Alexander's Column

Constitutional Exegesis v. Eisegesis

By Mark Alexander · Jul. 7, 2006

“The Constitution which at any time exists, ‘till changed by an explicit and authentic act of the whole People is sacredly obligatory upon all.” –George Washington (1796)

The errant notion of a Constitution subject to the evolving interpretation of the judiciary has as its origin the 1803 case of Marbury v. Madison, where Chief Justice John Marshall ruled, “It is emphatically the province and duty of the judicial department to say what the law is.” All well and good if the courts would continue to interpret the law exegetically, but as history would soon show, constitutional eisegesis was lurking just around the corner.

In fact, by the early 20th century the eisegetical interpretation of the Constitution had been given a name, courtesy of Howard McBain’s 1927 book, The Living Constitution. In the decades that followed, this notion of a “living constitution,” one subject to all manner of judicial interpretation, took hold in the federal courts. Judicial activists, who legislate from the bench by issuing rulings based on their personal interpretation of the Constitution, or at the behest of like-minded special-interest constituencies, were nominated for the federal bench and confirmed in droves.

This degradation of law was codified by the Warren Court, under the influence of Justice William Brennan, Jr., in Trop v. Dulles (1958). In that ruling, the High Court noted that the Constitution should comport with “evolving standards…that mark the progress of a maturing society.” In other words, it had now become a fully pliable document – one that Jefferson had warned us would be a “mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.”

By 1987, living constitutionalism had become such the norm that Supreme Court Justice Thurgood Marshall delivered a lecture, “The Constitution: A Living Document,” in which he argued that the Constitution must be interpreted to the age in which it existed, given prevailing political, moral and cultural norms.

More recently, “living” jurist Anthony Kennedy and court jesters Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens cited “national consensus” as a factor in last year’s Roper v. Simmons ruling. In doing so, they disregarded the Constitution’s prescription for federalism and republican government in the name of unmitigated democracy – and took us one step closer toward what every serious thinker since Plato has described as governance in its most degenerative form.

Just as the problem of biblical and constitutional eisegesis is essentially the same, so too is the solution. For centuries, a fundamental guiding principle has directed proper scriptural exegesis: Scripture interprets Scripture. That is to say, the primary lens for understanding a text is the text elsewhere in the Bible – thus, we interpret the Bible through what the Bible says.

With the Constitution, the concept is easily applied. The Separation Clause certainly calls Marbury into question, and the Tenth Amendment contradicts the Roper decision, not to mention Roe v. Wade and the illusory constitutional “right to privacy.” Further, the constitutional basis for Kelo v. New London is simply absent, as are our First Amendment rights under McCain-Feingold. And let’s not forget the myriad laws that infringe upon our rights guaranteed by the Second.

Just as the Bible’s New Testament may be said to interpret its Old Testament, so too is the Constitution accompanied by a binding interpretation, the Federalist Papers. Authored by Founding Fathers Alexander Hamilton, James Madison and John Jay, the Federalist Papers, as the definitive explication of our Constitution’s original intent, clearly define original intent in regard to constitutional interpretation. In Federalist No. 78 Hamilton writes, “[The Judicial Branch] may truly be said to have neither FORCE nor WILL, but merely judgment…liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.” In Federalist No. 81 Hamilton notes, “[T]here is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution….”

Today, more than two centuries later, Justice Antonin Scalia warns of such judicial activism: “As long as judges tinker with the Constitution to 'do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.”

By contrast, the heart of the Constitution, and hence the heart of constitutional constructionism, is this: The federal government should be sovereign and strong in its constitutionally delimited competencies; in matters where the Constitution is silent, however, the states and the people, not the national government, are sovereign. This understanding transforms the debate between strong governance (the liberal position) and weak governance (the libertarian position) to one of constitutional governance (the conservative, constructionist position). In this way, the text itself – not its judicial caretakers – interprets the text. This is exegetical governance. Indeed, this is constitutional governance.

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