Is there a Catholic way to read the Constitution?
Supreme Court nominee John G. Roberts Jr. (Getty Images Photo / Alex Wong)
TWO WEEKS AGO, a George Washington University Law School professor named Jonathan Turley wrote an opinion piece in the Los Angeles Times claiming that Democratic senator Richard Durbin, in a private meeting with Supreme Court nominee John G. Roberts Jr., had asked his fellow Roman Catholic what he would do in a case where Church teaching and US law diverged. Roberts purportedly paused, then said he would probably have to recuse himself.
Durbin's office has denied the story (Turley has responded that Durbin himself was one of his anonymous sources), but the resulting flap has stirred up familiar questions over the role of faith in the public sphere. And because Roberts is Catholic, the debate has a special edge. Throughout the history of the United States, Roman Catholics have had to fight the charge of divided loyalties, the suspicion that the allegiance they pay the pope threatened to eclipse that which they paid the US Constitution.
In fact, Roberts's response to Durbin's hypothetical question, if true, would not be the first time a prominent Catholic jurist has struggled to reconcile the teaching of the Church with the words of the Founders. In a 2002 essay on capital punishment in the religious journal First Things, Justice Antonin Scalia--a man not typically wracked by doubt--recounted having consulted canon law experts on the finer points of the Church's opposition to the death penalty, an opposition he neither sees in the Constitution nor personally shares. ''As a Roman Catholic--and being unable to jump out of my skin--I cannot discuss that issue without reference to Christian tradition and the Church's Magisterium," Scalia wrote. He was relieved, he went on, to be told that the Church's stance on the matter did not rise to the level of ''binding teaching," freeing him to defy it.
However, according to Sanford V. Levinson, a law professor at the University of Texas at Austin and a leading constitutional scholar, there is another way to connect Roman Catholicism and the Supreme Court. Levinson argues that the tenets of Catholicism need not be seen merely as a competing set of dictates to be reconciled with constitutional law on fiercely contested issues like abortion, capital punishment, and sodomy. Instead, he proposes using Catholic ideas about tradition and scripture as a lens through which to examine American attitudes about the Constitution, a founding document that has been venerated and fought over in much the same way that Catholics and Protestants have fought over the Bible.
Levinson, in other words, has sketched out a Catholic constitutionalism. And in its way, what he sees has a strikingly liberal bent. In Protestant theology, especially the more conservative denominations, he pointed out in a recent interview, ''There's a real suspicion of the idea of change and development, not least because development would suggest that it hadn't been gotten exactly right 2000 years ago. Catholicism is much more nuanced in that regard. There are histories of doctrinal development, there are papal encyclicals, things get changed."
In other words, to look at the Constitution as a Catholic, Levinson argues, is to allow it to evolve.
These days, when Republican senator Sam Brownback of Kansas can convert from conservative Methodism to conservative Catholicism without any appreciable effect on his public profile, it's perhaps easy to forget that there are, in fact, fundamental differences that separate the Catholic and Protestant traditions. At root, they are disputes over interpretation of Scripture and the authority of the Bible.
''The notion of Biblical inerrancy, of Biblical literalism, is really un-Catholic," says Alan Wolfe, a political scientist and scholar of religion at Boston College. ''The whole point of having a priesthood and a magisterium [the Latin term for the Church's teaching authority] is to say that the Bible, while a supreme guide, is constantly to be reinterpreted. That's why you have the Church." For Catholics, in other words, coequal with the Bible itself is ''tradition," the accretion of interpretation and elaboration that the Church builds onto Scripture.
''That's exactly the point at which Martin Luther disagreed," continues Wolfe. Most Protestants reject the Catholic concept of tradition. For them, the sole authority is Scripture: the plain text of the Bible itself.
Of course, it's a commonplace to speak of the Supreme Court as a secular priesthood, and American veneration of the Constitution as a ''civic religion." Where scholars like Levinson go further is in mapping the gap between Protestant and Catholic theology onto different schools of constitutional interpretation.
Levinson, in an argument first made in his 1988 book ''Constitutional Faith," argues that disputes over how to interpret the Constitution descend from the original schism of the Reformation. ''Anyone seeking to examine the operation of the Constitution within the American polity," he writes, ''must come to terms with the implication and traces left over from the Reformation era."
The constitutional schism, as he sees it, runs along two different axes. The first is methodological, and concerns the source of doctrine. For ''protestant" jurists--originalists like Scalia and Clarence Thomas (both, ironically, devout Catholics)--that source is the constitutional text alone. For their constitutionally ''catholic" colleagues, however, the text is augmented by ''tradition," even unwritten tradition. These are the ''living constitutionalists" (in the words of former Justice William Brennan), justices like Ruth Bader Ginsburg and Stephen Breyer, who are willing to believe the Constitution has something to say about issues like abortion and gay marriage that the Founders never thought to mention in the document itself.
The second axis concerns who has ultimate authority to interpret the Constitution. And here the Catholic position takes on a more conservative tint. As Levinson points out, the Reformation wasn't just a dispute over how much to interpret the Bible, but over who gets to interpret it. For Luther and his followers it was the individual worshipper, not the Church hierarchy, who was best qualified for the task.
A ''protestant" jurist in these terms, then, is one who believes that individual citizens are ultimately responsible for interpreting the Constitution. Here again, there are gradations on the Supreme Court in this regard, with the more politically liberal justices (Ginsburg, Breyer, David Souter, and John Paul Stevens) willing to cede to Congress some interpretive role. Carried further, however, such protestantism yields the seemingly radical position, taken by a few legal scholars like Mark Tushnet, Larry Kramer, and Levinson himself, that legislators, not judges, should be the ultimate arbiters of the Constitution.
The more familiar ''catholic" position would leave that power concentrated solely in the Supreme Court. Unsurprisingly, few judges are judicial protestants. And, Levinson points out, federal appellate judges like Roberts, who work in the long shadow of the Supreme Court, are especially unlikely to challenge its monopoly on interpretation. As to a position on the first axis, the methodological one, Levinson believes Roberts ''has pretty much stayed away from committing himself."
In his book, Levinson notes that people are not always ''catholics" or ''protestants" in both realms. Levinson puts himself, for example, in the catholic region of the first axis and the far protestant end of the second. ''I am among the most 'protestant' people in the legal academy with regards to institutional authority," he says. ''That may reflect the fact not only that I am Jewish, but was born and raised in a small North Carolina town and many of my friends were Southern Baptists. They believed anybody who reads the Bible is empowered to offer his or her opinion as to what it means."
But not everyone accepts Levinson's schema. Robert P. George, a political science professor and scholar of religion at Princeton University, expresses ''grave doubts" about the idea that scriptural and legal interpretation have anything to do with each other. In an e-mail, he points out that the Constitution and the Bible are very different documents, and the Catholic magisterium a very different sort of authority from that of a law court.
''If some people are inclined to be more respectful of precedents than others, even where they regard the precedents in question as erroneous," says George, ''it probably has less to do with some people tending towards a 'catholic,' and others a 'protestant,' view of the role of tradition and authority in constitutional interpretation than it has to do with competing views about the social importance of stability in the law."
As an example, he points to the judicial differences between Scalia and Thomas. The fact that Scalia tends to show more deference to precedent than his colleague is most likely not due, George argues, to a greater Catholic faith, but simply a ''somewhat more cautious view about the need for stability in the law." The fact that both are originalists, of course, presents a further problem to Levinson's taxonomy.
In Levinson's eyes, George's response overemphasizes the difference between the workings of the Church and the state. If, he says, ''a particular bishop is trying to decide at what point a political figure can be denied Communion for collaboration in abortion"--something a few bishops suggested doing in the case of Senator John Kerry, who supports abortion rights, during the last election campaign--''I view this as somewhat similar to debates that were held in the past on at what point can you be viewed as committing treason."
And a few prominent jurists do fit Levinson's mold. Hugo Black, for example, who had been raised in the ultra-fundamentalist Primitive Baptist Church, was a Supreme Court justice vehement in his insistence on the strict application of the exact language of the Constitution. He was legendary for carrying around a well-worn copy of the document itself, meditating on it constantly and brandishing it in argument like a Bible-thumping preacher.
Still, Levinson readily admits his contrast between legal ''catholics" and ''protestants" is more of a heuristic than ''a hard-and-fast scientific truth." He makes no claim that knowing how a judge spends his Sundays will explain his rulings.
''The example I use as the quintessential methodological 'catholic' and living constitutionalist was John Marshall Harlan, and I have no idea what his religious views were," he says. (Harlan was a Quaker.) ''If I was going to treat this more as an exercise in social science it would require a very, very complicated analysis of people's actual lives."
Nor, he concedes, are debates about interpretation of Scripture unique to Christianity. Similar disputes roil Islam and Judaism. Indeed, he says, ''If I were writing for a very different audience I think I would have offered the notion more of a Talmudic constitution rather than a Catholic constitution. I simply assumed more people would be familiar with Catholicism and Protestantism."
Drake Bennett is the staff writer for Ideas. E-mail firstname.lastname@example.org.