The Constitution, Legal Fiction, Judicial Decision, and The Bible

I am not a lawyer, I am a pastor. Having provided that crucial piece of information, the last couple of days have left me thinking about the constitution, the bible, and how people relate to them. This thought process comes from viewing no less than 10 straight Law & Order episodes during the Memorial Day marathon on TNT.

During one particular episode, DA Branch (Fred Thompson) emphatically takes down his framed US Constitution from the wall, hands it to ADA Sutherland and asks her to find anything about the right to privacy. Branch goes on to call that patriotic notion a form of "legal fiction." Later in the episode, ADA McCoy is arguing before a judge and uses the same language his boss had previously used concerning the "legal fiction" of privacy. McCoy wins the motion. What I found interesting is what McCoy said to Sutherland after winning. Without quoting here, he expressed his disgust with his victory, claiming that he had set back the forward progress of a living, breathing constitution that changes and adapts to the current need of the land and replaced it with a static, lifeless, limited interpretation that the judge fell for. McCoy went on to say that the previous years of the constitution becoming more than what it once was is now what it is, and we can't go back to "old school" thinking.

I found that interesting. From my limited knowledge and study, there are two primary ways to make changes to the constitution. One is through the amendment process. The authors of the constitution anticipated the desire of future generations to make changes to the Constitution, but they did not want these changes to come about too easily. So, the amendment procedure was put into place. Second is through "judicial decision." Not part of the official procedure to make an amendment to the constitution, judicial decision can make practical changes to the provisions of the Constitution. Simply put, Judicial Review is the power of the court to examine what congress pumps out to determine its constitutionality. Notice what Wikipedia says about Judicial Review:

"The doctrine [Judicial Review] also embraces the power of the Court to explain the meaning of various sections of the Constitution as they apply to particular cases brought before the Court. Since such cases will reflect changing legal, political, economic, and social conditions, this provides a mechanism, in practice, for adjusting the Constitution without needing to amend its text."

Notice carefully what is said of Judicial Review in the last sentence. It is a mechanism for adjusting the Constitution without needing to amend its text. That is very interesting. Here comes the million dollar question: In a document like the US Constitution, are we the people obliged to change and conform our lives to remain true to its original message, or do we make changes to it in order to reflect our "changing legal, political, economic, and social conditions." It seems McCoy is right here, the latter is preferred, and seems to be what the framers had in mind.

It is perhaps this very mindset that makes the bible so controversial. There are few who would make a legitimate argument that we should "amend" the bible by adding a "bible bill of rights." More common is what I will call the "biblical judicial review." Notice how the above quote reads by only changing one word: "changing legal, political, economic, and social positions, this (biblical judicial review) provides a mechanism, in practice, for adjusting the bible without needing to amend its text."

The constitution is ultimately provided to serve us. It establishes and limits what government can do, and when necessary, changes in order to remain relevant to where we are as a people. The bible is ultimately provided for us to serve its author, and when necessary, prompt us to change according to its message. A popular modern view of the bible is to understand it as eligible for judicial review. If we are behaving in a way that is the current accepted social position, then the bible must be adjusted to meet that standard. There are a handful of issues today where this is exactly what is happening.

An important distinction should be made. There is a difference between a genuine search for proper interpretation of Scripture and a case of biblical judicial review. The former seeks to glorify God by rightly interpreting Scripture and then make life changes based on that interpretation. This interpretation should come through several processes, including prayer, guidance by the Holy Spirit, listening to pastors and other devoted Christians, and reading what has previously been studied. The latter seeks to change the implications of the text based primarily on what is considered the societal norm for the day. This is a fine line and a person could easily confuse one for the other, thinking they have discovered a genuine interpretation when in fact they are only providing justification for their own actions. There is correct interpretation. There has never been a Christian in history to ever get it all right. What matters is that we place the text first, above ourselves, and seek to make changes to the glory of God. The biblical text is not up for amendment. It is certainly living and breathing (Heb.4:12), but it proclaims a message of old which will never change.