Roberts and "Constitutional Faith" in the Globe

Legal scholar Professor Sandy Levinson's book, "Constitutional Faith," was the theme of an opinion essay in the Boston Globe today.  (I'm looking forward to seeing if the book moves up in the Amazon rankings as a result!).  According to the writer:

Levinson, in an argument first made in his 1988 book ''Constitutional Faith," argues that disputes over how to interpret the Constitution descend from the original schism of the Reformation. ''Anyone seeking to examine the operation of the Constitution within the American polity," he writes, ''must come to terms with the implication and traces left over from the Reformation era."

The constitutional schism, as he sees it, runs along two different axes. The first is methodological, and concerns the source of doctrine. For ''protestant" jurists--originalists like Scalia and Clarence Thomas (both, ironically, devout Catholics)--that source is the constitutional text alone. For their constitutionally ''catholic" colleagues, however, the text is augmented by ''tradition," even unwritten tradition. These are the ''living constitutionalists" (in the words of former Justice William Brennan), justices like Ruth Bader Ginsburg and Stephen Breyer, who are willing to believe the Constitution has something to say about issues like abortion and gay marriage that the Founders never thought to mention in the document itself.

The second axis concerns who has ultimate authority to interpret the Constitution. And here the Catholic position takes on a more conservative tint. As Levinson points out, the Reformation wasn't just a dispute over how much to interpret the Bible, but over who gets to interpret it. For Luther and his followers it was the individual worshipper, not the Church hierarchy, who was best qualified for the task.

And, by way of background, the writer points out that:

These days, when Republican senator Sam Brownback of Kansas can convert from conservative Methodism to conservative Catholicism without any appreciable effect on his public profile, it's perhaps easy to forget that there are, in fact, fundamental differences that separate the Catholic and Protestant traditions. At root, they are disputes over interpretation of Scripture and the authority of the Bible.  [RG:  As I mention below, it seems to me that they are just as much "disputes over" the nature, mission, and authority of the Church].

''The notion of Biblical inerrancy, of Biblical literalism, is really un-Catholic," says Alan Wolfe, a political scientist and scholar of religion at Boston College. ''The whole point of having a priesthood and a magisterium [the Latin term for the Church's teaching authority] is to say that the Bible, while a supreme guide, is constantly to be reinterpreted. That's why you have the Church." For Catholics, in other words, coequal with the Bible itself is ''tradition," the accretion of interpretation and elaboration that the Church builds onto Scripture.

It's been a few years since I read Levinson's book.  It struck me, I remember, as intriguing and interesting, but maybe a bit forced.  Certainly, there's something to the points that (a) constitutional law involves an authoritative text and an interpretive tradition, (b) there is a debate about the authority of the tradition's "take" on the text, and (c) over the years, the disagreements between Protestants and Catholics have also touched upon, if not stemmed from, similar arguments about the authority of, and connection between, text and tradition.

It's fine, I suppose, to lift the labels, "Catholic" and "Protestant" from the religious and theological contexts, and then re-attach them to the (apparently) similar "sides" of the debate in constitutional law.  The mistake, though -- it seems to me -- is in thinking that there is anything really "Catholic" about reading the Constitution in the way that Professor Levinson labels "Catholic" (same with "Protestant").  I'm not a theologian, of course, but it strikes me that the "Catholic" position in the text-and-tradition argument in the theological arena has a lot to do with the Catholic Church's (and the Protestants') ecclesiological claims.  The editorial writer suggests -- and I think he might go beyond Professor Levinson here -- that a "textualist" or "literalist" approach to constitutional law (the "Protestant" approach) is somehow inconsistent with a judge's Catholic faith.  But there's no reason for a Catholic judge -- who endorses entirely the "Catholic" take on text, interpretation, development, etc., -- to think that a written Constitution, ratified and amended through (pretty much) democratic processes, is the same kind of thing and should be interpreted in the same way as the "deposit of faith," or that the Supreme Court should be regarded in the legal scheme of things in the way that the Church's magisterium is regarded on the theological side.

I know there are theologically trained readers out there who can capture better what I'm trying to say, or point out my mistakes.  My point, in the end, is that -- while it might be useful to refer, as Levinson does, to a "Catholic" constitutionalism (i.e., the "living" Constitution, etc.) -- it actually is not the case that such an approach to reading our Constitution is, in fact, "Catholic" (or "Protestant").  Any thoughts?

Rick