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Christian Scripture and American Scripture: An Instructive Analogy?

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Interpreting the Bible and the Constitution. By PelikanJaroslav. Yale University Press2004. Pp. xiii, 216. $30.00. ISBN: 0-300-10267-4.

Published online by Cambridge University Press:  24 April 2015

Gregory A. Kalscheur S.J.
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Extract

As a Jesuit priest whose ministry includes the teaching of constitutional law, I regularly struggle with the task of interpreting two foundational normative texts: the Bible and the U.S. Constitution. The Bible plays a central normative role in the life of the Church, while the Constitution provides a normative framework for American law and politics. These texts ground the ongoing lives of both the Church and the American political community. Both of these textually constituted communities face the challenge of appropriating for contemporary experience a normative text produced in a significantly different historical context. But can American constitutional lawyers learn anything from the ways in which the Bible has been interpreted within the life of the Church?

Jaroslav Pelikan, eminent historian of the Church's doctrinal tradition and Sterling Professor of History Emeritus at Yale, believes that those engaged in the enterprise of constitutional interpretation can indeed learn something from the history of biblical interpretation. Drawing on a life-long “study of the twenty centuries of interpreting Christian Scriptures,” Pelikan offers his new book, Interpreting the Bible and the Constitution, in the hope that it “may be of some help and illumination … to those who stand in the tradition of the two centuries of interpreting American Scripture.” (37)

Type
Articles
Information
Journal of Law and Religion , Volume 21 , Issue 1 , 2006 , pp. 101 - 142
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2005

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References

1. Cf. Garet, Ronald R., Comparative Normative Hermeneutics: Scripture, Literature, Constitution, 58 S. Cal. L. Rev. 35, 37 (1985)Google Scholar (characterizing the interpretation of normative texts as a distinct “species of moral reflection”).

2. See Pelikan, Jaroslav, The Christian Tradition: A History of the Development of Doctrine (U. Chi. Press 1971–1989) (a five-volume work)Google Scholar; Pelikan, Jaroslav, Creeds and Confessions of Faith in the Christian Tradition (Yale U. Press 2003)Google Scholar (a four-volume work) [hereinafter Pelikan, Creeds]. See especially vol. 4 of Pelikan's, Creeds and Confessions, entitled Credo: Historical and Theological Guide to Creeds and Confessions of Faith in the Christian Tradition (Yale U. Press 2003) [hereinafter Pelikan, Credo]Google Scholar, which examines die use of the Bible in creeds and confessions and the use of those creeds and confessions in the life of the churches. Pelikan notes:

[t]here is a direct continuity between that inquiry and [his current book], which compares the several versions of official hermeneutics that the councils and confessions of the church over the centuries have applied to Christian Scripture with the several versions of official hermeneutics that the Supreme Court over the centuries has applied to American Scripture. (3).

3. Pelikan also promises that “the theme of ‘Christian Scripture and American Scripture,’ as a comparative study of methods of interpretation, can be especially poignant, important, and instructive.” (18).

4. Pelikan developed the concept of “binocular vision” in describing Harold Berman's innovative approach to studying the interrelationship of law and religion. See Pelikan, Jaroslav, Foreword to The Weightier Matters of the Law: Essays on Law and Religion xi–xii (Witte, John Jr. & Alexander, Frank eds., Scholar's Press 1988)Google Scholar. Given Berman's example, Pelikan contends that “there should now be no excuse for scholars in either field to go on using a monocular instead of a binocular.” Id. at xii. See also Witte, John Jr., Law and Protestantism: The Legal Teachings of the Protestant Revolution 29 (Cambridge U. Press 2002)CrossRefGoogle Scholar: (“The binocular of law and theology … brings into focus a considerably wider and fuller picture of the Lutheran Reformation than can be seen through the monocular of law or the monocular of theology alone ….”); Witte, John Jr., A New Concordance of Discordant Canons: Harold J. Berman on Law and Religion, 42 Emory L.J. 523, 547 (1993)Google Scholar: Berman's “binocular of law and religion” allows us to “gain wholly new insights even into sources and subjects that no longer seemed capable of new interpretation”; “Through Berman's binocular, one can see much more in these subjects than conventional viewpoints have allowed.”

5. Witte, John Jr. & Arthur, Thomas C., The Three Uses of Law: A Protestant Source of the Purposes of Punishment? 10 J.L. & Relig. 433, 433–434 (1994)CrossRefGoogle Scholar.

6. Constitutional historian Edwin Corwin, for example, opened a well-known monograph with this sentence: “The Reformation superseded an infallible Pope with an infallible Bible; the American Revolution replaced the sway of a king with that of a document.” Corwin, Edward S., The “Higher Law” Background of American Constitutional Law 1 (Cornell U. Press 1955)Google Scholar. See also Perry, Michael J., Morality, Politics & Law 136 (Oxford U. Press 1988)Google Scholar:

There is an important analogy between, on the one hand, the role of the sacred text and the activity of interpreting the text, in the life of a religious tradition and community, and, on the other, the role of the constitutional text and the activity of interpreting the text, in the life of a political tradition and community.

See also Garet, supra n. 1; and Grey, Thomas C., The Constitution as Scripture, 37 Stan. L. Rev. 1 (1984)CrossRefGoogle Scholar. Pelikan, however, contends that most prior considerations of this parallel “focused on the question of the authority of the two texts rather than on the question of the proper methods for interpreting them” (2) which is the question he has chosen to pursue.

7. See Levine, Samuel J., Unenumerated Constitutional Rights and Unenumerated Biblical Obligations: A Preliminary Study in Comparative Hermeneutics, 15 Const. Commentary 511, 511–512 (1998)Google Scholar:

As part of the continuing emphasis on hermeneutics in constitutional interpretation, a body of literature has emerged comparing constitutional textual analysis to Biblical hermeneutics. This scholarship has been based on the recognition that, like the Constitution, the Bible functions as an authoritative legal text that must be interpreted in order to serve as the foundation for a living community.

See also id. at 511 n. 6 (citing to the literature); Smith, Steven D., Believing Like a Lawyer, 40 B.C. L. Rev. 1041, 1065–1069 (1999)Google Scholar; cf. Balkin, Jack, Idolatry and Faith: The Jurisprudence of Sanford Levinson, 38 Tulsa L. Rev. 553, 571–578 (2003)Google Scholar, discussing Levinson's distinction between constitutional Catholicism and constitutional Protestantism and the dynamics of constitutional change.

8. This “gift in return” (37) is offered in gratitude for the recent scholarship in legal history that “has been making a major contribution to the study of theology.” (36) (citing the work of David Daube, Harold J. Berman and John T. Noonan).

9. Schneiders, Sandra M., The Revelatory Text: Interpreting the New Testament as Sacred Scripture (Harper 1992)Google Scholar.

10. Perry, Michael J., We the People: The Fourteenth Amendment and the Supreme Court (Oxford U. Press 2002)Google Scholar.

11. Cf. Scalia, Antonin, God's Justice and Ours, First Things 17, 17 (05 2002)Google Scholar (“the Constitution that I interpret and apply is not living but dead”); Rosen, Jeffrey, Modest Proposal, New Republic 21, 22 (01 14, 2002)Google Scholar (describing Judge Richard Posner's interpretive approach as a “crude … pragmatism that looks to a particular case and presumes to reach a result that, in the judge's view, would be best for the country”); compare Justice Scalia's opinion announcing the judgment of the Court in Michael H. v. Gerald D., 491 U.S. 110, 127 n. 6 (1989):

Because … general traditions provide such imprecise guidance, they permit judges to dictate rather than discern the society's views …. Although assuredly having the virtue (if it be that) of leaving judges free to decide as they think best when the unanticipated occurs, a rule of law that binds neither by text nor by any particular, identifiable tradition is no rule of law at all.

with Justice Brennan's dissent in Michael H., 491 U.S. at 141:

The document that the plurality construes today is unfamiliar to me. It is not the living charter that I have taken to be our Constitution; it is instead a stagnant, archaic, hidebound document steeped in the prejudices and superstitions of a time long past. This Constitution does not recognize that times change, does not see that sometimes a practice or rule outlives its foundations. I cannot accept an interpretive method that does such violence to the charter that I am bound by oath to uphold.

12. See Kaveny, M. Cathleen, Response to John T. Noonan, Jr., in The Catholic Theological Society of America Proceedings of the Fifty-Fourth Annual Convention vol. 54, 57 (Downey, Michael ed. 1999) [hereinafter Kaveny, Response]Google Scholar (noting that lawyers, judges, and theologians all share a vocation characterized by the call to “help transmit [their] tradition, attempting to carry it forward into new times, places, and cultural contexts with ‘creative fidelity.’”) (borrowing the term from Sullivan, Francis A. S.J., Creative Fidelity: Weighing and Interpreting Documents of the Magisterium (Paulist Press 1996)Google Scholar; Kaveny, M. Cathleen, Listening for the Future in the Voices of the Past: John T. Noonan, Jr. on Love and Power in Human History, 11 J.L. & Relig. 203, 207 (1994–1995) [hereinafter Kaveny, Listening for the Future]:Google Scholar

[B]ecause human nature is essentially social, and human society also moves within time, those of us who are living today stand in community and conversation with the dead. The shape of our minds and hearts is informed by the ideas and purposes of our forebears much as the shape of our bodies is informed by their genetic material. We manifest our fidelity to the persons of the past not in slavish repetitions of old formulas, but in sensitively attempting to discern the core purposes of traditional doctrine, and creatively applying it to a new situation. Such a process requires us both to understand and to judge our predecessors. In sifting through their thought we must separate insights of perduring value from the rough bundle of time-bound presuppositions and failures of will and vision which trap them.

See also Symposium, Fidelity in Constitutional Theory, 65 Fordham L. Rev. 1247 (1997)Google Scholar; Lessig, Lawrence, Understanding Changed Readings: Fidelity and Theory, 47 Stan. L. Rev. 395 (1995)CrossRefGoogle Scholar; Lessig, Lawrence, Fidelity in Translation, 71 Tex. L. Rev. 1165, 1264 (1993)Google Scholar (describing a notion of fidelity that offers “a way to understand how originalism can be dynamic without it being unfaithful.”).

13. Pelikan, Jaroslav, The Vindication of Tradition 58 (Yale U. Press 1984)Google Scholar.

14. The theological sense of the idea of development has its modern foundation in John Henry Newman's An Essay on the Development of Christian Doctrine. Id. Pelikan describes Newman's Essay as one of those “‘works in the history of theology of which we can say that after their appearance nothing was ever again quite the same.’” (119) (quoting Cameron, J.M., Introduction to John Henry Newman, An Essay on the Development of Christian Doctrine 7 (Cameron, J.M. ed., Penguin Books 1974) (originally published 1845))Google Scholar.

15. Pelikan, supra n. 13, at 59.

16. Id. at 58 (noting that such a capacity is one “mark by which to identify a living tradition”).

17. Pelikan uses the term Christian Scripture to refer to the Christian canon of the Bible, both Old and New Testaments. (14).

18. Because Scripture is usually taken to mean a product of divine inspiration that “goes on to produce ‘inspirations’ in its readers,” (18-19) Pelikan recognizes that the Declaration of Independence and the Gettysburg Address might be better described as American Scripture than the Constitution. Pelikan, however, insists that it is the Constitution which serves as Scripture in American law:

[I]t is the Thirteenth and Fourteenth Amendments, and above all the requirement of “the equal protection of the laws” (amend. 14, sec. 1), that has been the subject of controversy over the logic of textual exegesis, and therefore of judicial interpretation [in decisive cases like Brown v. Board of Education]. And that makes the Constitution the normative “American Scripture” in a sense that the Declaration of Independence is not. (22).

19. Employing Northrup Frye's notion of “Great Code.” See Frye, Northrop, The Great Code: The Bible and Literature (Harcourt, Brace, Jovanovich 1982)Google Scholar.

20. Citing Ackerman, Bruce A., We the People 25 (2 vols., Belknap Press 1991–1998)Google Scholar.

21. (25) (quoting Irenaeus, Rule of Faith of Irenaeus, in Pelikan, Creeds, supra n. 2, vol. 1, at 50; and Origen, , On First Principles 1.4–8Google Scholar, in id. vol. 1, at 64-65). See also id. at (25-26):

[N]either patriarchs nor councils could have introduced novelties amongst us, because the protector of religion is the very body of the church, even the people themselves, who desire their religious worship to be ever unchanged and of the same kind as that of their fathers.

Quoting Response of Eastern Orthodox Patriarchs to Pope Pius IX, in Pelikan, Creeds, supra n. 2, vol. 3, at 282 (emphasis added).

22. The “classic modern formulation” of the notion of the consensus fldelium was articulated by John Henry Newman in his 1858 essay, On Consulting the Faithful in Matters of Doctrine. (27) See Newman, John Henry, On Consulting the Faithful in Matters of Doctrine, in Conscience, Consensus, and the Development of Doctrine: Revolutionary Texts by John Henry Cardinal Newman 392–428 (Gaffney, James ed., Image Books 1992)Google Scholar. Pelikan notes that the consensus fldelium, largely as Newman understood it, “achieved official vindication” in Vatican II's Decree on the Apostolate of the Laity. (27) Newman's theology of doctrinal development plays a crucial role in Pelikan's comparison of biblical and constitutional interpretation. See text, infra Part II.

23. “The real significance of constitutional theory is, I believe, as a sign of the increased academification of law school professors, who are much more inclined than they used to be to write for other professors rather than for judges and practitioners.” (27) (quoting Posner, Richard A., Against Constitutional Theory, in The Unpredictable Constitution 219 (Dorsen, Norman ed., N.Y.U. Press 2002))Google Scholar.

24. Schneiders, Sandra M., The Revelatory Text: Interpreting the New Testament as Sacred Scripture 64 (2d ed., Liturgical Press 1999)Google Scholar.

25. Id. at 66. See Gadamer, Hans-Georg, Truth and Method 324–341 (2d rev. ed. 1994)Google Scholar. See also Cady, Linell E., Hermeneutics and Tradition: The Role of the Past in Jurisprudence and Theology, 79 Harv. Theological Rev. 439 (1986)Google Scholar.

26. Schneiders, supra n. 24, at 66.

27. Id.

28. Id.

29. Id.

30. Id. at 76-77.

31. Id. at 78.

32. Id. at 81.

33. Id.

34. Id. at 85.

35. See (50, 52) for Pelikan's criticism of Posner's suggestion that we haven't learned much about interpretation other than the fact that “interpretation is always relative to a purpose that is not given by the interpretive process itself but that is brought in from the outside and guides the process.” (50).

36. The stated purpose underlying Thomas Aquinas' commentaries on the books of the Bible was

“[T]o treat the text, not by reference to the reader's own interests, difficulties, or enthusiasms, even if they are inspired by his faith, but rather according to the internal order governing the development of the text and the arrangement of its parts.” Especially in the law, this method of study commends itself as a way of understanding any monumental text of jurisprudence.

(53) (quoting Chenu, Marie-Dominique, Toward Understanding Saint Thomas 250 (Landry, A.M. & Hughes, D. trans., H. Regnery Co. 1964))Google Scholar.

37. Quoting Black, Hugo, A Constitutional Faith 64, 66 (Alfred A. Knopf 1968)Google Scholar. Note that Black's statement, which he himself labeled “a confession of my articles of constitutional faith,” “could have come from a champion of biblical literalism.” (55).

38. Quoting Rochin v. Cat., 342 U.S. 165, 169 (1952). Pelikan notes that Chief Justice John Marshall similarly

put his exegesis into the context of a comprehensive theory of language and semantics, which would be applicable to the biblical no less than to the constitutional text: “Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense.”

(105) (quoting McCulloch v. Md., 17 U.S. 316, 414 (1819)). See also (44-45) (“the thickness of legal meaning” makes the need of interpretation a crux interpretum) quoting Cover, Robert M., “Nomos” and Narrative, 97 Harv. L. Rev. 4, 19–25 (1983))Google Scholar. Other shared interpretive ambiguities include the lack of any textually explicit prescription for a correct method of interpretation, questions within both traditions regarding the propriety of supplementing the text with some concept of natural law, and ambiguity within both law and theology with respect to the identity of the specific entity holding the authority to provide a definitive interpretation of the normative Scripture.

39. Citing Pelikan, Credo, supra n. 2, at 166-178. See also Kaveny, Response, supra n. 12, at 57: “No matter how flawed in her institutional manifestation, the church is and will remain a mystery, the body of Christ, and the gateway to eternal life—something that no legal or political tradition, however perfect, could ever hope to be.”

40. Citing 2 Cor 3:6: “[God] has made us competent to be ministers of a new covenant, not of letter but of spirit; for the letter kills, but the Spirit gives life.” (NRSV). See also (108), quoting Harlan, John Marshall, dissenting in The Civil Rights Cases, 109 U.S. 3, 26 (1883)Google Scholar:

“It is not the words of the law but the internal sense of it that makes the law: the letter of the law is the body; the sense and reason of the law is the soul.” …. By this I do not mean that the determination of these cases should have been materially controlled by considerations of mere expediency or policy. I mean only, in this form, to express an earnest conviction that the court has departed from the familiar rule requiring, in the interpretation of constitutional provisions, that full effect be given to the intent with which they were adopted.

41. Pelikan insists that the sensus literalis should not be taken to mean “the literal sense,” or “the literalistic sense,” but signifies “the original intent of the passage.” For example, Pelikan asks, what is “the original intent and sensus literalis of the petition” in the Lord's Prayer asking for “our daily bread”—is this simply a petition for bread? Luther, “a vigorous advocate of the sensus literalis,” held this petition to mean “everything required to satisfy our bodily needs.” Luther was answering the question, “What does this mean?” to pray for daily bread, not merely “What does the term ‘daily bread’ suggest to you by free association or according to a spiritual sense?” (77) (emphasis in original).

42. Quoting Griswold v. Conn., 381 U.S. 479, 484 (1965).

43. Within modern Catholic theology, the originalist impulse plays an important, if not exclusive role. Pelikan calls attention to the Second Vatican Council's Dogmatic Constitution on Divine Revelation, Dei Verbum, which:

stressed the authority of “the original texts of the sacred books,” and urged that “if the interpreter of Holy Scripture is to understand what God has wished to communicate to us, he must carefully investigate what meaning the biblical writers actually had in mind; that will also be what God chose to manifest through their words.”

(114) (quoting Dei Verbum, emphasis added by Pelikan). For the text of Dei Verbum see Vatican Council II: The Conciliar and Post Conciliar Documents 750–765 (Flannery, Austin O.P. ed., new rev. ed., Costello Publg. 1975)Google Scholar.

44. See Sink, Michael, Comment, Restoring Our Ancient Constitutional Faith, 75 U. Colo. L. Rev. 921, 937 n. 59 (2004)Google Scholar characterizing Thomas Campbell's Declaration & Address (1809) as the beginning landmark of the primitivist American Restoration movement.

45. (Emphasis in original).

46. Quoting Brennan's, Justice concurrence in Abington v. Schempp, 374 U.S. 203, 237 (1963)Google Scholar. Brennan's “critique[ ] could apply to the authority of original intent in the interpretation of Christian Scripture as well as of American Scripture.” (99).

47. Theopneustös is “the technical New Testament term for divine inspiration (2 Tim 3:16) that had originally been applied to the Old Testament Scriptures.” (117).

48. Pelikan, Credo, supra n. 2, at 18.

49. Id. at 28.

50. Id. See also id. at 31: “[T]he spiritual experience of the Church is also a form of Revelation[,]” quoting Florovsky, Georges V., The Eastern Fathers of the Fourth Century 156 (Notable & Academic Books 1989)Google Scholar.

51. For a helpful, brief account of this doctrinal development, see Johnson, Luke Timothy, The Creed: What Christians Believe and Why It Matters (Doubleday 2003) (especially pp. 103-132, 216–235)Google Scholar.

52. Deut 6:4 (RSV).

53. Johnson, supra n. 51, at 72. See also id. at 12: “[T]he specific character of the Christian experience of Jesus made it necessary to alter the Shema [Deut 6:4] and, with it, the story of God and God's people.”

54. See e.g. John 1:1-18; John 10:30.

55. See e.g. Prov 8:22; Mark 13:32; John 14:28; Acts 2:36; Rom 8:29; Col 1:15; Heb 3:2. See also Johnson, supra n. 51, at 131.

56. Cf. Johnson, supra n. 51, at 132: “[I]t remains important to deny that the Son is a creature, for at stake is the reality of salvation. Is it God who saves us in Jesus or not? The creed says yes, Arius said, no, not exactly.”

57. For the text of the Nicene-Constantinopolitan Creed, see Johnson, supra n. 51, at 37-38.

58. Pelikan, Credo, supra n. 2, at 28 (quoting the Nicene-Constantinopolitan Creed).

59. Id. See Deut 6:4 (“Hear, O Israel: The Lord our God is one Lord.”) (RSV).

60. Id. at 28-29. See also id. at 31:

[T]he mystery of creedal continuity and the mystery of creedal development—and the mystery of how there can be both continuity and development—are to be interpreted dialectically, in the light of the doctrine of the person of Christ, confessed by the councils and in the creeds, as the exemplar both of continuity and of change.

61. Quoting McCulloch, 17 U.S. at 407.

62. Quoting Home Bldg. & Loan Assn. v. Biaisdell, 290 U.S. 398, 442-443 (1934).

63. Quoting Congar, Yves M.J., Tradition and Traditions: An Historical and a Theological Essay 211 (Naseby, Michael & Rainborough, Thomas trans., Macmillan 1967)Google Scholar. Newman thought of development

as the opening out of the aspects of an “idea” which retains its original meaning through different historical forms. With Newman—not that he was the only one, but he was and remains to this day the locus classicus for the question—the idea of development became an inner dimension of [the idea] of tradition. He made a decisive contribution to the problem of the relationship between magisterium [i.e., the church's ongoing authority to teach] and history in tradition.

Cf. Capizzi, Joseph E., For What Shall We Repent? Reflections on the American Bishops, Their Teaching, and Slavery in the United States, 1839-1861, 65 Theological Stud. 767, 768 (2004)CrossRefGoogle Scholar: “Doctrine develops, and one responsibility of the theologian is to scrutinize church teaching and make necessary distinctions between development and departure. The notion of doctrinal development entails a notion of doctrinal continuity.”

64. Newman, supra n. 14, at 67.

65. Id. at 72.

66. Id. at 73.

67. Id.

68. Id. at 73.

69. Id. at 75.

70. Id.

71. Id. Some variations are consistent “with identity in political and religious developments,” while others are inconsistent; “[t]herefore ‘one cause of corruption in religion is the refusal to follow the course of doctrine as it moves on, and an obstinacy in the notions of the past.’” (125) (quoting Newman, Essay on Development, supra n. 14, at 179).

72. See (120) & (176) (referencing Robert Bork's invocation of Newman). See Bork, Robert H., The Tempting of America: The Political Seduction of the Law 352 (Free Press 1990)Google Scholar; and the appearance of the idea of “development of doctrine” in the work of Edward Levi and Donald Gianella. See Gianella, Donald A., Religious Liberty, Nonestablishment, and Doctrinal Development, Pt. II; 81 Harv. L. Rev. 513 (1968)CrossRefGoogle Scholar; Levi, Edward H., An Introduction to Legal Reasoning 14 (U. Chi. Press 1949)Google Scholar.

73. Noonan, John T. Jr., The Tensions and the Ideals, in Religious Human Rights in Global Perspective: Legal Perspectives 603–604 (der Vyver, Johan D. Van & Witte, John Jr. eds., M. Nijhoff Publishers 1996)Google Scholar. See also Noonan, John T. Jr., A Church that Can and Cannot Change: The Development of Catholic Moral Teaching (U. Notre Dame Press 2005)Google Scholar; Symposium, God, the Person, History and the Law: Themes from the Work of Judge John T. Noonan, Jr., 1 U. St. Thomas L.J. 1 (2003)Google Scholar, including several essays discussing Noonan's approach to development of doctrine; Noonan, John T. Jr., Experience and the Development of Moral Doctrine, in The Catholic Theological of America Proceedings of the Fifty-Fourth Annual Convention vol. 54, 43, 43-46 (Downey, Michael ed. 1999)Google Scholar; Noonan, John T. Jr., The Lustre of Our Country: The American Experience of Religious Freedom 209–210 (U. Cal. Press 1998)Google Scholar.

74. Newman, An Essay on the Development of Doctrine, supra n. 14, at 73 (emphasis added).

75. Cf. (78-79): “‘[W]hile the whole law is spiritual, the inspired meaning is not recognized by all, but only by those who are gifted with the grace of the Holy Spirit in the word of wisdom and knowledge,’” quoting Origin, , On First Principles 1.8Google Scholar, in Creeds, supra n. 2, at vol. 1, 64-65; and 79: “‘[T]he carnal man, the slave of the letter, is incapable by himself of deciphering this [the need to preserve the Old Testament in the Christian canon because it contains the type of Christ]…. Christ himself must grant that spiritual understanding.’” quoting Danielou, Jean, From Shadows to Reality: Studies in the Biblical Typology of the Fathers 282 (Hibberd, Wulstan trans., Newman Press 1960)Google Scholar.

76. Quoting Mo. v. Holland, 252 U.S. 416, 433 (1920).

77. Id.

78. See Kaveny, Response supra n. 12, at 61, critiquing a crude organic growth model of development.

79. Newman, Essay on the Development of Doctrine, supra n. 14, at 74.

80. Id.

81. Noonan, Tensions, supra n. 73, at 603.

82. Id. See Noonan, Experience, supra n. 73, at 56:

These developments [in moral doctrine] would not have occurred without challenges to convention, without argument, without conflict, without prayer, without the assistance of the Holy Spirit, and without connection with the core constituents of Christianity. Experience, raw experience, has not carried the day. Without experience, however, these developments could not have come to be considered or brought to fruition.

See also Noonan, Lustre, supra n. 73, at 209-210.

83. Noonan, Tensions, supra n. 73, at 603.

84. Quoting Levi, Edward Hirsch, An Introduction to Legal Reasoning 59–60 (U. Chi. Press 1949)Google Scholar.

85. Quoting the Second Vatican Council's Decree on Religious Liberty, Dignitatis Humanae. For the quoted text of Dignitatis Humanae see Vatican Council II, supra n. 43, at 799. Dignitatis Humanae is drawing on a saying of Jesus found at Matt 13:52, which Pelikan quotes from the New English Bible translation, “A teacher of the law can produce from his store both the new and the old.” (122)

86. Noonan, Experience supra n. 73, at 56:

[T]here cannot be an endless regress into further experience; some insights are primordial, and these are provided or confirmed by the words and the conduct of Christ. The revelation is not added to but what it requires is made evident in experience. As Dei Verbum tersely put it: “insight grows into the realities as into the words that have been handed on.”

(citing Dei Verbum, supra n. 43, at 754: “The Tradition that comes from the apostles makes progress in the Church, with the help of the Holy Spirit. There is a growth in insight into the realities and words that are being passed on.”).

87. See Perry, Michael J., Protecting Human Rights in a Democracy: What Role for the Courts?, 38 Wake Forest L. Rev. 635, 679 (2003)Google Scholar. See also Kramer, Larry D., Marbury and the Retreat from Judicial Supremacy, 20 Const. Commentary 205, 230 (2003)Google Scholar: “Judicial supremacy is not the logical or inevitable product of experience and progress. It remains now, as it was in the beginning, but one side in a recurrent and ongoing struggle to determine the proper role of ordinary citizens in a republic.”

88. Pelikan, supra n. 13, at 59.

89. Id.

90. Id.

91. Id. at 59-60 (emphasis added).

92. Schneiders, supra n. 24, at 172.

93. See e.g. id. at 157, 158-159, 169-178.

94. See id. at 161:

Both jurisprudence and speculative theology have been offered as clarifying instances of the “applied” character of true understanding. One does not really know what a law means, that is, one does not really understand it, unless one sees how it functions in relation to the case under consideration, which is, of course, not the case in terms of which the law was formulated. One does not understand theologically a datum of faith, for example, salvation through Jesus' death and resurrection, unless one sees what it means in terms of the people (including oneself) who inhabit one's own historical situation, which is quite different from the situation in which Jesus' paschal mystery originally occurred.

95. Id. at 176.

96. Id.

97. Id. at 178.

98. See Grey, supra n. 6, at 8 n. 26.

99. See Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 276 (1856): “The words, ‘due process of law,’ were undoubtedly intended to convey the same meaning as the words, ‘by the law of the land,’ in Magna Charta. Lord Coke, in his commentary on those words, (2 Inst. 50) says they mean due process of law.” (quoted by Pelikan at (128).

100. See e.g. Hyman, Andrew T., The Little Word “Due,” 38 Akron L. Rev. I, 44 (2005)Google Scholar: “Many scholars and jurists of all political persuasions have expressed doubts about using the Due Process Clause to strike down substantive statutes that are subjectivistically undue, and those doubts are nothing new.” See also id. at 8 the Supreme Court has “undermined [the] core meaning” of the Due Process Clause by regularly using it to override laws enacted by elected representatives; Ely, John Hart, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 935–936 (1973)CrossRefGoogle ScholarPubMed criticizing the Court's reliance on the Due Process Clause in Roe v. Wade, 410 U.S. 113 (1973); Lawrence v. Tex., 539 U.S. 558, 592-594 (2003) (Scalia, J., dissenting, criticizing the majority's due process analysis).

101. Quoting Newman, An Essay on the Development of Christian Doctrine, supra n. 14, at 180.

102. Id. at 289.

103. Id. (explaining that a “quest” for such principles “has been an ongoing preoccupation of the Supreme Court.”).

104. 3 U.S. 386 (1798).

105. Quoting id. at 388-389 (emphasis supplied by Pelikan).

106. 10 U.S. 87 (1810).

107. Quoting id. at 139 (emphasis supplied by Pelikan).

108. 198 U.S. 45 (1905).

109. Quoting id. at 76 (Holmes, J., dissenting) (emphasis added by Pelikan).

110. Id. at 131-132 (quoting Palko v. Conn., 302 U.S. 319, 325 (1937)) (emphasis added by Pelikan).

111. Calder, supra n. 91, at 398-399 (emphasis added). Pelikan in fact cites Iredell's opinion as evidence of the Court's ongoing quest for “definite and continuous principles” to guide doctrinal development. See (130) (“James Iredell felt constrained to articulate ‘the general principles, which influence me, on this point, succinctly and clearly,’”) (quoting 3 U.S. at 398) (emphasis added by Pelikan). But the “general principles” guiding Justice Iredell are clearly somewhat different from those relied upon by Justice Chase.

112. Id.

113. Perry, supra n. 10, at 24. Whose understanding is relevant? Those who proposed the language of the text, those who ratified it, and “We the people” in whose name the language was proposed and ratified. See e.g. id. at 52.

114. Id. at 34.

115. Id. at 26.

116. Id.

117. Id. at 28.

118. Id. at 29.

119. Id. at 198, n. 60 (quoting Gadamer, supra n. 25, at 308-309). See also id. at 29:

[A] court asked to apply a rule must decide in light of information not available to the promulgators of the rule, what the rule should mean in its new setting. That is a creative decision, involving discretion, the weighing of consequences, and, in short, a kind of legislative judgment ….

(quoting Posner, Richard A., What am I? A Potted Plant?, New Republic 23, 24 (09 28, 1987))Google Scholar.

120. See text, supra, at Pt. II.A.

121. Perry, supra n. 10, at 47.

122. Id.

123. See text, supra, at Pt. II.B.

124. Perry, supra n. 10, at 34.

125. Perry contends that it is “wildly implausible” in our political-legal culture to think that those who enact legal texts (especially constitutional texts) would understand themselves to be intending that all conflicts under the norm they are establishing should be resolved just as they would have resolved them; this “is an implausible construal of what many legal norms are taken to be—even by those who establish the norms.” Perry, id. at 31.

126. U.S. Const, amend. XIV, § 1.

127. Perry, supra n. 10, at 50.

128. Id. at 81.

129. Id.

130. Id. at 76.

131. Id. at 74-75.

132. Id. at 76.

133. Id. at 84.

134. Cf. (124), where Pelikan explains that Newman's “tests” or “notes” are, “in Owen Chadwick's phrase, ‘rather pegs on which to hang a historical thesis than solid supports for a doctrinal explanation.’”

135. Quoting Newman, Essay on Development, supra n. 14, at 378.

136. See text following supra n. 39, and text following supra nn. 86 & 87.

137. Indeed, in the midst of the developmental interpretive process, it might not be entirely clear where the path of fidelity ultimately leads. See Noonan, Lustre, supra n. 73, at 209-210:

“But do I know how it [i.e., the developmental process] will turn out or where I am in it?” …. “Remember,” Cleo said, “what Madison said, that Free Exercise was ‘an experiment.’ You're part of the experiment. You do have two hundred years of experience and some notable examples to guide you …. You can be confident that your voice and example will advance the experiment. The very incoherencies you and your advisors have encountered are opportunities for creative improvement.”