BRIAN HONSBERGER
To the public, Dobbs v. Jackson was about abortion rights, but in the court case, the subject was hermeneutics. It is hard to believe but true that most college graduates complete their studies without hearing the word or engaging the concept of hermeneutics. Like the scarecrow in The Wizard of Oz, they receive a diploma but not an education. Hermeneutics is most simply defined as the methodology of interpreting texts.
As a student of ancient texts, I enjoy accessing a rich array of hermeneutical techniques. Some were developed over 2,000 years ago, and others are rather new. As a Catholic, I enjoy the added benefit of a hermeneutical constitution, Dei Verbum, which lays down a standard for bible interpretation. Catholic bible scholars, even with the same hermeneutic, come to different interpretive conclusions, but they share a certain language and standard in which they can at least have a conversation.
Judges have their own tradition of interpreting texts, with well-known principles such as precedent, but they do not enjoy a shared, comprehensive method for interpreting legal texts.
All judges agree that precedent is important, but how important is it, especially compared to other interpretive principles? There are different schools of thought floating around the United States that answer this question in varying ways.
It is common for students to encounter one method of interpretation in law school just to study a different method to pass their state bar exam. What happens to the legal profession when there is no agreed-upon method for interpreting the Constitution? Division and chaos are the only possible result, and until an interpretive method is agreed upon, rights will be given and taken away, wrestled to and fro, depending on the stance held by the majority of justices.
Supreme Court Justice Samuel Alito’s majority opinion in Dobbs reads like a lesson in interpreting the Constitution. It is more of a hermeneutical treatise than a moral or scientific one. He and the majority of justices base their overturning of Roe and Casey not on the science of obstetrics or the moral standards associated with any religion but on how Roe and Casey were legally justified.
Alito explains that with the Roe ruling, both liberals and conservatives found the legal justification weak, manipulating vague phrases in amendments to the constitution to justify the decision. It is well known that Ruth Bader Ginsburg, though an abortion advocate, was not pleased with the legal justification of Roe (see lecture at University of Chicago). If justices with opposite views on abortion agree that the legal justification for Roe was poor, we must all ask, what makes a legal justification satisfactory?
The answer is scandalous: There is no agreed-upon standard. This lack of a standard, in my opinion, is more concerning than any single court decision because, without it, all rights are temporary, ready to be changed according to the whims of whoever is appointed to the Supreme Court.
Alito explains his principles for interpreting the Constitution in his majority opinion and uses these principles throughout the document. One such principle involves the continuity of legal interpretation over time. He gives a long history of what he deems relevant legal standards regarding abortion over the past several hundred years, with a special emphasis on the way people thought at the time each document used to justify Roe was written. Some call this interpretive method originalism, and it is one of many principles that can make up a comprehensive philosophy of legal interpretation.
Some judges, like Chief Justice Roberts, claim no overarching interpretive philosophy. He used this analogy to describe his approach: “I am an umpire calling balls and strikes. I don’t pitch or bat.” As a result, Roberts often makes decisions that have the least possible impact on current laws. I also observe that Roberts weighs precedent more than most other justices.
The more liberal justices have tended to subscribe to the hard-to-explain “living document” hermeneutic, which attempts to soak up the feel of the constitution as a whole and adapt it to a contemporary context. An example of this is in Casey, where the majority opinion states, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
These words, when written, left the legal world perplexed. Having no textual basis in the Constitution, they sounded more like Cartesian philosophy than law. “I think, therefore I am” rather than “I am, therefore I think.” This subjective “feel” approach to legal interpretation is where Alito puts his critical focus. To paraphrase, he argues in Dobbs that interpreting the constitution as a “living document” is another way of saying, “manipulate the text to do whatever you want.”
It is telling that in the majority opinions of Roe and Casey, there is little desire to fulfill the principle of legal continuity over time, and this is the primary sticking point in American legal interpretation. Should the law tend towards consistency over time, or should it wildly change from generation to generation, according to popular opinion?
Agreeing on this “continuity over time” debate, along with agreement on other basic principles of constitutional interpretation and how they weigh against one another, is the only way the United States can persist. This goes for any organization that bases itself on a written document.
Some may fear that an agreed-upon hermeneutic would result in every justice having the same opinion, but this is never the case. It would allow for a great diversity of interpretation. Shared interpretive principles give us a chance to have intelligent conversations, to agree on some firm foundation of how to think, and citizens deserve this bare minimum from the courts.
If I were Roberts, a law school professor, a bar president, or a legislator investigating a judicial nominee, I would begin demanding a universal standard. Let the standard bring some stability. Never giving someone a right is much easier than giving it and then taking it away. Brian G. Honsberger serves as Executive Director of St. Paul Inside the Walls in Madison. In this role he coordinates Advocati Christi, a group of Catholic lawyers and judges.
Brian G. Honsberger serves as Executive Director of St. Paul Inside the Walls in Madison. In this role he coordinates Advocati Christi, a group of Catholic lawyers and judges. An Adjunct Professor at the Immaculate Conception Seminary at Seton Hall University, he teaches Biblical studies, theology, and
evangelization courses.