How the Desire for a Constitutional Originalist has Surfaced a Much Larger Debate

As arch-conservatives stew about the president’s latest nomination for the Supreme Court, they have raised legitimate concerns as to whether or not Harriet Miers is conservative enough, i.e. a “constitutional originalist”. The fear is that as the liberal agenda fails at the voting polls, it can still be enacted through “activist judges,” who view their appointments as green lights to view the Constitution as a living, breathing document, capable of being rewritten, reinterpreted and re-contextualized. Apparently, all it needs is a “New and Improved!” sticker on it. Hence the need for those who see the Constitution as a document not in need of change or contextual analysis.

I won’t lament the processes and ethics that over decades and centuries have allowed us to get to a point where we seek to test the fragility of the ideas that have led to our very success. The lifespan of the Constitution amid this suicidal tendency points to its overwhelming strength in preserving something as fragile as concepts. And of course, this is all the Constitution is: ideas and concepts for a constitutional republic. No guarantees; just ideas that have worked remarkably well.

This is a parallel debate that has been bubbling at the surface in Christendom primarily since the Enlightenment. The same processes and ethics that have led many to question the contemporary relevance of the Constitution have led many to question the contemporary relevance of another old document that has stood the test of time: the Bible.

According to Martin Marty, a top tier Church historian and professor of religious history at the University of Chicago, Christianity is in the midst of Controversy, with sex and the authority of scripture being the primary issues dividing most churches. He says that, “there is indeed a clash within some features of the West. The fights are all about ‘sex’ and ‘authority’ in every denomination, from Mennonite to Roman Catholicism.” In other words, no church in Christianity is immune to these debates, which ranks this controversy as a Controversy that will take decades if not centuries to mend, if ever.

One could even look at the debate over sexuality and see that it stems from a scriptural authority problem. Culture is dictating which elements of scripture are valid or not; the overwhelming preponderance of heterosexuality as the biblical norm should make the great debate over sexuality a non-issue. Yet it doesn’t, because the authority and reinterpretation of scripture have made it a hot-button issue even when it should not make the docket. This is not to say that the Church should not be tolerant and loving towards all people including homosexuals; it is to say there is no scriptural basis for having the debate when it comes to ordination or marriage. Yet the debate rages on because of the way “ancient documents” are treated more as suspect than wise.

In response, here come the scriptural “originalists,” who, like the Constitutional originalists, seek to view scripture less from a contextual and more from an orthodox vantage point. There are, no doubt, various degrees one could do this. One could be a literalist who views the Bible as the historical and scientific norm, or one could view it as the ethical and moral norm, if not the historical norm. Whatever the variance, there is a gulf that separates those who seek to see the Bible as any kind of norm, and those who seek essentially to revise it, those who seek to place context, “diversity,” and even personal experience above traditional norms the Church has granted scripture for well over 1,500 years.

I suppose my point is merely to point out that the particular nomination of Ms. Miers highlights a much, much larger debate that is taking place not only in America, but in many ways has already taken place in Europe and will take place as “undeveloped” nations develop. We are at the crossroads of the essential question of Postmodernism: “What is authoritative?” The desire for a constitutional originalist (which to my mind is the only possible, conceivable, or legal choice for a Supreme Court justice) is the way this debate is surfacing in our daily language. It is one more way our culture has to choose what is authoritative for itself: old, fragile ideas which take wars, debates, and discomfort to defend, or new solutions, yet to be tested.