Interpreting the Bible & the Constitution Interpreting the Bible Constıtutıon&the Jaroslav Pelikan A John W. Kluge Center Book Library of Congress, Washington, D.C. Yale University Press New Haven and London Published with assistance from the Louis Stern Memorial Fund. Copyright ᭧ 2004 by Yale University. All rights reserved. This book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publishers. Designed by Sonia L. Shannon. Set in Galliard type by Binghamton Valley Composition. Printed in the United States of America. Library of Congress Cataloging-in-Publication Data Pelikan, JaroslavJan, 1923– Interpreting the Bible and the Constitution / JaroslavPelikan. p. cm. “A John W. Kluge Center book.” Includes bibliographical references (p. ) and indexes. isbn 0-300-10267-4 1. Bible—Criticism, interpretation, etc.—History. 2. Constitutional law—United States. I. John W. Kluge Center (Library of Congress) II. Title. bs500 .p45 2004 220.6'01—dc22 2003023274 A catalogue record for this book is available from the British Library. The paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources. 10987654321 In memory of Edward Hirsch Levi (1911–2000) The influence of constitution worship.... gives great freedom to a court. It can always abandon what has been said in order to go back to the written document itself. It is a freedom greater than it would have had if no such document existed....Awritten constitution must be enormously ambiguous in its general provisions....Aconstitution cannot prevent change; indeed by permitting an appeal to the constitution, the discretion of the court is increased and change made possible. —An Introduction to Legal Reasoning Contents Preface xi 1 Normative Scripture—Christian and American 1 Ⅵ A Personal Introduction Ⅵ Great Code Ⅵ “In Accordance with the Scriptures” Ⅵ Christian Scripture Ⅵ Constitutions and Other “Peoples of the Book” Ⅵ American Scripture Ⅵ The Interpretive Communities Ⅵ Text and Context Ⅵ “Binocular Vision” 2 Cruxes of Interpretation in the Bible and in the Constitution 38 Ⅵ Interpretive Imperatives Ⅵ “Unless Someone Will Give Me the Clue” Ⅵ Interpretation as a Crux Interpretum: “The Thickness of Legal Meaning” viii Contents Ⅵ “Outbreaks” and “Quiet Instants” Ⅵ The Ordinary and the Extraordinary Magisterium Ⅵ Interpretive Ambiguities Shared by the Bible and the Constitution Ⅵ Absolute or “Contemporary Community Standards”? Ⅵ The Final Arbiter 3 The Sensus Literalis and the Quest for Original Intent 76 Ⅵ The Spirit and the Letter Ⅵ The Sensus Plenior: Radiations, Penumbras, Allegories, “Analogical Extensions” Ⅵ “Eyewitnesses from the Beginning”: The Originalist Impulse Ⅵ An Interdisciplinary Approach Ⅵ “Learning’s Crabbed Text”: The Critique of Originalism Ⅵ “Textual Support in the Constitutional Language”: The Authority of the Original Ⅵ “Historical Philology” / “Sacred Philology” Ⅵ “Authorized Versions” as Authoritative Interpretations 4 Development of Doctrine: Patterns and Criteria 115 Ⅵ “An Inner Dimension of Tradition” Ⅵ “New Insights in Harmony with the Old” Ⅵ “First Note. Preservation of Its Type [Preservation of Type or Idea]” Contents ix Ⅵ “Second Note. Continuity of Its Principles [Continuity of Principles]” Ⅵ “Third Note. Its Power of Assimilation [Power of Assimilation]” Ⅵ “Fourth Note. Its Logical Sequence [Logical Sequence]” Ⅵ “Fifth Note. Anticipation of Its Future [Early Anticipation]” Ⅵ “Sixth Note. Conservative Action upon Its Past [Preservative Addition]” Ⅵ “Seventh Note. Its Chronic Vigor [Chronic Continuance]” Notes 151 Bibliography 185 Indexes 207 Preface As I have explained in the “personal introduction” to the first chapter, this book is the outgrowth of my lifelong study in the history of biblical interpretation, as amplified more recently by my consideration of the analogy between this history and the history of constitutional interpretation. Several lectureships over the past ten years have given me the opportunity to organize my reflection on this analogy further: appointments at the University of South Carolina ten years apart, as Knowlton Scholar in 1993 and as Beacham-Hall Lecturer in 2003; the inaugural Colman J. Barry Lecture at Saint John’s Uni- versity, Collegeville, Minnesota, in 1995; a lecture at Woods Hole, Massachusetts, in 1999; my designation as the first John W. Kluge Scholar at the Library of Congress in 2001–2, including a Kluge Public Lecture on 24 September 2002 to members of the Madi- son Council and the Scholars’ Council; the Philip McElroy Lec- ture on Law and Religion at the University of Detroit Mercy School of Law in 2003 for chapter 3; and then, for the entire book, the joint invitation of the Yale Law School and the Yale Divinity School also in 2003. On each of these occasions, I have had the benefit of comment and criticism from colleagues who study the interpretation of the Constitution or from those who study the interpretation of the Bible. I have also benefited from xi xii Preface the comments of anonymous readers of the manuscript for Yale University Press, who spotted a few mistakes that were relatively trivial but potentially embarrassing. Involving as it does two distinct interpretive communities in the academy, in each of which scholarly writing over the years has evolved its own special system of citation, this book seeks to blend the two methods: In citing my two primal texts, the Bible and the Constitution, I have followed the standard systems set down in The Chicago Manual of Style (14th ed.): for the Bible, 14.34–37; for the Con- stitution, 15.367 and 16.172 (employing the “Literal Print” au- thorized by the Eighty-third Congress in 1961, with its distinctive spelling, capitalization, and punctuation), including the provision that ordinarily such references be “made in running text” rather than in footnotes, which I have applied to both the Bible and the Constitution. Quotations of the English Bible are from the Re- vised Standard Version (RSV) unless otherwise identified as be- ing from the Authorized (“King James”) Version (AV), the New English Bible (NEB), or the New Jerusalem Bible (NJB). For Supreme Court opinions, I have adopted the conven- tional system as described in the Chicago Manual (15.369–71), ex- cept that I give only the actual page of the quotation or reference, not the opening page of the entire case. In the interest of aesthetic symmetry—if not exactly of “equal protection” (amend. 14, sec. 1)—I cite councils, synods, creeds, and confessions of faith by a similar system: 1.8 Westminster Confession, 2 Creeds 607–8 (1647). “Creeds” refers to Creeds and Confessions of Faith in the Christian Tradition, Credo to my companion volume for that set, and Chris- tian Tradition to my five-volume work, The Christian Tradition: A History of the Development of Doctrine (see Bibliography). But in referring to secondary scholarly literature, regardless of field, I Preface xiii have stayed with my usual “author-date” system of citation for both journals and books. Although I capitalize such titles as First Amendment and Epistle to the Romans, I do not follow the custom in both com- munities of a wholesale capitalization of names for doctrines (Coinage Clause, Real Presence). For dates, spelling of proper names, and general information and bibliography, I have relied on The Oxford Dictionary of the Christian Church (3d ed.) of 1997 (ODCC) and on its judiciary counterpart, The Oxford Companion to the Supreme Court of the United States of 1992 (OCSC). I am grateful to James H. Billington, Librarian of Congress, and to Prosser Gifford, Director of Scholarly Programs, for des- ignating this the first “John W. Kluge Center Book, Library of Congress.” This book is dedicated to the memory of my longtime friend and colleague, Edward Hirsch Levi (1911–2000), who was Dean of the Law School, then Provost, then President, of the Univer- sity of Chicago, and subsequently Attorney General of the United States in 1975–76, as well as, from 1986 to 1989, President of the American Academy of Arts and Sciences, the office in which I succeeded him from 1994 to 1997.* This dedication is a recog- nition of him as in a special sense doctor utriusque iuris, who, as the grandson of rabbis, proved himself faithful to this distin- guished heritage by serving as a mentor to several generations of lawyers as well as of non-lawyers (including this non-lawyer) on the science and the art of legal reasoning and constitutional in- terpretation. *I had the privilege of paying a memorial tribute to Edward H. Levi in the Bulletin of the Academy for May–June 2000, pp. 16–19. Normative Scripture— Christian1 and American The law his meditation night and day (Ps 1.2 NEB) A Personal Introduction In spite of my own preferences and contrary to my long-standing wont, I have let myself be persuaded, by those who ought to know, that it would be appropriate to begin this seemingly un- likely (perhaps even presumptuous) investigation with a personal note of explanation of why it does not at all represent the attempt of a historian of Christian doctrine to retool himself into a con- stitutional lawyer, but a continuity of interest and even of meth- odology. For in an academic variant on the familiar come-on line, “So what’s a nice person like you doing in a place like this?” students, colleagues, and friends have repeatedly asked me— sometimes “challenged” would probably be more accurate—to justify why a cultural and intellectual historian whose bibliogra- phy includes monographs on a broad range of literary and phil- osophical texts, from Plato’s Timaeus to Goethe’s Faust, should 1 2 Normative Scripture have devoted the greater part of a long scholarly career to the unfashionable enterprise of editing, translating, and interpreting the creeds, confessions, and biblical exegesis of the church.