I have a lot of friends who are immigrants, many of whom are Muslim, and an at-least-equal number of friends who are native-born Americans (several of whom are also Muslim). Among many in both groups are people who express confidence in the US Constitution to serve as a bulwark against any abuse or deprivation of civil rights and constitutional liberties on the part of the new Administration. Without exception, they have an almost religious reverence for the Constitution as the secular equivalent of Martin Luther’s “mighty fortress”. As someone who also reveres the Constitution – a secular faith I came to rather late in life -- and who shares that almost-religious regard for the Document, I have no wish to disabuse them of this attitude. But I want their reverence to be a historically informed reverence, realistically tempered by a clear-sighted recognition that the US Constitution, like all things human, suffers from many human limitations, limitations that have, in the past, been leveraged to achieve ends contrary to the principles enshrined in the Document. This “Skeptic’s” column is for them: the people whose regard for the Constitution is the product more of (understandable) innocence than of sober knowledge.
The US Constitution is like any other text – one’s grocery list, your car’s owner’s manual, the instructions for assembling your new bookcase from Ikea, etc. – which is to say it is always open to interpretation. Always. Consider Herman Melville’s Moby Dick. How many ways has Moby Dick been interpreted over the years? How many meanings have been assigned to it? Certainly thousands. Most likely millions. Or the Bible … same questions. The World Christian Encyclopedia estimates that there are something like 30 thousand different Christian denominations -- just counting Protestants alone -- each with its own idiosyncratic reading of the Bible, readings that are often, to varying extents, different from the other 29,999 readings. (Different readings are, after all, why there are different Christian denominations in the first place.) Granted, this number depends on how you define “denomination,” e.g., whether you count “Southern Baptist” and “American Baptist” as different denominations. Same with Islam: different interpretations of the Qur’an, sometimes informed by differing glosses from the hadith, account for differences among Muslim groups, ranging from rigorously doctrinaire Wahhabism to Sufi mysticism. Furthermore, within each denomination, there are differences as to the methodology one uses to interpret the Bible, Qur’an, etc. Ditto Moby Dick. The point? Texts are always interpreted, even when the interpretation is unconscious and taken for granted. The phrase "text with no room for interpretation" is an oxymoron.
The US Constitution is no different: what the Constitution means is influenced by – most would say determined by – how the Constitution is read. But – again, like any other document – the Constitution is never … and I mean literally never … read, that is to say interpreted, in an interpretive vacuum. Like Moby Dick, like the Bible, like the Qur’an, like Ikea assembly instructions, etc., the Constitution’s text is “always already” embedded in a context. What is beyond the text “always already” is decisively influential in determining the meaning we ascribe to the text. Most of the time we are unaware of most of this context, and have to make a special effort to become aware of it – rather like detecting dark matter surrounding a galaxy. Very often, this is harmless at worst, and beneficial at best. For example, when the First Amendment says “Congress shall make no law … “ (emphasis added), the context is the Framers’ concept of federalism: the Federal legislature shall make no law, but the States at a lower echelon of the federalist system still had the power to make laws designating a church or denomination as the “official” State church. Federalism is a messy way of doing the Nation’s political business, but it lends great flexibility to different parts of the country in addressing local issues. But not all aspects of the Constitution’s context are similarly benign. The Constitution is also susceptible to being interpreted in terms of cultural biases that are inconsistent with constitutional principles.
Perhaps the most obvious example of such an inimical bias is slavery. In 1857, the Roger Brook Taney Supreme Court issued the infamous Dred Scott decision, whereby – so declared Chief Justice Taney – black persons “had no rights which the white man was bound to respect”. The Dred Scott opinion was founded on the enculturated bias, almost universal in Europe and North America, that Africans, even free Africans, were intrinsically inferior to whites. Chief Justice Taney, writing for the Court in Dred Scott, asserted that
[African Americans] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.
Furthermore, as Frederick Douglass noted in his critique of the Dred Scott ruling, Taney averred that the Court’s holding was founded, not only on the beliefs of the Founders, but on natural law, antecedent even to the Constitution.
We are not free of equivalent biases even today. In fact, there are ominous signs that, with the dawning of a new conservative, even authoritarian, era in the American political climate, certain cultural demons we once dared to hope had been exorcised from the body politic, may be making a comeback in terms of how courts in the Trump era will interpret the Constitution. As was the case with the alleged “inferiority” of black people, many of these interpretations will be founded on junk science. One of the primary rationalizations of the belief in such inferiority was founded on the long-since-discredited pseudo-science of phrenology that purported to infer intelligence and aptitude for cultural advancement from the shape of an ethnic group’s head. Black people were inferior, so the argument went, because they had a sub-optimal head shape. Similar pseudo-science is relevant in two areas:
o Abortion and reproductive rights
In pro-life circles, one often hears it argued that science has conclusively proven that the fetus is a human person from conception. Since the fetus is a human person from the moment of conception according to science -- so it is argued -- draconian restrictions on a woman’s right to choose abortion are more than justified. However, “The fetus is a human person” is not a scientific statement, simply because “person” is not a scientific concept. Ultimately, person-hood is a metaphysical, and in the final analysis, religious, concept. Consequently, any law regulating abortion that is predicated on the alleged person-hood of the fetus is a through-the-back-door smuggling of religious teaching under the color of civil law, which is forbidden by the “establishment” clause of the First Amendment.
At some point during the Trump Presidency, it is quite likely that an attempt will be made to overturn the Roe and Casey decisions, and that such an attempt will rest on the already-flawed foundation of some kind of fetus-as-person argument that will appeal to scientific findings as its rationalization. (Significantly enough, neither Roe nor Casey assumed anything about the "metaphysical" nature of the fetus. Instead, both adopted a "phenomenological" stance, recurring to “viability,” an updated version of the “quickening” criterion of the 18th and 19th centuries, to determine the permissibility of abortion.) This line of argument is all the more likely, given the prevalent ignorance and misunderstanding of the nature of science and the scientific method characteristic of contemporary conservatism, especially its more extreme forms as represented in evangelical / fundamentalist religious groups.
If interpreted through the distorting lens of pseudo-science, the Constitution could be interpreted in such a way as to violate the “establishment” clause of the First Amendment by imposing a covertly religious bias on laws governing abortion. As with Dred Scott, the actual text of the Constitution would not change, of course, but the prevailing interpretive bias would.
o Rights of sexual-orientation minorities, including marriage equality
We can be equally confident that a deeply conservative “Trump court” will at some point seek to overturn rulings like Windsor and Obergefell on marriage equality by similar appeals to junk science, in this case, junk science asserting that protections specifically intended to protect sexual-orientation minorities are unjustified because -- so "science" allegedly tells us -- minority sexual orientations are matters of free choice. If race and sexual orientation are both genetically determined and beyond the control of the individual – as real science indicates -- then one cannot simply “pray away the gay,” in which case civil rights legislation is necessary to protect both groups’ rights as “discrete and insular minorit[ies]”. But if sexual orientation is a matter of choice, then the latter is not necessary. Or so it might well be argued. Seen through that distorting lens, constitutional texts about “equal protection” and “due process” do not apply: one’s ostensible choice of sexual orientation has placed one beyond the ambit of both guarantees. One has chosen not to be protected.
If interpreting the Constitution were a purely objective task like determining the speed of light, there would be no problems. But then, if the meaning of the Bible or the Qur’an could be determined with similar objectivity, then the Protestant Reformation and the religious wars of the 1600s and their intra-Muslim counterparts would never have occurred. But such is not the case. Interpreting texts – any texts – always involves, in fact, mostly just is, a deeply subjective affair vulnerable to cultural biases and personal prejudices. This is why James Madison referred to bills of rights as “parchment barriers”. Ultimately, the only real protection is citizen action: putting the Constitution into practice.The Constitution will protect us only if we first protect it.
James R. Cowles
Cuneiform / Hebrew document ... Bernardo de Azevedo da Silva Ramos ... Public domain
Dred Scott ... Photographer unknown ... Public domain
Chief Justice Roger Brook Taney ... Library of Congress ... Public domain