Moses and the Constitution
Let me not be understood as saying that there are no bad laws, nor that grievances may not arise for the redress of which no legal provisions have been made. I mean to say no such thing. But I do mean to say that although bad laws, if they exist, should be repealed as soon as possible, still, while they continue in force, for the sake of example they should be religiously observed. —Abraham Lincoln
It is surprising at times where insights will come to you. I was browsing the Internet and came upon a speech by a Supreme Court Justice of these United States, and it helped me understand some things about biblical law that I had not got quite straight. Christian people have a lot of difficulty with the law and sometimes take shortcuts in trying to understand it. One of the most common approaches is to divide the law into types. Thomas Aquinas divided the law into three types: moral, ceremonial, and judicial. Something like this is widely accepted by Christian people, allowing that the moral law continues, while the ceremonial and judicial have passed away.
So, how did Justice Scalia help me with this? The title of his speech was, “A Theory of Constitution Interpretation.” It seems to me that the big problem Christians have with biblical law is not so much the application of law, but the interpretation of law. You cannot justly apply it if you don’t understand what it means. Scalia began his speech by asking, “What is the object of the court?”
This is a matter of interest to not only judges and lawyers, but any intelligent American citizen, philosopher or not. What do you think your judges are doing when they interpret the Constitution? It's sad to tell you after 200 years, there is not agreement on this rather fundamental question: What is the object of the enterprise?
Well, I can’t say I am surprised, but what is not obvious is that this is not merely disagreement about the interpretation of a given law. Decisions have always been handed down in terms of, say, a five to four vote by the justices. But I think what Justice Scalia was saying is that there is no agreement on the object of the court—what are they there for?
In his speech, I learned something about constitutional law that I didn’t have straight. I thought that the Constitution should be interpreted on the basis of “original intent” and I assumed that Justice Scalia thought the same way. Not so. I learned that there is a marked difference between “original intent” and “originalism,” and the difference is more important than I had realized. Here is how Scalia explained it:
The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist . . . If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.
It is interesting to consider how that principle might apply when studying biblical law. What did the words mean to the people who first heard them? This is a tough challenge, because we are dealing with both linguistic and cultural issues in trying to get at the meaning of a given law. Still, in most cases, if we ask what these words meant when they were spoken by the Lord to Moses and when Moses wrote them down, we have at the least found a legitimate starting point.
It is striking to me that when you start examining law in any historical context, you keep coming upon the same principles. And so, following the judge’s example, we take the words of the text as they were originally handed down from Sinai and we consider how they might have been understood by the people who heard them. We can look for what Scalia calls, “the fairly understood meaning of those words.”
With the Bible, this is crucial, because we are looking at many laws that had a meaning in that culture that does not naturally carry over into our own. Let me give you an example:
Speak to the Israelites and say to them: “Throughout the generations to come you are to make tassels on the corners of your garments, with a blue cord on each tassel. You will have these tassels to look at and so you will remember all the commands of the LORD, that you may obey them and not prostitute yourselves by going after the lusts of your own hearts and eyes (Numbers 15:38-39 NIV).
It is evident that the custom in ancient times of wearing that fringe or tassel had meaning. Studies indicate that this custom was as well understood in that culture as the yellow ribbon is in ours, and it tended to serve a similar purpose—to make a public statement about who you are and what you stand for. The yellow ribbon has come to mean you have a loved one in the military serving far away. I think it may have originated with the yellow stripe down the leg of a cavalryman’s uniform, and his lover wearing a yellow ribbon in support of him. The custom has morphed into various other applications, such as the pink ribbon for breast cancer awareness. The blue tassel for Israel seems to fall in a similar category. It made a public statement that “I am a commandment keeper and a servant of Jehovah.”
I met a gentleman not long ago who was wearing a pair of tassels woven of white and blue. But I suspect he was wearing them, not so much as a sign to others, but merely because God said do it. I doubt seriously that one person in 10 whom he met would know what that tassel was supposed to mean, and thus it becomes meaningless. I have heard that some wear that blue ribbon on their underwear which makes it all the more irrelevant. The fellow I met had his tied to his belt under his jacket, and you could easily miss it. The Israelites were supposed to wear them in plain view. In some ancient societies, the tassel, not necessarily blue, was a sign of rank or status and they wanted it to be seen.
So here is what we have, in the meaning of the words to the people who first heard them: “In the tassels you ordinarily wear on your garments, you will always include a thread of blue.” Thus you remind one another of your God, his commandments, and his ways. It is worth noting that blue was one of the dominant colors in the decor of the Tabernacle. Thus it was a double tie to the worship of Jehovah. In a strange way, it is not unlike school colors.
For a society that does not wear tassels at all, the meaning of the law is lost. Even if you decide to wear a loop of blue ribbon on your lapel, people may realize that it means something, but will not know what. In the society of the time, it identified commandment keepers and worshipers of Jehovah to one another and it connected them to the Tabernacle.
In a way, it was part of the social contract of Israel. Two Israelites in a market in Damascus could spot one another by the ribbon of blue in the tassels on their robes. Circumcision, also a part of the social contract, couldn’t quite serve the same purpose.
It is tempting to dismiss the law of tassels as an Old Covenant practice that has passed away. The problem is that what we call the Old Covenant may still have application to an Israelite. Thus, we can understand what Jesus meant when he said the law was not going away.
Simply think of this as a custom of the time that no longer carries the meaning it once did. If you customarily wear tassels, then put a ribbon of blue in them. But if the custom doesn’t exist, there is no requirement to create it. It is also worth noting that this was a voluntary provision. I have not seen in the Bible anything resembling “tassel police.” Even if breaking the law was sin, compliance was still up to the individual.
Let me return to Scalia’s view of the Constitution. He noted that he does not use legislative history in interpreting the law:
The words are the law. I think that's what is meant by a government of laws, not of men. We are bound, not by the intent of our legislators, but by the laws which they enacted, which are set forth in words, of course. As I say, until recently this was constitutional orthodoxy. Everyone at least said that: That the Constitution was that anchor, that rock, that unchanging institution that forms the American polity. Immutability was regarded as its characteristic. What it meant when it was adopted it means today, and its meaning doesn't change just because we think that meaning is no longer adequate to our times. If it's inadequate, we can amend it. That's why there's an amendment provision. That was constitutional orthodoxy. When I say constitutional orthodoxy, I don't mean its just judges and lawyers. Judges and lawyers are not very important. It's ultimately the American people. What do they think this document is?
Now here we come across something rather different. God’s law is immutable, and there is no amendment process. But there is latitude for judgments to be made as to the implementation of the law. In some cases, there were courts where one could take difficult cases. In most cases, the elders of a given city sat in the gate (the equivalent of your county court house), and judged. But it was inevitable that hard cases would arise. What do you do when the matter is too hard for you?
Then shalt thou arise, and get thee up into the place which the LORD thy God shall choose; And thou shalt come unto the priests the Levites, and unto the judge that shall be in those days, and inquire; and they shall show thee the sentence of judgment (Deuteronomy 17:8-9).
This passage, all by itself, should tell us that the letter of the law was not the answer to every issue. Otherwise, there was no need for a judiciary. The law made provision for judges, due process, cities of refuge, and other issues important in governing a people. Moreover the decision of the Supreme Court was final:
And thou shalt do according to the sentence, which they of that place which the LORD shall choose shall show thee; and thou shalt observe to do according to all that they inform thee: According to the sentence of the law which they shall teach thee, and according to the judgment which they shall tell thee, thou shalt do: thou shalt not decline from the sentence which they shall show thee, to the right hand, nor to the left (vv. 10-11).
What is interesting about this system was that the choice of going to court was up to the individuals who were in dispute. If they could settle it themselves, they were free to do so. But once they brought it to the court, they were bound on penalty of death to accept the court’s decision. To do otherwise was considered a defiant sin. I suspect this had a positive effect on compliance with the court’s decisions.
So the meaning of the Law of God is immutable, but the judgments made under that law are not. Times and circumstances can change, and while the judgment still serves as a precedent, it can be changed. This is what Jesus was doing through much of the Sermon on the Mount. He made it plain that he was not abolishing the written law. But he certainly was correcting a lot of bad judgments that had been made by Jewish courts.
Then there is the interesting case of a woman who had been caught in the act of adultery. The Pharisees brought her to Jesus, not following due process (after all, it was none of his business; he was not a judge), but trying to cast Jesus in conflict with Moses.
Jesus declined to judge the woman, and in the process, illustrated a basic misunderstanding about biblical law. The Law of Moses required due process, just as our own Constitution does. If a man caught his wife in adultery, he couldn’t just take her out and kill her himself. There was a judiciary, and the woman had rights. She could not be deprived of life without a hearing. Furthermore, some assume that under the Law of Moses, an adulterer had to be stoned. Not necessarily. Joseph did not think to have Mary, the mother of Jesus, stoned when he found her with child, and the Law of Moses allowed for divorce instead of death.
In any case, someone had to want to carry out the penalty. The witnesses were to be the ones who cast the first stones. If they wouldn’t do it, no one else could. Jesus added one more criterion. If you were going to stone this woman, you had to be innocent yourself. Now that is not in the law. That is a judgment. And since it comes from Jesus himself, it carries a lot of weight.
Scalia presented an interesting illustration of the principles involved in originalism, citing the Nineteenth Amendment adopted in 1920 which gave women the right to vote. Scalia noted that, as an abstract matter, there was no need for an amendment to the constitution. There was, after all, an equal protection clause right there on the page. So why the national campaign of the suffragettes to get a new constitutional amendment? Why didn’t they just go to court on the basis of the equal protection clause? According to Justice Scalia, “Because they didn't think that way.”
“Equal protection,” he suggested, “could mean that everybody has to have the vote. It could mean a lot of things in the abstract.” He went on to explain:
It could have meant that women must be sent into combat, for example. It could have meant that we have to have unisex toilets in public buildings. But does it mean those things? Of course it doesn't mean those things. It could have meant all those things. But it just never did. That was not its understood meaning. And since that was not its meaning in 1871, it's not its meaning today. The meaning doesn't change.
Scalia made another interesting point about the original intent of the framers of the Constitution. Their intent mattered not in the least. What was important was what the people who ratified the words thought they meant, because it was only in the ratification that the Constitution became the law. This may also be important in thinking about the Ten Commandments. The people were, in a sense, ratifying the commandments when they agreed to a covenant in which the commandments played a part. What did they think the words meant?
One area which I have intuitively not trusted is the argument that the opinions of the Supreme Court should “reflect the evolving standards of decency of a maturing society.” It took Scalia to explain why this is a bad idea:
Now you know that Pollyanaish attitude is not the attitude that is possessed by people who adopt a bill of rights. People who adopt a bill of rights know that societies not only evolve, they also rot. And they are worried that future generations may not have the integrity and the wisdom that they do, so they say, “Some things we are going to freeze in, and they will not change.”
Common sense should tell us that is true, but common sense does not often prevail in political wars. The battles in the political arena are not about truth and justice, but about acquiring and retaining power. Scalia goes on:
We believe, the court believes, and worst of all the American people believe that not only the 8th amendment but the whole Bill of Rights, the whole Constitution, “reflects the evolving standards of decency of a maturing society.” Or, to put it more simply, the Constitution means what it ought to mean.
He said another thing that rather surprised me: “This is not, I caution you, a liberal versus conservative issue.” In truth, new rights are being created all the time on both sides. “So it's not liberal/conservative. It's modernist versus the traditional view of the Constitution.”
And this is a mistake I think we make all the time in talking about our political situation. There is a presumption in our society that modern equals good. We forget that societies do not always evolve upward. They also rot. Thus the need for stability, somewhere. It comes most naturally in the words of the written law. And this may be why Jesus said what he said about it. Here it is again:
Do not think that I have come to abolish the Law or the Prophets; I have not come to abolish them but to fulfill them. I tell you the truth, until heaven and earth disappear, not the smallest letter, not the least stroke of a pen, will by any means disappear from the Law until everything is accomplished (Matthew 5:17-18 NIV).
The written law, to Jesus, including the law about hems and tassels, was not going away. But then, he proceeded in that same message to interpret the various laws in terms of their original meaning. The application of the law, the judgments made on the law can change. Scalia again:
And finally I will mention the last deficiency of non-originalism. And that is, in the long run, it is the death knell of the constitution. As I suggested earlier, the whole purpose of the constitution[sic] is to prevent a future society from doing what it wants to do.
And in an important way, that is precisely why Old Testament law cannot be cast aside. It is there to prevent a future church from doing what it wants to do. And we could provide a whole list of churches that are doing what they want to do without regard to what the Law of God says they should do. Scalia:
That's the whole purpose. To change, to evolve, you don't need a constitution, all you need is a legislature and a ballot box. Things will change as fast as you want. You want to create new rights, destroy old ones? That's all you need. The only reason you need a constitution is because some things you don't want the majority to be able to change. That's my most important function as a judge in this system. I have to tell the majority to take a hike. I tell them, “I don't care what you want, but the bill of rights [sic] says you cannot do it.”
And the reason Jesus did not lay aside the written law is because there were some things he didn’t want the church to go changing. Scalia went on:
Now if there is no fixed absolute, if the Constitution evolves to mean what it ought to mean today. What makes you think the majority is going to leave it to me or to my colleagues to decide what it ought to mean? . . . So at the end of this long process, this great evolution from stuffy old originalism to an evolutionary constitution we arrive at the point where the meaning of the constitution [sic], the most important part of the constitution [sic], the bill of rights [sic], is decided upon by the very body that the bill of rights is supposed to protect you as an individual against. Namely, the majority.
There is, I think, a lesson in all this for the church. We have been tempted to interpret Scripture, not in terms of what the words mean, but in terms of what we think they ought to mean. And thus, we have made ourselves the arbiters of right and wrong. That has happened to the nation. And it seems to be happening to the churches. And we steer our ship, not by the stars, but wherever the winds and currents take us.
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