Interpreting Scripture & the U.S. Constitution

Jesus told his disciples in his famous Sermon on the Mount: “Do unto others as you would have them do unto you.” Commonly known as “the golden rule,” this maxim has formed the bedrock of Western ethics for two millennia and is widely considered by philosophers to constitute the essence of the moral law. Yet, this simple dictum belies an elusive message that has led to its commonly being misinterpreted. Quite simply, when these words are taken at face value, Jesus could not possibly have meant what he said.

This occurred to me one day as I lay on the sofa, writhing in agony from a bout of influenza. Wishing to provide me with some small measure of comfort, my wife bent down, threw her arms under my shoulders, and applied a gentle but firm squeeze, at which I shrieked, “What are you doing? Can’t you see I’m in pain?”

“I’m only giving you a hug,” she replied, obviously not a little hurt by my outburst.

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“I don’t want a hug,” I said, this time more contritely, feeling a bit guilty. “I only want to be left alone.”

You see, when I am ill or in pain, I care only to withdraw into my own private world, left alone to weather out my misery in solitude. I don’t want anyone to touch me or even to talk to me. My wife, however, is the exact opposite. No matter how much she is suffering, she always welcomes the embrace of a family member. By hugging me, then, she was merely applying the golden rule as she understood it. She was doing to me as she would have me do to her. The problem was that we had totally different desires regarding the way we wanted people to treat us. By doing to me as she would have me do to her, she was actually treating me in a way I did not wish to be treated. Conversely, by withholding my own touch to her when she was ill, I was treating her in a way she did not wish to be treated.

This anecdote illustrates the problem in trying to interpret the golden rule in isolation from its broader context. If we literally do to others as we would have them do to us, we will sometimes act in ways that cause them hurt, which I hardly think was what Jesus had in mind. We know this because Jesus also told us to love others as we love ourselves, and knowingly aggravating someone by doing something you know they don’t like is not exercising love. So, then, what Jesus really meant was: Do unto others as you would have them do unto you, assuming that both of you share the same desires. But wait. Jesus could not even have meant that. Consider another example:

A disabled man with no scruples about euthanasia finds his life no longer worth living. He solicits assistance from his like-minded wife, asking that she help him commit suicide. Now, if the woman takes the golden rule at face value (even our revised version above), she will certainly comply, for that is how she would wish to be treated. In doing so, she would indeed be obeying the letter of the law as Jesus prescribed it. But would she be obeying the spirit of that law?

To comprehend the spirit of that command, one would have to know Christ’s intent, and the only way to know that is by considering the broader context of his teachings. Yes, the Lord did say that we should do unto others as we would have others do unto us, but he also said many other things of moral import, including that we should not commit murder. So, once again, we must revise the golden rule to state something like the following: “Do unto others as you would have them do unto you, provided that (1) all parties involved share the same desires and (2) the thing being done is morally licit and not contrary to any of God’s commands.”

This tendency to interpret words in isolation, apart from their broader context and the obvious intention of their authors, burgeoned in the twentieth century, reaching its zenith in the school of deconstructionism, where, for instance, it became anathema for a reader to interpret a novel or a poem by discerning the author’s intent (say, in light of comments the author may have made in an interview). Meaning, the deconstructionists argued, is not something that objectively resides in a text, imparted there by its author and patiently awaiting our discovery of it. Rather, meaning is indeterminate until it has been socially constructed by an audience. What the deconstructionists did in the realm of literary criticism was essentially to take the old idealist dictum “There is no ‘there’ out there” and turn it inward: “There is no ‘there’ in there.” The only there in a text, they said, is the there we construct as readers.

Undoubtedly, a grain of truth resides in this theory when applied to works of fiction, for authors themselves are not always aware of the messages they intend to convey through the words and actions of their characters. However, when authorial intent is completely divorced from the interpretive process, the reader is given unwarranted latitude to refashion the text according to his or her ideology. Hence, we see Marxist critics who find class warfare lurking beneath every narrative they read, feminist critics who find misogyny as the motive for every plot, and Freudian critics who see the repression of sexual energy as the driving force behind so much of what characters say and do. (It was Shakespeare’s Oedipal guilt, Freud told us, that governed Prince Hamlet’s bizarre behavior.)

Fortunately, the damage inflicted is negligible when we misinterpret a novel or a play. There is a domain, however, where the stakes are high and the damage inflicted is irreparable: Constitutional analysis.

During the twentieth century, it became vogue to interpret the Constitution the way that some readers interpret a poem: in virtual isolation of its broader historical context. Judicial pragmatists began using deconstructionist-like techniques when interpreting the Constitution, telling us that it is a living, breathing document that must be continually reinterpreted in light of evolving standards of justice and morality. The quintessential example of such thinking is the right to privacy that the Supreme Court discovered in the Fourteenth Amendment in Griswold v. Connecticut (1965) and later used as a basis for its ruling in Roe v. Wade. A great thinker once said, “Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction.” That thinker was Thomas Jefferson who wrote these words in a letter to Wilson Carey Nicholas in 1803. Unfortunately our judiciary has done exactly what he warned against: it has made a blank check of our Constitution—a piece of legal tender that can be made out to and endorsed by the latest ideological fads.

This is not to suggest that we can always discern with certainty what the founding fathers had in mind with regard to every word and phrase in the Constitution. For one thing, the fathers themselves were far from unanimous in their political views. Furthermore, misunderstandings occur often enough between people having face-to-face conversations. How much more should we expect interpretive difficulties when we try to ascertain the intentions of someone removed so far in time and space? But it is one thing to plead ignorance and do the best we can to divine how a particular word or clause would have been understood at the time (e.g., by examining the historical context). It is another thing altogether, however, to summarily dismiss the framers’ intentions as irrelevant.

When interpreting any text, we must approach it, as best we can, from the perspective of those to whom it was initially written. If we want to comprehend the teachings of Plato, we must learn about ancient Athens—its culture, its philosophies, its language. If we want to understand the works of Chaucer, we must know something about fourteenth-century England. And if we wish to properly interpret the Bill of Rights, we must understand Colonial America—its laws, its language, its culture, and its controversies. Because language is dynamic, words invariably change meaning over time. It would be futile to try to understand the Canterbury Tales without first procuring a Middle English dictionary, or at least a thoroughly annotated edition. The word “wood,” for example, meant “insane” in Middle English, a meaning far removed from the semantics the word has today. Does this suggest that Chaucer’s Tales no longer mean what they used to mean? Have the stories evolved in meaning over the centuries, requiring us to visit them afresh in light of contemporary English usage and social sensibilities? Of course not. Yet this is exactly the way some would have us interpret the Constitution.

A salient example of this can be seen in the controversy over capital punishment and the Eighth Amendment’s prohibition against cruel and unusual punishment. For the record, let me say that I am in no way advocating the death penalty. With Pope John Paul II, I believe that it should rarely if ever be applied. Nevertheless, I do take issue with those who argue that capital punishment in any form (even lethal injection) constitutes cruel and unusual punishment and that it is therefore unconstitutional. Consider the words of former Supreme Court Justice William Brennan, an outspoken proponent of this view:

[T]he State, even as it punishes, must treat its citizens in a manner consistent with their intrinsic worth as human beings…. The calculated killing of a human being by the State involves, by its very nature, an absolute denial of the executed person’s humanity…. For me, then, the fatal constitutional infirmity of capital punishment is that it treats members of the human race as nonhumans, as objects to be toyed with and discarded. It is, indeed “cruel and unusual. (William J. Brennan, Jr., “Construing the Constitution” [Transcript], UC Davis Law Review [1] 1985, p. 13.)

To the late Justice Brennan, the death penalty is cruel and unusual because it denies the executed person’s humanity, treating him or her as a nonhuman. But how do we go about determining what the Constitution means by the phrase “cruel and unusual punishment”? The hermeneutic of Justice Brennan and likeminded exegetes is to interpret the terms according to our contemporary society’s standards of morality. Such reasoning, however, is problematic on more that one count. First of all, it simply is not true that Americans on the whole find the death penalty barbaric. According to a 2012 Gallup poll, 63% of Americans support capital punishment for convicted murderers. For the sake of argument, though, let us assume different numbers. Suppose 99% of Americans opposed the death penalty and considered it to be barbaric. Could we then conclude that the practice is unconstitutional according to the Eighth Amendment? No. We do not interpret the words “cruel” and “unusual” as Americans in the twenty-first century might understand them, but by the way they would have been understood by Americans in 1789. While it is true that abolitionists existed in Colonial America, they were a very small minority, as evidenced by the fact that most colonies had death statutes for a wide range of offences, including piracy, burglary, counterfeiting, and horse theft. And while even a few of the founding fathers had scruples about punishment by death (Benjamin Rush for one), most of the fathers, including Thomas Jefferson, viewed it as just and fitting for those convicted of murder or treason.

It is therefore difficult to argue with a straight face that Americans on the whole would have interpreted the phrase “cruel and unusual punishment” to encompass the death penalty per se. If the terms “cruel” and “unusual” were to have any meaning at all, we must assume that there were indeed methods of execution that crossed the line and were considered unacceptable (perhaps the electric chair would have been such a method had it existed then). But lethal injection? No way.

Again, I have no interest in defending the death penalty. My only intention (if that matters!) is to defend the Constitution. Judicial revision is a slippery slope. Not long ago the high court discovered a new meaning in the phrase “life, liberty, or property” that had devastating consequences for unborn children. What, then, is to prevent tomorrow’s court from reinterpreting the phrase “free exercise of religion” based on the evolving social standards of the moral elite?

Meaning in human discourse is a function of intention. When we divorce the communicative act from the intentions that gave rise to the act, we lose all hope of being able to comprehend the message embedded in that communication. Just as we must go beyond Christ’s words to his intended meaning if we are to understand the golden rule, so too must we look beyond the thin layer of ink on the Constitution to the meaning the framers had in mind when they bequeathed to us this magnum achievement.


  • Frank W. Hermann

    Frank W. Hermann, PhD, is associate professor of English at the Franciscan University of Steubenville.

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