Sola Scriptura and the Magisterium: Reconciling Two Biblical Analogues of Constitutional Interpretation Through a Judicial Hermeneutic of Storytelling

Abstract

The validity of the two predominant methods of interpreting the U.S. Constitution has been long and hotly debated. Both of these methods— originalism and living constitutionalism—draw their force from hermeneutics, or methodological principles of interpretation that commonly assist readers of scriptural texts. These divergent constitutional hermeneutic approaches ultimately treat the Constitution as a civic scriptural or holy text, and the multiplicity of interpretations that result from them, largely derive from one of two principal scriptural or Biblical hermeneutical approaches. Indeed, the two principal approaches to constitutional interpretation map onto one of either “sola Scriptura” or Magisterial traditions. Sola Scriptura denotes the ethos of determining the meaning and purpose of a text apart from any authorial imperative, whereas a magisterial tradition determines the meaning and purpose of a text by way of a predetermined and dispositive authority. Importantly, and fundamentally, both approaches repose authority in a Magisterium writ large to settle the meaning of their respective sacred texts. (In the case of the Constitution, that Magisterium is reposed in the United States Supreme Court). However, that legal scholars and courts (perhaps unwittingly) employ biblical or theological modes to arrive at a constitutional interpretation, forecloses other, non-sectarian hermeneutical modes that assist judges, particularly those who preside over lower jurisdiction courts, to decide cases. Speaking as a judge pro tempore in a limited jurisdiction state court, as well as a tenure-track law professor at a state school, I propose that an alternative methodology of interpretation of storytelling may serve to honor both text and community. A “judicial hermeneutic” of storytelling may reconcile the enduring (and unproductive) “religious” dichotomy of constitutional interpretation and better address the cause of justice in everyday constitutional matters. Apart from possibly mitigating the dilemma of interpretation, such an approach may also promote a multiplicity of meaning, and a greater plurality of voices in this constitutional arena.

Keywords: JUDICIAL HERMENEUTIC OF STORYTELLING, interpreting the U.S. Constitution, alternative methodology, Law and Literature, Religion and the Law, Natural law, Jurisprudence, Judicial Storytelling, Constitutional Law