Tuesday, January 22, 2008

Living Constitutionalism And The Science/Torah Debate Part II

Yesterday I wrote about an important debate I had about the conflict between science and Torah. Today I want to talk about a second debate, and how it has come to influence my thinking on Judaism.

About two months ago Noyam responded to a challenge to provide an "intellectually honest justification" for a living constitution. It's not Noyam's response that is important for this post (although I suggest you read it because it is quite good) but rather my take on the Living Constitutionalism (LC)/Originalism debate. The debate got me thinking about the issue I'm going to post about. But first a little background is in order.

As long as our Constitution has existed, there has been a debate how to best interpret it. Today there are number of schools of thought, but the two most popular interpretative methodologies are Originalism and Living Constitutionalism (LC). Put very basically, Originalism argues that the Constitution should be interpreted according to its original meaning, which is how the people at the time understood it. LC, however, believes that the meaning of the text should evolve over time to coincide with the moral values of the populace at any given time. I'd like give an example, but the originalist camp has become so large, and the disagreements within the camp so profound, that it's hard to find a case where Originalism and LC clearly reach opposite conclusions.

But I'll try. Many originalists believe that the Constitution does not protect a right to abortion. The Supreme Court in Roe v. Wade found a right to abortion in the 14th Amendment's Due Process Clause. They argued the states could not impinge on a person's liberty right (which, partly based on precedent, they interpreted to mean any law that infringes on a fundamental right). Since they believed that the right to have an abortion was derivative of the right to privacy, which was a fundamental right, they held the state could not ban abortions unless they had a compelling interest. The state had such an interest when protecting a viable fetus or the mother's health, but they could not ban first trimester abortions.

This reasoning coincides with LC. The term "Liberty" is ambiguous. While Liberty in the 19th Century might have not included the right to terminate a pregnancy, today's moral standards do (let's leave aside the question whether that is actually true). We should interpret the Constitution to accord with our standards today, not the views of 18th Century men.

Many Originalists look at Roe as the paradigm of constitutional interpretation gone wrong. If the Constitution is supposed to be interpreted according to its original meaning, and the term "Liberty" did not include a right to abortion when the 14th Amendment was enacted (as evidenced by the restrictions on abortion during that time), then the Constitution cannot prohibit abortion.

Originalists make a number of arguments in support of their theory, but they most often make a normative argument. Everyone would agree that judges cannot just disregard laws. No LC would allow a judge to completely ignore a law because he didn't find it to be moral. Why not? Because when laws are enacted, they are the will of the majority of our citizens and judges do not have the power to simply disregard laws legislated by society. If that's true, then they cannot disregard the meaning of the laws either, because doing so would be no different from ignoring the laws themselves. And the meaning of the laws were what the laws meant at the time they were enacted because that's what the laws were designed to mean. So changing meaning is the logical equivalent of changing the actual laws.

The simple (and weak) response, which is the one heard most often, is that the Constitution was written hundreds of years ago in a very different time. We cannot allow an 18th or 19th Century moral understanding to dictate the meaning of the terms in the Constitution. The Constitution must be flexible or it will become irrelevant. Originalists have a good response to this problem: amend the Constitution. If you want to protect a woman's right to choose, then amend the Constitution to include such a right. Believe the Bill of Rights applies to the states? Amend the Constitution to bind the states. And so on.

At this level, the Originalist clearly has the upper hand. If the Constitution is binding on us, we cannot just change its meaning, especially when the Constitution itself includes a mechanism for making that change. The fact that the Constitution might be antiquated isn't very relevant.

But that's the whole question: why assume the Constitution is binding on us? My generation never ratified it, and I surely never did. It was written by white, landowning males over 200 years ago. Many Americans, if not most, are descendents of people who immigrated to the US long after the Constitution was ratified. So why should it bind us?

This is a very serious problem, and one which the majority of Originalists (though not all) simply gloss over. The LCs, however, have a solution. They argue that the Constitution itself isn't actually binding because it lacks a normative basis. We are not bound morally because we never consented to its authority. So what gives it its normative basis? The Constitution is normatively binding if its interpretation imposes a moral obligation. Assuming we are bound by moral obligations, the Constitution becomes binding if its clauses are moral. The judge's task, then, is to interpret the Constitution in a way that imposes a moral obligation upon us.

So let's assume that the moral view today is that women have a right to abortion. The state then passes a law banning all abortions. Such a law can be struck down if the Constitution is interpreted morally; if the 14th Amendment's Due Process Clause is interpreted morally, the "Liberty" element will mean "the right to terminate a pregnancy." We will then have a moral obligation to allow women to abort and that obligation will overrule our personal opinions that women should not be allowed to abort.

There is a lot more that can be said on the legitimacy of LC or on whether Originalism is a superior method of constitutional interpretation, but that's for another post. Now I wish to talk about how Living Constitutionalism and the science and Torah debates are related.

What's the connection between my argument with FKM and the LC argument? Both FKM and most Originalists start with an assumption that is insulated from challenge and then start their arguments from there. FKM starts with the assumption that the Torah is divine and Originalists assume the Constitution is binding on everyone. If we start at that point of the argument, the opponent begins at a large disadvantage.

But if we challenge those assumptions, the argument will take a different turn. Both LCs and Orthodox Jews believe those assumptions are accurate. All Orthodox Jews believe the Torah is divine (in some sense at least). All LCs believe the Constitution is binding to some extent (if they didn't, why would we engage in the charade of constitutional interpretation?). Where they disagree with their opponents is why. First we'll look at LCs. LCs, as related earlier, believe it is binding because its interpretation results in moral obligations. Therefore they allow the normative basis to influence how the Constitution is interpreted.

This might be very abstract so I'll compare the LC view to Randy Barnett's understanding of the normative basis of the Constitution. Put simply, Barnett believes the Constitution is normatively binding because its original meaning leads to just outcomes. If that's true, the Constitution must be interpreted with an eye towards effecting just outcomes. In Barnett's view, adhering to the original meaning will lead to the most just outcomes as a whole. So Barnett's method of interpretation is greatly influenced by what he considers the Constitution's normative basis. In other words the second step of the argument (interpretation) is directly derived from the first step (finding legitimacy). LCs do the same thing, but tie the two steps into one. The second step (interpretation) is the first step (legitimization).

The same idea applies to the science and Torah debates. How we understand science's relationship with Torah must be influenced by what basis we have for the Torah's divinity. Remember the only reason to ignore creation science is because the divine Torah trumps its reliability. Our belief in the divinity of the Torah must be more justified than our belief in the reliability of creation science, or we cannot legitimately choose Torah over science. All Orthodox Jews believe the Torah is divine, but what is the basis for that belief?

I believe the Torah is divine because I have faith, but others might argue we should believe it to be G-d given because of sense experiences. Either way, unless our basis for our belief in the Torah's divinity is stronger than the basis of our belief that the universe is billions of years old, we cannot choose Torah over science.

Opponents of a more liberal approach to this issue put the question of the Torah's divinity in a black box and start the argument at step two. Step one is determining a basis for the belief of the Torah's divinity. Step two is arguing how to relate a divine Torah to scientific truths. Step two must relate to step one. There is no other way.

Tomorrow I hope to post about how step one and step two relate.

No comments: