At the outset let me state what might be called my first principles. As a Christian and as a citizen of the United States, I view the Constitution both as a constitutive document for this country and also a ‘living’ document. It is, like the Bible, a text that requires interpretation; it is not self-interpreting. Because I have taught constitutional law I cannot help but then think of the Constitution as connected to judges, ultimately to the Supreme Court justices. I place myself within the Reformed tradition, and so view government as an institution that can be used to achieve justice.
While today I readily affirm the Constitution’s importance in creating our governmental structure as well as setting out aspirations, I grew up in a faith tradition which did not affirm the Constitution because the document omitted any reference to God’s sovereignty over all of life. Some readers will be familiar with the Christian Amendment Movement and the National Reform Association. The amendment would have modified the preamble to read: “WE, THE PEOPLE OF THE UNITED STATES, [recognizing the being and attributes of Almighty God, the Divine Authority of the Holy Scriptures, the law of God as the paramount rule, and Jesus, the Messiah, the Saviour and Lord of all] in order to form a more perfect union, . . . .” It is always an interesting moment in my classes when I say that I did not grow up with the idea that the United States was or is a Christian nation. In fact, the opposite. The nation was deficient because as a nation it did not assert explicit loyalty to the Christian God. For many years, until the 1960s, my denomination did not support voting by its members, not out of Anabaptist convictions, but due to this omission in the Constitution. The denomination changed its view of voting in the 1960s. Part of my own migration out of that view and into a different was observing my father, in the Cabinet Room, being sworn in as chair of President Gerald Ford’s Consumer Advisory. He had to affirm that he would uphold the Constitution which he readily did.
I do not think of the Constitution as a free-standing document; it is grounded in the details of people’s lives as fleshed out in Supreme Court decisions. So when I think about the Constitution influencing how Christians thinks about public policy, I begin with the fact that the document ‘lives’ in the circumstances of people’s lives. Individuals and organizations, as well as other groups of people, come to the Court seeking a remedy for a perceived injustice.
Often the real people that look to the Constitution and other laws for redress have been stigmatized by society because of custom, tradition, religion, and law. Over the years I’ve become more and more convinced that when we talk about the Constitution we must talk about people, both those who wrote it, those who interpret it and then those who seek redress through it.
In this answer, I would like to focus on the Constitution as a legal text and how thinking about it from certain perspectives might better inform our thinking on public policy issues. As a Christian, I am indebted to schools of jurisprudential thought which remind me that the Constitution, along with statutes and common law traditions, was written and interpreted from certain perspectives, and is therefore a flawed document. I am indebted to critical legal studies for reminding me that in a flawed legal world, legal texts are interpreted in an ideological manner, that the meaning is often more indeterminate than some would admit, and that meaning is contingent. This is not to suggest that we cannot approach better interpretations, more just interpretations; it is only to acknowledge that the framers were not neutral observers and neither are contemporary judges. It seems to me that some Christians too easily adopt the dominant model of judicial decision-making asserted by liberal legal theory. This model views legal decision-making as primarily a deductive process, resembling a syllogism. It suggests that a judge need only discover the major premise which is the pertinent rule of law, review the facts of the case that constitute the minor premise, and apply the rule to the facts to produce decisions which are neutral and objective. According to critical legal theorists, law is not neutral but a way of keeping vested power intact. It is indeed Christian, in my view, to suggest that law and adjudication can never be completely neutral.
So in thinking about the Constitution, one needs to acknowledge that it is stand-point dependent. That is, to ignore the race, class, and gender of the framers is a serious error if we want to understand the reasons for their writing what they did. I am reminded of Frederick Douglass’s view of the U. S. Constitution. In 1849, he posed these questions: “The Constitution of the United States. What is it? Who made it? For whom and for what was it made? Is it from heaven or from men? How, and in what light are we understand it?” Douglass then goes on to note the sections of the Constitution which have to do with slavery and asserts that the document “was made in view of the existence of slavery, and in a manner well calculated to aid and strengthen that heaven-daring crime.” Critical legal theory would not appear until one hundred and twenty-eight years later, but Douglass would certainly recognize kindred spirits.
As a woman, I am well aware that the framers were men and that women were not considered part of the body politic. Suffragist Elizabeth Cady Stanton noted, “Thus far women have been the mere echoes of men. Our laws and constitutions, our creeds and codes, and the customs of social life are all of masculine origin.” What then must happen is for women to be placed at the center and their lived experiences taken into account, according to feminist theorists.
Critical race theory places race at the center of the analysis of law and the legal system. Just as there are gendered narratives within the Constitution so are there racialized narratives. Because race is a significant category of analysis, critical race theorists challenge the race-neutral idea of a colorblind Constitution, a tenet of liberal legalism. To seek a colorblind Constitution would be to ignore how racism is entrenched in institutions. Law professor Charles Lawrence argues that the notion of a color-blind Constitution is attractive and would be in fact a worthy goal in a world where individuals were valued as individuals. But the United States is not such a world.
These legal theories which highlight that laws, including the Constitution, reflect specific viewpoints, have been criticized for rejecting objectivity and relying instead on personal stories as the central narrative. But real lives matter.
These three legal theories—critical legal theory, feminist legal theory, and critical race theory—ask the same question that lay theologian and lawyer William Stringfellow (who also happened to be gay) did in the 1970s, namely, How does law [including the Constitution and Supreme Court decisions] victimize people? His question was rooted in his unswerving belief in the pervasiveness of the Fall.
Reinhold Niebuhr also was characterized by an “epistemological pessimism” because of his biblically grounded view of human nature. John P. Diggins has written that with Niebuhr there is “finitude, contingency, opacity and irony.” The same can be said of the three legal theories, albeit they do not begin with a biblically grounded anthropology.
What I have been attempting to do is to suggest that as a Christian one should recognize that the Constitution and Court decisions are grounded in certain narratives, such as racialized narratives. There is no innocent and completely objective interpreter of law. To say this is not antithetical to the biblical tradition but flows from it, both from the Fall and the Incarnation. Legal knowledge is but a subset of knowledge. And one can view the Incarnation as demonstration that knowledge is dependent on creation and thus is standpoint dependent. Former English professor at Seattle Pacific University Joyce Erickson has written,
The Incarnation as a fact of God’s interaction with the creation underscores the interdependence of human creatures and creation, an interdependence . . . evident in the way we know [sic] the creation. Surely this also ‘blesses’ the fact of ‘standpoint dependence’ as a condition of human knowledge. And the necessary interdependence of creation requires a variety of ‘standpoints,’ of experiences, for the fullest knowledge.
Knowledge is embodied, which is both glorious and problematic at the same time. The framers were rooted in 18th century America, with its time-bound customs and traditions and understandings. I honor the Constitution but must, as a Christian, read it with a hermeneutic of suspicion.
I would suggest that the Incarnation compels the Christian to place ‘the least of these’ at the center of analysis, those who have been stigmatized. In their respective interrogations of liberal legalism, critical legal studies, feminist jurisprudence, and critical race theory focus on categories omitted on purpose from traditional analysis, namely class, gender and race. Stringfellow wrote, “The presence of the Christian among the outcasts is the way in which the Christian represents concretely the ubiquity and universality of the intercession of Christ for all.” Likewise, a Christian when considering the Constitution and the decisions interpreting it must include ‘outcast’ categories in her analysis. To do so is truly to ‘see all things new.’
Law has occupied a hallowed position in the Judaic and Christian traditions. In the American tradition, the Constitution is one of our ‘sacred’ texts. But Jesus recognized that law oppresses when he said, “Woe also to you lawyers! For you load people with burdens hard to bear, and you yourselves do not lift a finger to ease them” (Luke 11:46 NSRV). In his unique way, Jesus demythologized a human institution. In Jewish society, a legal rule did not permit shepherds and women to testify in court—they could not ‘bear witness’. And yet it was to shepherds that angels brought word of Jesus’s birth and it was to women that angels announced Jesus was risen. The oppressive nature of the rule was unmasked.
In thinking about a Christian’s relationship to the Constitution, I think about law professor Mari Matsuda’s suggestion that people of color have a “double consciousness” about law, a consciousness which combines “deep criticism of law with an aspirational vision of law.” She cites Frederick Douglass as an example of this “double consciousness” choosing as he did to believe in the Constitution while rejecting a racist Constitution.
The Fall and the Incarnation create a “double consciousness” in the Christian who wishes to understand law, and in particular the Constitution and Court decisions. The Fall should prompt a “deep criticism” of law. Law can be, after all, an instrument of death. It put the Word to death. But it should not be rejected as completely irrational or completely indeterminate. It simply means that the law, including the Constitution, is one of the institutions upon which we rely for so much, is more deeply flawed than we may care to imagine. Also, if one is a gay Christian, a Christian of color, a Christian who is challenged because of a mental illness or physical disability, or any socially constructed identity which has been stigmatized in our society and has been a basis of social and legal discrimination then law, the Constitution and Court decisions are going to be even more skeptically scrutinized and should be. And if one is Native American, one’s relationship to the U. S. Constitution is even more complicated because tribes have an extraconstitutional relationship to the U. S. And there is and ought to be a strong hermeneutic of suspicion.
But despite its flaws, law is also an instrument of life. Law professor and Presbyterian minister Milner Ball has pointed out that while the law put the Word to death, in the gospel depiction of Jesus’s trial, the gospel never exonerates nor does it expressly condemn the law or its representatives. The Incarnation provides a basis for legal reform. I would suggest that a Christian can have a “transfigurative” vision of the Constitution, that “we, the people” becomes a place where all of us, in our very different, embodied lives have a place.
My focus in this initial piece for Respectful Conversations is to suggest various ways a Christian might look at the Constitution. Ironically, the skepticism about the Constitution in which I was raised continues but for different reasons. The Constitution is a necessary artifice which should never be an idol. From my perspective, critical legal theory, feminist legal theory, and critical race theory remind me as a Christian that law is no god. And, given the particular focus of this series, LBGTQ Christians realize that law is no god as well.
Drawing upon liberation theology and the work of Presbyterian theologian Walter Brueggemann, Thomas Shaffer, a Christian and emeritus professor of law at Notre Dame, suggests that the Christian faith subverts the legal order. The Psalms in particular depict a society in which the dominant class prevails, but God hears the voice of those who have been forgotten. The psalmist writes, “O Lord, you will hear the desire of the meek; you will strengthen their heart, you will incline your ear to do justice for the orphan and the oppressed, so that those from earth may strike terror no more” (Ps. 10:17-18 NSRV). The rule of law, including the U. S. Constitution and Court decisions, can be the ideology of the oppressor.
I return to Frederick Douglass. He wrote in 1845, “I love the pure, peaceable, and impartial Christianity of Christ: I therefore hate the corrupt, slaveholding, women-whipping, cradle-plundering, partial and hypocritical Christianity of this land.” Some might say we have come a long way in race relations since Frederick Douglass wrote. But one need only think about the Supreme Court’s decision gutting the Voting Rights Act in Shelby County v Holder (2013), the BlackLivesMatter movement or read Ta-Nehisi Coates’s Between the World and Me to know the law is still a long ways away from racial justice. Those of us who believe in a transcendent universe, rooted in biblical themes of the Fall and Incarnation, must bring a “double consciousness” to the Constitution, to the Court’s decisions and to public policies. Those who have not experienced oppression based on certain identities need to hear the stories of those who have. Out of a deep criticism based on these themes, we must say “yes” and “no” to the Constitution and always examining whether through interpretation of this ‘living’ document justice is diminished or advanced.