Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, June 19, 2014

Randolph (1821) and Smith (2005) on constitutional interpretation as scriptural interpretation and the Constitution as "mystic writing"

I've mentioned before Steven Smith's description of the Supreme Court as a kind of (anti-)magisterium. Part of Smith's argument is a comparison between "what the Court does with the Constitution" and scriptural interpretation:

[M]uch of what the Court does with the Constitution simply does not make sense except on assumptions similar to those that inform the interpretation of scripture– such as the assumption that the text is ultimately not the product of merely finite and mortal authors but rather the expression of some more transcendent mind whose meanings exceed the grasp of either the flesh-and-blood enactor-scribes or the judicial interpreters

Earlier today I came across another quotation that reminded me that the idea that the Supreme Court has taken up magisterial authority is no recent development. The Marshall Court garnered comparisons to papal authority, and the language of constitutional heresy and constitutional orthodoxy was not uncommon. Consider, for example, how Virginia governor Thomas Randolph in December 1821 discusses the Supreme Court's decision earlier that year in Cohens v. Virginia. He contends that the Constitution is a monument to the wisdom and harmony of the past; its imperfections are a testimony to the need for good faith in the present and future. And he criticizes the Court for mystically pretending the Constitution is something better than what it is:

The constitution of the United States is a durable monument of the wisdom and harmony of times past. Its very imperfections constitute an impressive memorial of the necessity for good faith in the passing and in future times. It is not a mystic writing given in charge to the federal judiciary as to a priesthood to be enveloped in a studied obscurity, consulted through mazes, and made to give such responses as may suit the peculiar views of political expediency, of incumbents of any political sect, at any period.

Thomas Mann Randolph, Richmond Enquirer, December 4, 1821, p. 3. 

 

 

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Walsh, Kevin | Permalink