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.

We invite you to observe Constitution Day by visiting an excellent resource on our nation’s heritage. Link to The Patriot’s Historic Documents, and see our excellent selection of Constitutional items at our Patriot Shop

3 Comments

Bob Davidson said:

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.Judicial Caretakers will be the down fall of our exegetical interpretation turned Eisegesis interpretation!

Friday, July 2, 2010 at 12:29 PM

Abu Nudnik in Toronto said:

Agreed on many points: Kelo, Roper and others not mentioned: Raich for instance.But conservatives themselves use both exegesis and eisegesis when they point out that, in the time the constitution was written "regulate" meant "make regular" (a free-trade zone between the colonies). That historical insight is not exegetical.Not sure about "right to privacy" either. While there is no explicit right, the right to property strongly implies it since the human body is the first property.On the moral issue we agree. Sexual differentiation exists for the purpose of procreation: that's a scientific fact, not a religious attitude.

Thursday, June 2, 2011 at 11:27 PM

Ed Clow in Wheeling, IL said:

The time for wariness of eisegesis v exegesis is during confirmation of judges.
The quoted passage from the Federalist Papers is misused here, and misleading. In fact the very paragraph that contains this quote, ends with the observation that the power of interpretation is inherent in the very function not only of the Supreme Court, but in the function of every state court then in existence.
Hamilton is explicit throughout 78, and states that the courts must declare void all acts contrary to the "manifest tenor" of the Constitution. Not "the text", not "the intent"; the "manifest tenor".
The central theme of the Papers as they apply to the Judiciary is that these powers are essential to the very concept of limited government, a fact that becomes obvious in the course of any exegesical reading of the Papers.

Monday, March 18, 2013 at 7:33 PM