Faith in Interpretation
Aaron J. Walayat
What is the relationship between faith and constitutional interpretation? Superficially understood, this could refer to popular polemic of taking the specific religious faiths (religious affiliations) of Supreme Court justices, reducing these affiliations to political opinions, and construing these observations with the justice’s interpretive ideology. More esoterically, “faith” can also be used pejoratively to refer to the Supreme Court justice’s espousal of a specific interpretive ideology. This can include Eric Segall’s polemic against “originalist” justices and the assurance of these justices in their belief that they are capable of ascertaining the “original public meaning” of words at a specific time. Or perhaps it can even refer to the polemic of Justice Hugo Black against the majority in Griswold v. Connecticut and their faith in the ability to perceive conduct which is “offensive to a sense of ‘fairness and justice.’”
The comparisons between faith and interpretation levied by the strawmen I have described above are certainly valid forms of political polemicism and methodological critique. Nevertheless, each comparison equivocates in its conception of what “faith” means, with the first approach equating faith to religious affiliation while the second equates faith with a blind trust in interpretive methodologies, whether it is the originalism criticized by Segall or the interpretivism criticized by Justice Black.
A reliance of a justice on “faith,” in a profession like the law, which requires the application of “reason,” certainly comes across as indicating that the justice is not meeting the rigor required by “reason.” Further, it simply construes faith as a basis ultimately weaker than reason, with the characterization of methods which rely on “faith” as naturally deficient to methods which are based on “reason.” In addition, there is also a societal problem with this presentation of “faith,” as the public is likely to understand“faith” in this pejorative sense, extending it to refer to a general conception of “faith” as understood outside of the specific universe of a specific legal critique.
This is problematic because, properly understood, every school of judicial interpretation requires “faith” in some sense. The concept of “faith” presented in this essay refers to a belief in the intelligibility of the universe and the trust of people in human cognitive abilities to comprehend this intelligible universe. A reliance on faith of this sort does not make the act of interpretation less valid, but rather makes the interpretation itself meaningful. Indeed, “faith” is necessary to formulate the language of critique itself, adding meaning to statements regarding the “correctness” of a legal interpretation. Thus, while legal interpretation is certainly an exercise of “reason,” the whole exercise of reason works on the basis of faith, a faith which validates the intelligibility of the process and the meaningfulness of participation in the process. A realization about the foundations of the process in faith, however, should not invalidate the meaningfulness of reason to the process, but should instead solidify the reality of faith in human experience, particularly of human experience within the political community and in the legal process.
This essay begins with a discussion of the apparent conflict between faith and reason, specifically, as it is conceived in the thought of Leo Strauss. From there, it will consider the nature of this conflict as it applies in political life and, more narrowly, in the “legal life.” In this way, the essay seeks to provide a better understanding about the centrality of “faith” in legal interpretation.
A Conflict Between Faith and Reason
The 20th-century philosopher Leo Strauss summarized the “theme of [his] studies” as an investigation into the “theologico-political problem.” Part of the theologico-political problem, as Strauss conceived it, was the tension between theology and philosophy, between faith and reason, between Jerusalem and Athens, a conflict without the possibility of reconciliation. According to Steven Smith, Strauss conceived of faith and religion as beginning from a place of obedience and dependency on God. In this sense, piety is prioritized over critical inquiry. This conception of faith, then, naturally conflicted with Strauss’s conception of philosophy, which he described as a “way of life” or as an “effort to understand the whole as cosmos by means of one’s unaided reason alone.”
In addition to Strauss’s belief that the conflict between faith and reason could never be reconciled, he also suggested that neither could ever refute the other. On the one hand, revelation could never refute reason, for in Strauss’s conception, a person’s evidence for faith came from the “personal experience” of God. But, how does the human approach a specific “personal experience” in light of other revelations, whether through other events of personal experiences of God or through other forms of revelation, such as through the Bible? If the faith life depends only on revelations from God, whether through personal experience or through the Bible, etc., there is still a stage in which the person receiving the revelations must attempt to comprehend or even systematize various revelations and various religious experiences. The question may be, for example, “is my current personal experience of God consistent with a previous personal experience of God?” or “is my current personal experience of God consistent with the revelation of God through the Bible?” This process requires interpretation and an exercise of reason which cannot lean on piety alone, as the human person must decide on the basis of his piety, even if the reasons for the person’s piety are based on specific experiences of revelations.
A classic biblical example of this would be God’s order to Abraham in Genesis 22 to sacrifice his son, Isaac. Much has been made of the story, particularly questions about why Abraham would follow God’s order despite God’s previous revelations to Abraham that (1) God would make Abraham into a great nation despite his childlessness (Genesis 12:2) and (2) that his wife Sarah would conceive and deliver Isaac despite her old age (Genesis 18:10-12). Why would Abraham accept the command to kill his son despite these other revelations? Would the current order from God not appear inconsistent with the others? Why would he believe that the voice telling him to sacrifice Isaac is God, and not an evil spirit or some other supernatural entity? The text does not tell us, but one interpretation would be that Abraham followed the order to kill Isaac because, while the substance of the order may appear inconsistent, the process of receiving the revelation was consistent with Abraham’s previous experiences. Abraham was still able to recognize the process of the revelation, or more poetically, Abraham recognized God’s voice. But this, however, required Abraham to exercise his reason to determine whether a specific instance of revelation was consistent with his overall experience with God, an exercise which could not be based on dependency on God alone but on the process of reason based on comparing his various experiences with God. As such, Strauss would argue that revelation, and a religion that demands obedience to God alone, could not refute reason and philosophy, as these processes were still required to make sense of the experience of revelation.
At the same time, Strauss also claims that philosophy has never, and could never, refute revelation. From the point of view of a philosopher, one who sees philosophy as a “way of life” in the Straussian vein, revelation always remained a possibility, and to outright deny revelation as a possibility would presuppose a belief (a belief in the impossibility of revelation) that is ultimately grounded without evidence. If a philosopher sets out, for example, to disprove the possibility of revelation on the presupposition that revelation is impossible, he would not be exercising unaided human reason, but is instead accepting a dogma, the dogma that revelation is not a true source of knowledge, as a premise. In Strauss’s words, “all alleged refutations of revelation presuppose unbelief in revelation.” However, it would appear philosophy as Strauss conceived it, is also unintelligible, for, as he wrote, “the quest for evidence knowledge rests itself on an unevident premise.”
Existence in Political Life
Despite the language of conflict and tension between philosophy and revelation, Strauss does not appear to face this problem with despair. While he sees the conflict as “disconcerting,” he also sees it as “reassuring and comforting.” Indeed, Smith writes that, to Strauss, this problem represented the “core” of the West and even the “secret of its vitality.” To Strauss, the conflict may not succeed in its mission of guiding human beings away from the nihilism suggested by the possible meaninglessness of reason without revelation and revelation without reason.
In some ways, Strauss’s approach shares some aspects with Friedrich Nietzsche’s attempt to come to terms with nihilism. Alasdair MacIntyre, writing on Nietzsche’s ethics, describes Nietzsche’s “historic achievement” as “understand[ing] more clearly than any other philosopher … not only what purported to be appeals to objectivity were in fact expressions of subjective will.” In this way, despite nihilism, Nietzsche embraces “existence,” seeing human beings and expressing “will” over reason. Nietzsche dismisses attempts to “discover rational foundations for an objective morality and of the confidence of the everyday moral agent in post-Enlightenment culture that his moral practices and utterances are in good order.” Because there is no reason, it was instead necessary to allow “will [to] replace reason and … make ourselves into autonomous moral subjects by some gigantic and heroic act of the will….”
While MacIntyre agrees with Nietzsche’s diagnosis of the unintelligibility of Enlightenment ethics, he dismisses Nietzsche’s prescription as equally unintelligible. For MacIntyre, the problem remained: “how [could one] construe[,] in an entirely original way, how to invent a new table of what is good and a law”? MacIntyre’s Nietzsche, then, asks us to build with tools we do not have, for his elegant deconstruction of reason as a tool for discovering moral truths leaves the moral agent with few tools in aid of an exercise of the will. But, setting aside MacIntyre’s interpretation and critique of Nietzsche, which has itself been criticized, there are some important observations that can be gleaned from Nietzsche’s focus on the act of will which bear some light on Strauss’s position that the theologico-political problem must be “lived.” In both Nietzsche and Strauss, the existence of human beings and the need of the human being to live a life trumps the consequences of the unintelligibility of faith without reason and reason without faith. Practically speaking, it matters little whether our reason or a revelation from God tells us that something is true. This does not stop the life of the human being from proceeding. One cannot merely dwell on the consequences of the absurd but must proceed with their existence. Whether one finds, believes, attributes, or rejects meaning in life, it does not change the fact that life is, nonetheless, lived.
I think an example of this can be seen in political life. By “political life,” I do not refer to current politics and political rhetoric, nor even to the current nation-state. Rather, I mean human experience as it exists within a political community. Man is, in Aristotle’s famous words, a “political animal.” This conception sees human beings creating associations to pursue some good, with the political association seeking the common good of its constituents. In regard to the conflict between faith and reason, the political community does not have the luxury of determining whether reason is possible or whether it lies at the mercy of faith. Rather, it must operate to seek common goods despite this limitation. In this way, the political community relies on reason, on the human ability to practically reason, and on seeking the common good. However, it also relies on faith, not only on a faith in useful fictions (like noble lies), but on the faith that common goods are attainable, that practical human reason exists, and that the political community is capable of perceiving and pursuing common goods.
The conflict between revelation and reason offers confusing consequences. Revelation requires reason to comprehend examples of itself, but reason cannot escape the possibility of its own unintelligibility. It is not that either reason or revelation are false, but that human beings cannot even form truth statements about the falsity of either without appealing to some form of faith. Nevertheless, in the political community, human beings do not have the luxury of avoiding comment. The political life requires decisions to be made for the pursuit of common goods, the unintelligibility of the decision-making process notwithstanding. As such, some form of reason is required for existence, and given the possibility of unintelligibility, this requires faith in that reason.
Faith in the Legal Life
Now that we have examined the conflict between reason and revelation and the necessity of faith in the political life, we can now examine the role of faith in the legal life. As conceived in this essay, the practice of the law is part of the political life, understood in the broad terms discussed above. Law is not a subset of partisan politics, but a part of the social and political life in general. From this perspective, “faith” is also exercised in justifying the making of legal decisions and in making legal interpretations. This is not only the case in the famous examples of so-called “legal fictions,” but also the faith of human reason discussed above. Further, not only is this faith a “faith in reason,” but it is also faith in the comprehensibility of the limited legal universe. Every school of interpretation is based on some faith, such as the faith in the ability of human beings to perceive an intelligible legal universe, whether this universe is limited to the text of the documents, the original intentions of the drafters, the original public meaning of the words, the interpretive, transformative meaning developed over societal change in which the words have evolved, the reductivity of behaviors of human beings, etc. But more importantly, these schools of thought also rely on a faith in the comprehensibility of the legal universe and the human intellect’s ability to comprehend this universe.
To some extent, Justice Oliver Wendell Holmes, Jr. identified the nature of law as an act of will, an exercise of existent human beings acting despite uncertainty in the reality of human reason. Interpreting human life in this frame appears to support Justice Holmes’ statement that “the life of the law has not been logic, it has been experience.” In this way, Justice Holmes’s conception of the law as a product of the experience of human beings prioritized existence over a faith in the “divine” qualities of the common law, as Justice Holmes indicated in his opinion that the common law is not a “brooding omnipresence in the sky.” Nevertheless, Justice Holmes also appears to have avoided prioritizing human reason over existence, as he stated that the law is merely “prophecies of what the courts will do in fact, and nothing more pretentious.”
Putting together these selective quotes from Justice Holmes, the passages suggest that human “existence” is prioritized in the political and legal life of human beings. But experience itself, the culmination of acts of will through history, compiled and rationalized by judges exercising their own acts of will in interpretation, are themselves acts of reason, through learned study, observation, analysis, and application of the law. Even if the life of the law has not been logic, it still requires the exercise of human reason, a reason presumed necessary to engage in the law. In this way, reason, regardless of its reality, is an inextricable part of human experience. Further, reason is taken as a self-evident (or assumed) truth of human experience accepted on the basis of faith. This would be a faith in the possibility of reason at all, a faith which, like reason, also proves to be a part of human existence. It is this faith, serving as the foundation, that makes the political life, the legal life, and legal interpretation, meaningful.♦
Aaron J. Walayat is an attorney based in Pittsburgh, Pennsylvania. He graduated with his J.D. from Emory University in 2019 and his B.A. from Washington & Jefferson College in 2016. While at Emory, he was a former member of the Journal of Law and Religion.
Walayat, Aaron. “Faith in Interpretation.” Canopy Forum, August 15, 2023. https://canopyforum.org/2023/08/15/faith-in-interpretation/.