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  • Reverend James Squire

Why The Supreme Court Got It Wrong

After the recent “extreme” decisions of the Supreme Court regarding abortion, privacy laws, open carry gun statutes, or what the EPA can do related to climate change, 60% of the American public say that they got it wrong. The key word that has not been used enough is interpretation. People can look at the same text and come up with polar opposite interpretations of what the Constitution says. Originalists claim that they go back to the original interpretation of the words and the context. Yet when a defense is made of the recent decisions, the Court and anti-abortion movement essentially say that abortion isn’t mentioned in the Constitution and others who are pro-abortion proclaim that so are many other things that have been addressed by the Court. The possible peril is the way that the Court interprets the word liberty! Talk about a word subject to many interpretations!

Let me take you down memory lane a bit about interpretations, same concept but different field. When I was a student at Berkeley Divinity School at Yale, we were taught both the literalist and contextualist interpretations of the Bible. A literalist looks at the Bible and applies the words to what they mean now so you can bring your conservative or liberal interpretation to them. For the most part that is what an originalist interpretation of the Constitution does although they frequently throw around their interpretation of context of the Constitution. It is called eisegesis.

The contextualist looks at the Bible and struggle with what the words of the Bible meant then plus the context of the times. They don’t read into the text as they try to pull from the text. It is called exegesis. A simple example is the interpretation of the word “know.” I often would say to students that if I called their home and told their parents that the student knew a great deal, they would be met with praise. If I made that same phone call in biblical times, their parents might ground them for a long period of time because to “know” someone in the biblical sense was to have sex with them.

In addition to this, there is the assumption that people actually know what the Bible or Constitution say. In the Episcopal Church all seminary graduates have to take three days of Canon Law Exams to move through the process that leads to ordination. They are like medical or law board exams. Every graduate school wants to make sure that their students pass them as it reflects on the institution. So, just to make sure that we knew the Bible from beginning to end in detail beyond issues of interpretation, one of my classmates who was a former Baptist taught us the content in a highly recommended (think required) night course in the pure content of the Bible. It was called Baby Bible. We use to joke that our classmate could put a pin through a Bible, and he would know every word that it passed through.

As an aside, back then you weren’t given a whole lot of notice when the Canon Law Exams would be given. The exam was three days, eight hours a day exam. Vicki and I set our wedding date in Raleigh only to find out that a week after our wedding, I would have to sit for the exams in Philly. It was a short honeymoon!

Why do I mention my classmate who taught us the content of the Bible as a narrative? You may recall Khizr Khan, a Muslim patriot, who spoke at the Democratic Convention. During his address he pulled out a $1 pocket size version of the Constitution. His son had died during the war in Iraq. Trump would go on to belittle him every chance he got. As Khizr Khan waved his pocket edition of the Constitution in the air, he proclaimed referring to Trump: “You have sacrificed nothing and no one.” He was really raising the question if Trump was even familiar with the Constitution.

I think the smart money would question whether Trump, Gaetz, Greene, Boebert, and others had even read the Constitution let alone been intimately familiar with it.

The problem with the literalist interpretation or originalist interpretation is that you are always bringing your personal perspective to it. People who voted against Roe V. Wade are denying that their conservative view entered into their decision. It is why you have liberals and contextualists looking at the same document and coming up with two different perspectives. As I noted, the conservative judges focused on the word liberty and their interpretation of that word. Anyone who is surprised that the new conservative Trump appointed judges would vote the way they did, need to wake up and smell the coffee.

Now what holds the two different views, literalist and contextualist, together? In ethics we call it the “test of time.” In law it is the same thing but called precedent. Precedent is CRITICAL. That has been absent in these recent deliberations and that puts us in dangerous waters.

We need Khizr Khan back! He needs to address our nation. He needs to pull out his $1 pocket size edition of the Constitution and make the point that we should know the words, and know that it is not made out of cement. It is a living document that is subject to interpretation as many Americans think that recent decisions are right there in the Constitution where they can read them. They are not. The Constitution is subject to INTERPRETATION with the importance of certain laws STANDING THE TEST OF TIME. You can change it by voting. When you vote you will be bringing your interpretation to the Constitution. Your perspective is more important than the conservative or liberal interpretations on the Supreme Court. VOTE!

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