A Lesson About the Constitution
One of the byproducts of the Elena Kagan confirmation going on this week is the opportunity to better understand how the American Judicial System works in relationship to our Constitution. Â On NPR’s Talk of the Nation last week they presented a discussion that helped explain different views of how to interpret the Constitution and why those views are important.
There are two basic views that can be taken when interpreting the Constitution; an originalist view that basically states that law should be interpreted in black and white terms based on what is written and that if there is a flaw in the law that it must be amended by congress rather than affected by a judicial opinion, and a living constitutionalist that believes that law must be interpreted over time since laws that were written to apply specifically in one context and time period may not make sense in a different context and time period.
The value of an originalist view is that judges can’t just “make it up as they go along,” and on the surface seems to make common sense. Â The downside to this view is that while there are many laws written into the constitution that are very specific and black & white, there are many that are left intentionally vague and require an interpretation. Â Take, for instance, this example from the NPR discussion:
And then there are phrases like cruel and unusual punishment. It seems to me that phrase almost asks judges or justices to think what’s cruel and unusual punishment today? The fact that someone could have been put to death in the 1700s, the 1800s, for a theft, even if the person was 12 years old or 15 years old, how many people would think that that is not cruel and unusual punishment today, to execute a 12-year-old?
So the critics of the Scalia view say you’ve got to, in effect, take terms like unreasonable search and cruel and unusual punishment and to some degree reflect how we understand those words today.
It should be clear from this example how judicial interpretation plays a vital role in applying the Constitution and why it’s challenging to hold a simple “black & white” view of the Constitution.
A Lesson About the Bible
In Brian McLaren’s new book, A New Kind of Christianity, he warns about the dangers of reading the Bible like a constitution; stating that by reading the whole of the Bible like a constitution we miss the original intent and context of the literature and instead try to prove that we are right in our religious views by referring to specific “black & white” proof texts (i.e. “The Bible says it, I believe it, that settles it”).
I think that the same criticism that can be made of strict Constitutional Originalists can also be made of Biblical Literalists except worse because although there are places where the Bible is either vague or short of specific “black & white” answers about a topic, there is also no means to “amend” the Bible in order to clear up areas of uncertainty.
But in the same way that the Constitution can be considered a “living document” that needs to be interpreted over time in many cases in order to apply it to real life (including the danger that we could just “make it up as we go along” if we over interpret) I would state that a mature reading and understanding of the Bible is very much like a mature reading and understanding of the Constitution.
Brian McLaren shares a powerful story of the work being done by Musalaha, an organization committed to reconciliation between Palestinians and Israelis.
Whenever we bring Palestinians and Israelis together and attempt to talk about the history of our conflict, different and conflicting narratives emerge. Both sides think of themselves as peace-loving, innocent victims, and think of the other side as the aggressor.
The historical narrative of a people is the storytelling of the historical past of the people. It isÂ Â Â a reflection of reality as seen by these people. Other historical narratives may include the same historical events but seen from a different reality, a different perspective.Â Â In areas of conflict, a narrative tells the story of how the conflict was caused by the other side, how our actions are justified as self-defense and how the other people continue to violate our basic rights. Since the narrative paints its own people as heroic victims fighting evil, it is used as a powerful tool to motivate the people and the international community to fight on behalf of the people. The narrative is constantly repeated everywhere in schools, media and conversations and has become imprinted in the minds of the people to such an extent that it is perceived as historical truth and often mistaken for history. Although a historical narrative does contain historical facts, it only gives a subjective, selective one-sided perspective of the whole truth.
If you value truth and accountability than the mistakes people make are areas where you can feel justified in keeping score, holding grudges, making judgements, etc.
If you value grace and forgiveness you can easily become the passive victim of those mistakes over and over again and that person never gets the chance to grow or correct their behavior.
But when you value both equally than you can push the people around you to be better than they are and still love them and accept them while they’re not. Â Truth creates a gap between what is and what ought to be; grace rushes in from behind to fill the space so that love can remain and the cycle can continue.
That’s one of my favorite paradoxes of the Christian faith.
The Israeli/Palestinian crisis has been getting a lot of attention lately because of the flotilla incident that occurred last week. If you’re like me then you probably have grown up with a general awareness that there is strong racial/religious/political tension in that region, but don’t really understand the back-story.
My friend, and traveling writer/photographer, Britt linked to a great article yesterday from 1947 that was written by then reigning King Abdullah about the coming conflict in Palestine before the fact.
What would your answer be if some outside agency told you that you must accept in America many millions of utter strangers in your midstâ€”enough to dominate your countryâ€”merely because they insisted on going to America, and because their forefathers had once lived there some 2,000 years ago?
Our answer is the same.
And what would be your action if, in spite of your refusal, this outside agency began forcing them on you?
If you haven’t heard, the Evangelical movement in Uganda has stirred a violent anti-homosexual movement that is in the process of trying to pass a bill that would make homosexuality an illegal act that’s punishable by death.
This is a heartbreaking documentary that shows what can happen when our religious convictions become blinders by which we fail to seek justice and mercy and instead allow fear to lead to greater evils.
No matter who you’re mad at in this case I think if we focus on the anger we’ll miss the real secret villain here…Fear. Â The reality behind all of the vitriol you can see on every news program, magazine and social media channel is that we’re currently getting a huge humanity reality check. Â We all assume that if we make mistakes we will be able to fix them, and if we can’t then someone bigger than us will come by and fix it for us. Â Unfortunately we’re being told that there is no quick fix to this disaster and makes us mad because somebody, somewhere SHOULD be able to make this stop.
But they can’t.
Because we’re not that big, and it’s not all “under control,” and we’ve never really been safe, and we’re capable of making big messes faster than we can rescue ourselves from them.