To be sure, there is great security in constitutional interpretation that is based on a close textual analysis. And Justice Scalia has been labeled a textualist, even if he himself seems to prefer the original intent approach to divining constitutional meaning. He is clearly on to something in analyzing history for constitutional clues. For, as our most recent presidential election underscored, the general public has become dangerously deficient in its understanding of both history and Constitution.
The fly in the ointment for Scalia’s own worldview was also on display that weekend in Vancouver. After dazzling both the law students and attendees at a Protestant legal association convention with his commonsense approach, the justice horrified many with an extremely ideological Saturday evening dinner speech. Under the guise of a presentation focused on Thomas More—only a few days earlier declared patron saint of politicians by the pope—Scalia shocked his listeners with an in-your-face apology for his Catholic activism. It raised questions about the bias of his historical analysis. And yet, at the same time it underscored an issue that we often choose to overlook. We are too ready to ignore “original intent” in negotiating the ideological shoals.
The world of today is so different that those patriots of 1776 could not have imagined the landscape we inhabit. But we have very clear evidence of what they wanted to protect against . . . and clear evidence that we are drifting against newly risen rocks of the type they had barely escaped.
Jefferson, Madison, and others lived as close to the Reformation (Luther was summoned to Worms in 1521) as we live to their day. They knew why reformers like Luther, Zwingli, and Wycliffe sought to recapture the pure Christianity of the Bible. They knew the price in martyrs’ blood that accompanied the efforts to throw off a religiopolitical power that took the claims of God as its own (Luther did not use the term Antichrist lightly).
They knew too how persistent the overbearing nature of a state church proved to be in England even after the Reformation. They had observed various Colonial attempts to export this pattern to the New World. In framing the Constitution they put a pause on the tendency.
Yes, they were men of the Enlightenment, who knew, as did all scholars, that the explosion of intellectual awareness followed causally in the train of Reformation freedoms. Yes, they were products of a generally Anglo-Saxon Protestant culture that accepted without negative analysis the norms of morality and public usage that implied—hence the “anomalies” of “In God We Trust” on coinage in a “new secular order,” which by design kept religion and the state apart. And they were suspicious of “papists” for historical, theological, and national reasons. This we know as part of their “original intent.” Certainly the downside to this was a persistent anti-Catholicism, which, while reinforcing the need to separate church and state, also also denied full privileges to its adherents. But today that has changed in ways the framers could not have imagined.
Several years ago the World Lutheran Federation signed an agreement with the Vatican, whereby both parties deemed Luther’s split with the Catholic Church as merely a misunderstanding. (It was more than a little ironic that within months the Vatican announced a general indulgence as part of the Jubilee celebrations. Ironic, as the indulgence issue led directly to Luther’s proclaiming the biblical view of righteousness by faith.)
Just last year in a New York Times article, Chuck Colson made a point of saying that “the gulf created by the Reformation has been bridged, and today Protestants and Catholics stand together as the largest religious block in the country.” This has indeed changed the dynamic in church-state issues and removed most people’s fear of blending the two to some degree. But how does this jibe with the original intent of the framers?
The United States is truly the battleground for a culture war, which often pits the militantly secular against the militantly religious. Original intent would have us affirm that the founders’ vision could never have embraced a state purged of Christian moral values. But the use of the state to enforce them would hardly comport with their well-stated views.
The “original intent” of the Moral Majority or the Christian Right seems to have been to rally people of faith to make a difference in society. This we should all do. But clearly frustrated with an inability to shift mores through conventional means, this movement is now clearly willing to use the arm of the law to advance its agenda. This cannot jibe with the founders’ original intent—at best it is reminiscent of the sad experiments
in a number of the original colonies. They merely replicated the intolerance of the Old World and led directly to a Constitutional Congress repudiating that
tendency.
It’s remarkable how consistently in the current church-state debate the principals are ready to throw over or deny the “original intent” of their position. Why this is so could easily occupy several times the editorial space. Some of the answer lies in historical amnesia. Some must be ascribed to the almost pathetic hope that by submerging ideology, our more enlightened age can avoid the horrors of the past. I don’t think the wise men of the republic would have bought that one.
Liberty magazine began publication 95 years ago. Its original intent was to proclaim a liberty that is Bible-based and supportive of the wonderful protections of the U.S. Constitution. The first issue appeared at a time of considerable agitation for Sunday laws and other religious legislation. My predecessors saw great danger to religious liberty. And yes, they saw this in some degree because of a prophetic template that they shared with the body of the Seventh-day Adventist believers.
How the world has turned since “original intent” set things in motion. We are now witnessing in the United States an unprecedented rush to move over “the wall” of separation between church and state. State money to churches for programs that to some degree embody their faith mission is the issue at hand. But of course, this is but the beginning. We are now in some ways at “the end of history,” as Hoekema put it—where the processes appear to have worked themselves out. We are willing to describe historical “original intent” in quite the Orwellian way. The Reformation is over, as headlines early in the reign of this present pope announced on his first U.S. visit. Old prejudices won’t work anymore. Let’s declare the new crusade as a battle of faith against the secular. And let’s get Uncle Sam to enlist.
Lincoln E. Steed
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