eisegesis, we must note that the political leanings of the Supreme Court justices directly influence the decisions they make to an unjustifiably high degree. In one study, simply noting the affiliations of the judges allowed the researchers to correctly predict the rulings of the court in 83% of cases, far higher "than forecasts made by legal experts as well as those made by algorithms that take into consideration the content of the cases". When the affiliations of the judges are so strong as to render the "content of the cases" purely incidental, it's clear that we have a problem and cannot claim that the text of the constitution is decisive or unambiguous. In reality, the very fact that Supreme Court judges - who are appointed by congress - can be designated as either "liberal" or "conservative" makes a mockery of the concept of the separation of powers, and is a sad indictment on the American political system.

So far from representing some clear, understandable foundation for all of American law, the American constitution has been reduced - by everyone from politicians to Supreme Court justices - into a mere blank-page, carrying neither authority nor meaning, onto which all of one's hopes, fears and prejudices may be penned without hindrance. Such is the danger - and the inevitable outcome - of sacralising a text borne of fallible human beings.