In both Scriptural interpretation and in legal interpretation there are people who insist that the only appropriate way to interpret either the Scriptures or US law is by the principle of “according to the textual meaning.” If they are strict, they insist that one must be an originalist. That is, it is not sufficient to interpret according to the way it is written but even more according to the way in which the original writers intended for it to be interpreted.
The theory that writings ought to be interpreted solely according to the textual meaning has not worked in either Christianity or in law. The major problem is that people simply do not agree on what was the textual meaning of the original writings in either Christianity or in the Constitution. Whether Christianity or the Constitution, each group within them tends to quote their favorite writers and tends to interpret the text in accordance with those favorite writers.
This is why we have over such a mix of denominations. We have over 200 recognizable denominations in the USA. In addition, there are over 35,000 non-denominational churches of many types with over 12,000,000 members. The overwhelming number of the non-denominational churches, and many of the denominations theoretically believe in interpreting Scripture according to the textual meaning. The reality is that they interpret Scripture more according to their favorite author, be it Saint Paul or John Calvin or John Wesley, etc. So, what is the textual meaning?
USA law has had less of an issue with large number of interpretations. Of course, one can find fringe legal scholars that claim that the Constitution and the laws have been being misinterpreted. But, they are considered fringe. There are arguments between originalists and those who believe in a more dynamic interpretation, and there are moderates between those two poles. In large part that is because we inherited a legal system from England that was not a pure according to the textual meaning approach.
Oddly enough, Anglo-Saxon law solved the problem of textual interpretation in the same way in which the Early Christians solved it. For Early Christianity, the received Tradition limited the ways in which the Scriptures could be interpreted. Keep to the traditions you received from me, cried Saint Paul, whether verbal or written. That became the cry of the Early Church. As new challenges in interpretation rose up, if they were not already addressed in Tradition, then an Ecumenical Council would be called. There the saints of the Church did look again at the received written text, but also at the received writings of the Early Church Fathers. A binding decision was issued. That system worked for 1,000 years until the Great Schism, but it was not until the Reformation that the system was fully destroyed by people charging that the Early Church Fathers knew little.
A similar system is found in Anglo-Saxon law, but instead of Tradition what Anglo-Saxon law developed was the system of precedents. Eventually, that system became known as “common law”. What is common law? Common law is “the part of English law that is derived from custom and judicial precedent rather than statutes. Often contrasted with statutory law.” And, a secondary meaning is “the body of English law as adopted and modified separately by the different states of the US and by the federal government.” That is, Anglo-Saxon law works by statutes and common law. In passing, there is one exception. The State of Louisiana does not follow common law rules. But, this can be explained by their French background in the Napoleonic Code which functions differently than Anglo-Saxon law.
This is why so many Supreme Court candidates will state that, if possible, they will not violate precedent. In our inherited system of law, precedent (common law) has the same function as Holy Tradition does for the Orthodox and the Roman Catholic. Common law limits the ways in which a judge may interpret the law. For a judge to rule against precedent is to guarantee that the judgment will be appealed, maybe all the way to the Supreme Court. The Supreme Court functions for us as almost an Ecumenical Council. There representatives from various beliefs are gathered together to give a final interpretation. Rarely will the Supreme Court fully overturn a prior ruling. It has happened, but is rare because the role of the Supreme Court is not merely to interpret the original writings but also to ensure that the common law is taken into account.
But, why are judges–and the Supreme Court–so loath to violate either the written word or the way in which that word has previously been interpreted? Because it would lead to the same instability as is found within Christianity nowadays. Over 35,000 non-denominational churches, remember? If any judge could change the common law without care; if any Supreme Court was willing to change its mind purely based on the philosophical makeup of the court at that time, it would lead to legal chaos.
Imagine if your Miranda rights were taken away tomorrow by the Supreme Court? Imagine if all anti-trust laws were declared unconstitutional and Amazon, Walmart, Google, and AT&T could merge into a super-company with no fear of competition? If you are a business, imagine that all the laws giving certain privileges to small businesses were all done away with because all businesses must be treated alike? Imagine the chaos if every time a judge changed, whether local, state, or national, you had to fear that the rulings upon which you had relied would be thrown away? Precedent, that is, common law, stabilizes the legal system and prevents chaotic changes in interpretation in the same way that Holy Tradition used to for the Church.
Regularly, various groups scream and shout when a judge’s decision or an appeal court’s or a Supreme Court’s decision goes against them. Almost always they try to claim that this is not what the Constitution says. Almost always what they are really saying is that my interpretation of what the Constitution says should rule over all. While it is true that the makeup of the Supreme Court can influence the final decisions of the Court, have you not been surprised at the number of unexpected decisions by the Court? By unexpected, I mean decisions in which either a supposed “conservative” or a supposed “liberal” member of the Court voted with the “other side.”
Often the reason for the unexpected decision comes down to common law. The judge who unexpectedly supposedly sides with the “other side” is really siding with some precedent or other. Their personal feeling might be to vote the other way, but their analysis of the tradition of interpretation of that particular type of law shows them that what they would prefer has not been held before. In fact, I would argue that all 9 judges on the Supreme Court tend to honor precedents and generally tend to bend over backward to explain why their decision is not really violating precedent. It is rare that a Supreme Court judge will openly flout precedent and state that the precedent is wrong. That is because we are Anglo-Saxon statute AND common law based. Even originalists like Scalia would find themselves explaining why they thought that a precedent had been misinterpreted more often than he argued to do away with it.
So, here is my caution. When precedent means nothing, you get chaos. One only need look at the current Supreme Court appointment interviews to see that while the Republicans did not violate any law four years ago, yet they appeared to violate precedent, first back then and now by failing to keep their word from back then. Depending on who wins the election and who wins the Senate, these violations of precedent may lead to what is being called “packing the court.” Here is what is interesting. Packing the court is fully legal. There is no limit set in the Constitution concerning the number of Supreme Court judges. The President can nominate as many as he wants and the Senate can approve as many as they want. The only thing that would be violated is precedent. That is, unless precedent is being destroyed by our current actions. In such a case, then we will become like Christianity and the Court could eventually grow to way too many members as each side takes power and promptly appoints enough judges to tilt the Court in their direction.
So, be very careful when you claim you want to be an originalist. There is nothing wrong or improper about wanting a conservative interpretation of the law and a non-expansive judiciary. But, the reason that we have 27 Amendments to the Constitution is that the Constitution was not a perfect document. That also means that 27 times we found that a purely originalist interpretation was not adequate and, in the case of slavery, was even evil and immoral. More than that, look at Christianity. Do you really think you can get several hundred million people to agree on your definition of originalist? No you are likely to get the legal equivalent Evangelicals, Fundamentalists, Pentecostals, splinter groups like the Jehovah’s Witnesses, etc. All of those groups claim to interpret the Scriptures as they were written. It has not led to stability has it? Be careful what you desire.
Bravo!